The Oxford Handbook of the Sources of International Law [Hardcover ed.] 0198745362, 9780198745365

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The Oxford Handbook on

THE SOURCES OF INTERNATIONAL LAW

The Oxford Handbook on

THE SOURCES OF INTERNATIONAL LAW Edited by

SAMANTHA BESSON and

JEAN D’ASPREMONT With the assistance of

SÉVRINE KNUCHEL

1

1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2017 The moral rights of the authors have been asserted First Edition published in 2017 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2017943890 ISBN 978–​0–​19–​874536–​5 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Preface

The sources of international law have always constituted a thriving field of theoretical and practical enquiry. This Handbook takes stock of those debates and contains fifty-​two cutting-​edge chapters by fifty-​six leading international lawyers and theorists. An introduction co-​authored by the two editors sets the scene by identifying the origins, functions, centrality, and limitations of the doctrines of the sources of international law, also addressing some of the main challenges with which they are confronted, as well as presenting the aims of the volume and the chapters that compose it. The contributions to this volume, published here in English for the first time, address central questions about the sources of international law. The Handbook does neither follow the usual structure of discussions of sources of international law to date nor a source-​by-​source model. On the contrary, the structure of this volume questions the previous order and presentation of the sources of international law, and focuses on four novel perspectives: the histories, theories, functions, and regimes of sources of international law. Chapters in Part I (Histories) provide detailed and critical accounts of how sources of international law have been conceived by both practitioners and scholars during the history of international law (from the scholastic period to the contemporary anti-​formalist era), including a chapter on the history of Article 38 of the Statute of the International Court of Justice. Chapters in Part II (Theories) explore how the main theories of international law have addressed and understood sources of international law. Chapters in Part III (Functions) examine the relationships between the sources of international law and the characteristic features of the international legal order that are or should be related to international law-making. Chapters in Part IV (Regimes) address various questions pertaining to the sources of international law in specific fields of international law. The correspondence or, on the contrary, lack of correspondence between the arguments made in the different sections constitutes one of the innovative features of the Handbook. Another characteristic of this volume lies in its ‘dialogical’ method: it contains two chapters on each topic, with the author of the second chapter engaging as much as possible with the arguments of the author of the first chapter. Yet, each chapter may also be read independently from the other, as a self-​standing contribution to the topic. Cross-​fertilization and coherence, as well as the emphasis on discrepancies

vi   preface among the views presented in the volume have been made possible thanks to the excellent and intensive discussions that took place between authors of each pair of chapters and each section of the book, but also across these divisions during the two workshops that were organized in December 2014 and September 2015 in Fribourg. We wish to thank warmly Dr Sévrine Knuchel, senior research assistant at the University of Fribourg from 2015 to 2018, for her tremendous and unfailing editorial assistance throughout the long process that brought us from the collection of first abstracts to the finalization of fully fledged chapters. Special thanks are also due to Dr Anne-​Laurence Graf Brugères for her assistance in the first phase of the project (2013–​2014), and especially in drafting the application to the Swiss National Science Foundation and the organization of the first authors’ workshop. We are grateful to Ms Merel Alstein and Mrs Emma Endean-​Mills at Oxford University Press for their support and kind forbearance during the long, and sometimes challenging, process of putting this book together. We would also like to thank the University of Fribourg’s Research Pool and the Swiss National Science Foundation for providing vital financial support for the research project as a whole from 2013 to 2018, and especially for two (hopefully memorable!) authors’ workshops we held in Fribourg. Last, but not least, our special thanks are owed to all of our contributors for making this ambitious project such a stimulating, formative, and worthwhile experience. Thinking about sources goes on! Samantha Besson and Jean d’Aspremont Fribourg and Manchester, February 2017

Contents

Table of Cases  Table of International Instruments  List of Abbreviations  List of Contributors 

The Sources of International Law: An Introduction  Samantha Besson and Jean d’Aspremont

xvii xxxiii xlvii li

1

PART I  THE HISTORIES OF THE SOURCES OF INTERNATIONAL LAW SECTION I  SOURCES IN THE SCHOLASTIC LEGACY 1. Sources in the Scholastic Legacy: Ius Naturae and Ius Gentium Revisited by Theologians 

45

Peter Haggenmacher

2. Sources in the Scholastic Legacy: The (Re)construction of the Ius Gentium in the Second Scholastic  Annabel S. Brett

64

SECTION II  SOURCES IN THE MODERN TRADITION 3. Sources in the Modern Tradition: An Overview of the Sources of the Sources in the Classical Works of International Law  Dominique Gaurier

85

viii   contents

4. Sources in the Modern Tradition: The Nature of Europe’s Classical Law of Nations 

99

Randall Lesaffer

SECTION III  SOURCES OF INTERNATIONAL LAW IN THE NINETEENTH-​C ENTURY EUROPEAN TRADITION 5. Sources of International Law in the Nineteenth-​Century European Tradition: The Myth of Positivism 

121

Miloš Vec

6. Sources of International Law in the Nineteenth-​Century European Tradition: Insights from Practice and Theory  Lauri Mälksoo

146

SECTION IV  THE HISTORY OF ARTICLE 38 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE 7. The History of Article 38 of the Statute of the International Court of Justice: ‘A Purely Platonic Discussion’? 

165

Ole Spiermann

8. The History of Article 38 of the Statute of the International Court of Justice: The Journey from the Past to the Present  Malgosia Fitzmaurice

179

SECTION V  SOURCES IN THE ANTI-​F ORMALIST TRADITION 9. Sources in the Anti-​Formalist Tradition: A Prelude to Institutional Discourses in International Law 

203

Mónica García-​Salmones Rovira

10. Sources in the Anti-​Formalist Tradition: ‘That Monster Custom, Who Doth All Sense Doth Eat’  Upendra Baxi

225

contents   ix

SECTION VI  SOURCES IN THE META-​H ISTORY OF INTERNATIONAL LAW 11. Sources in the Meta-​History of International Law: From Liberal Nihilism and the Anti-​Metaphysics of Modernity to an Aristotelian Ethical Order

245

Anthony Carty and Anna Irene Baka

12. Sources in the Meta-​History of International Law: A Little Meta-​Theory—​Paradigms, Article 38, and the Sources of International Law  Mark Weston Janis

264

SECTION VII  LEGAL HISTORY AS A SOURCE OF INTERNATIONAL LAW 13. Legal History as a Source of International Law: From Classical to Modern International Law 

279

Robert Kolb

14. Legal History as a Source of International Law: The Politics of Knowledge  Samuel Moyn

301

PART II  THE THEORIES OF THE SOURCES OF INTERNATIONAL LAW SECTION VIII  SOURCES IN LEGAL-​P OSITIVIST THEORIES 15. Sources in Legal-​Positivist Theories: Law as Necessarily Posited and the Challenge of Customary Law Creation 

323

David Lefkowitz

16. Sources in Legal-​Positivist Theories: The Pure Theory’s Structural Analysis of the Law  Jörg Kammerhofer

343

x   contents

SECTION IX  SOURCES IN LEGAL-​F ORMALIST THEORIES 17. Sources in Legal-​Formalist Theories: The Poor Vehicle of Legal Forms 

365

Jean d’Aspremont

18. Sources in Legal-​Formalist Theories: A Formalist Account of the Role of Sources in International Law  Frederick Schauer

384

SECTION X  SOURCES IN INTERPRETATION THEORIES 19. Sources in Interpretation Theories: The International Law-​ Making Process 

401

Ingo Venzke

20. Sources in Interpretation Theories: An Interdependent Relationship  Duncan B. Hollis

422

SECTION XI  SOURCES IN THE META-​T HEORY OF INTERNATIONAL LAW 21. Sources in the Meta-​Theory of International Law: Exploring the Hermeneutics, Authority, and Publicness of International Law 

447

Matthias Goldmann

22. Sources in the Meta-​Theory of International Law: Hermeneutical Conversations  469 Alexandra Kemmerer

SECTION XII  LEGAL THEORY AS A SOURCE OF INTERNATIONAL LAW 23. Legal Theory as a Source of International Law: Institutional Facts and the Identification of International Law  Iain Scobbie

493

contents   xi

24. Legal Theory as a Source of International Law: Doctrine as Constitutive of International Law  Alain Papaux and Eric Wyler

513

PART III  THE FUNCTIONS OF THE SOURCES OF INTERNATIONAL LAW SECTION XIII  SOURCES AND THE LEGALITY AND VALIDITY OF INTERNATIONAL LAW 25. Sources and the Legality and Validity of International Law: What Makes Law ‘International’? 

541

Pierre d’Argent

26. Sources and the Legality and Validity of International Law: Natural Law as Source of Extra-​Positive Norms  Mary Ellen O’Connell and Caleb M. Day

562

SECTION XIV  SOURCES AND THE SYSTEMATICITY OF INTERNATIONAL LAW 27. Sources and the Systematicity of International Law: A Philosophical Perspective 

583

Michael Giudice

28. Sources and the Systematicity of International Law: A Co-​Constitutive Relationship?  Gleider I. Hernández

604

SECTION XV  SOURCES AND THE HIERARCHY OF INTERNATIONAL LAW 29. Sources and the Hierarchy of International Law: The Place of Peremptory Norms and Article 103 of the UN Charter within the Sources of International Law  Erika De Wet

625

xii   contents

30. Sources and the Hierarchy of International Law: Source Preferences and Scales of Values  Mario Prost

640

SECTION XVI  SOURCES AND THE NORMATIVITY OF INTERNATIONAL LAW 31. Sources and the Normativity of International Law: A Post-​ Foundational Perspective 

661

Detlef von Daniels

32. Sources and the Normativity of International Law: From Validity to Justification  Nicole Roughan

680

SECTION XVII  SOURCES AND THE LEGITIMATE AUTHORITY OF INTERNATIONAL LAW 33. Sources and the Legitimate Authority of International Law: A Challenge to the ‘Standard View’? 

703

Richard Collins

34. Sources and the Legitimate Authority of International Law: Democratic Legitimacy and the Sources of International Law  724 José Luis Martí

SECTION XVIII  SOURCES AND THE SUBJECTS OF INTERNATIONAL LAW 35. Sources and the Subjects of International Law: A Plurality of Law-​Making Participants 

749

Robert McCorquodale

36. Sources and the Subjects of International Law: The European Union’s Semi-​Autonomous System of Sources  Bruno De Witte

769

contents   xiii

SECTION XIX  SOURCES AND THE ENFORCEMENT OF INTERNATIONAL LAW 37. Sources and the Enforcement of International Law: What Norms Do International Law-​Enforcement Bodies Actually Invoke? 

789

Yuval Shany

38. Sources and the Enforcement of International Law: Domestic Courts—​Another Brick in the Wall?  Eleni Methymaki and Antonios Tzanakopoulos

812

PART IV  THE REGIMES OF THE SOURCES OF INTERNATIONAL LAW SECTION XX  SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW 39. Sources of International Human Rights Law: How General is General International Law? 

837

Samantha Besson

40. Sources of International Human Rights Law: Human Rights Treaties  Bruno Simma

871

SECTION XXI  SOURCES OF INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL CRIMINAL LAW 41. Sources of International Humanitarian Law and International Criminal Law: Specific Features 

891

Raphaël van Steenberghe

42. Sources of International Humanitarian Law and International Criminal Law: War/Crimes and the Limits of the Doctrine of Sources Steven R. Ratner

912

xiv   contents

SECTION XXII  SOURCES OF INTERNATIONAL ENVIRONMENTAL LAW 43. Sources of International Environmental Law: Formality and Informality in the Dynamic Evolution of International Environmental Law Norms 

939

Catherine Redgwell

44. Sources of International Environmental Law: Interactional Law  Jutta Brunnée

960

SECTION XXIII  SOURCES OF INTERNATIONAL ORGANIZATIONS’ LAW 45. Sources of International Organizations’ Law: Reflections on Accountability 

987

Jan Klabbers

46. Sources of International Organizations’ Law: Why Custom and General Principles are Crucial  August Reinisch

1007

SECTION XXIV  SOURCES OF INTERNATIONAL TRADE LAW 47. Sources of International Trade Law: Mantras and Controversies at the World Trade Organization 

1027

Joost Pauwelyn

48. Sources of International Trade Law: Understanding What the Vienna Convention Says About Identifying and Using ‘Sources for Treaty Interpretation’  Donald H. Regan

1047

contents   xv

SECTION XXV  SOURCES OF INTERNATIONAL INVESTMENT LAW 49. Sources of International Investment Law: Conceptual Foundations of Unruly Practices 

1069

Jorge E. Viñuales

50. Sources of International Investment Law: Multilateralization, Arbitral Precedent, Comparativism, Soft Law  Stephan W. Schill

1095

SECTION XXVI  SOURCES OF INTERNATIONAL LAW IN DOMESTIC LAW 51. Sources of International Law in Domestic Law: Domestic Constitutional Structure and the Sources of International Law 

1119

Ingrid B. Wuerth

52. Sources of International Law in Domestic Law: Relationship between International and Municipal Law Sources 

1137

Index 

1157

Cedric Ryngaert

Table of Cases

INTERNATIONAL ADJUDICATIVE BODIES Court of Justice of the European Union (CJEU) Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms (Opinion 2/​94) [1996] ECR-​I 1769 . . . . . . . . . . . . 1020 Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Opinion 2/​13) EU:C:2014:2454 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 558, 785, 1020 Article 300(6) EC (GATS Schedules of Specific Commitments) (Opinion 1/​08) [2009] ECR I-​11129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 785 Commission v Council (European Road Transport Agreement) (Case 22/​70) [1971] ECR 263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011 Commission v Ireland, Mox Plant Case (Case C-​459/​03) [2006] ECR I-​463 . . . . . . . . 556 Competence of the Community to conclude the new Lugano Convention on jurisdiction (Opinion 1/​03) [2006] ECR I-​1145 . . . . . . . . . . . . . . . . . . . . . . . . . . 784, 1011 Cornelis Kramer and others (Joined Cases, 3, 4, and 6–​76) [1976] ECR 1279 . . . . . . . 1011 Costa (Flaminio) v ENEL (Case C-​6/​64) [1964] ECR 587 . . . . . . . . . . . . . . . . 556, 557 Defrenne v Sabena (No 2) (Case 43/​75) [1976] ECR 455 . . . . . . . . . . . . . . . . . . . 776 Elmeka (Joint Cases C-​181/​04 to 183/​04) [2006] ECR I-​8167 . . . . . . . . . . . . . . . . . 776 European Commission & the Council of the European Union v Yassin Abdullah Kadi, (Joined Cases C-​584/​10 P, C-​593/​10 P, and C-​595/​10 P) (18 July 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636, 808, 817, 1020 Federal Republic of Germany v Council of the European Union (C-​122/​95) [1998] ECR I-​973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 778 France v Commission (Case C-​327/​91) [1994] ECR I-​3641 . . . . . . . . . . . . . . . . . . 776 Haegeman v Belgium (Case 181/​73) [1974] ECR I-​449 . . . . . . . . . . . . . . . . . . . . 556 International Fruit Company NV and others/​Produktschap voor Groenten en Fruit (Joined Cases, 21 to 24-​72) [1972] ECR 1219 . . . . . . . . . . . . . . . . . . . . . . . . . 994 Internationale Handelsgesellschaft v Einfuhr-​und Vorratsstelle für Getreide und Futtermittel (Case 11/​70) [1970] ECR 1125 . . . . . . . . . . . . . . . . . . . . . . . . . . 1022 Kadi and Al Barakaat v Council (Joined Cases C-​402/​05 P and C-​415/​05 P) [2008] ECR I-​6351 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 777, 778, 1020 Kadi v Council and Commission (Case T-​315/​01) [2008] ECR-​I 6351 . . . . . . . . . . . 1020 LTU v Eurocontrol (Case 29/​76) [1976] ECR 1541 . . . . . . . . . . . . . . . . . . . . . . . 1013 Nold v Commission (Case 4/​73) [1974] ECR 491 . . . . . . . . . . . . . . . . . . . . . . . . 1022

xviii   table of cases Opinion delivered pursuant to the second subparagraph of Article 228 (1) of the EEC Treaty—​Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work (Opinion 2/​91) [1993] ECR I-​1061 . . . . . . . 1011 Opinion given pursuant to Article 228 (1) of the EEC Treaty—​‘Draft Agreement establishing a European laying-​up fund for inland waterway vessels’ (Opinion 1/​76) [1977] ECR I-​741 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011 Parliament v Council and Commission (Joined Cases C-​181 & C-​248/​9) [1993] ECR I-​3685 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 782 R (International Association of Independent Tanker Owners (Intertanko and Others) v Secretary of State for Transport (Case C-​308/​06) [2008] ECR I-​4057 . . . . . . . . . . 778 SELEX Sistemi Integrati SpA v Commission and Eurocontrol (Case C-​113/​07 P) [2009] ECR I-​2207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Stauder v Stadt Ulm (Case 29/​69) [1969] ECR 419 . . . . . . . . . . . . . . . . . . . . . .1022 Stichting ‘Goed Wonen’ (Case C-​376/​02) [2001] ECR I-​6831 . . . . . . . . . . . . . . . . . 776 Thomas Pringle v Government of Ireland and Others (Case C-​370/​12) [2013] OJ C 26/​15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 777 UK v Council (Case 68/​86) [1988] ECR 85 . . . . . . . . . . . . . . . . . . . . . . . . . . 776 Van Gend & Loos v Administratie der Belastingen (Case C-​26/​62) [1963] ECR 1 . . . . . 556 Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities (Joined Cases C-​402/​05 P and C-​415/​05) [2008] ECR I-​6354 . . . . . . . . . . . . . . . . . . . . 560, 636

Eritrea–​Ethiopia Claims Commission Prisoners of War—​Ethiopia’s Claim 4, Partial Award, Decision of 1 July 2003, (2003) 26 RIAA 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 894 Prisoners of War—​Eritrea’s Claim 17, Partial Award, Decision of 1 July 2003, (2003) 26 RIAA 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 894

European Court of Human Rights (ECtHR) Al-​Adsani v United Kingdom, Application No 35763/​97, Judgment (Grand Chamber) (21 November 2001) 34 EHRR 273 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634 Al-​Dulimi and Montana Management, Inc v Switzerland, Application No 5809/​08, Judgment (26 November 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636 Al-​Saadoon and Mufdhi v United Kingdom, Application No 61498/​08, Judgment (2 March 2010) 51 EHRR 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 860 Austria v Italy, Application No 788/​60, Commission Decision of 11 January 1961, (1961) 4 YB 116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 874 Belilos v Switzerland, Application No 10328/​83, Judgment (29 April 1988) 10 EHRR 468 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848, 850 Bosphorus Hava Yollary Turizm ve Ticaret Anonim Sirketi v Ireland, Application No 45036/​98, Judgment (30 June 2005) 42 EHRR 1 . . . . . . . . . . . . . . . . . . . . 558

table of cases   xix Demir and Baykara v Turkey, Application No 34503/​97, Judgment (Grand Chamber) (12 November 2008) 48 EHHR 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 865 Golder v United Kingdom, Application No 4451/​70, Judgment (21 February 1975) 1 EHRR 524 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 Ireland v United Kingdom, Application No 5310/​7 1, Judgment (Plenary) (18 January 1978) 2 EHRR 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 872, 874, 876 Jones and Others v United Kingdom, Application Nos 34356/​06 and 40528/​06, Judgment (14 January 2014) ECHR 2014 . . . . . . . . . . . . . . . . . . . . . . . 1145, 1147 Mamatkulov and Askarov v Turkey, Application Nos 46827/​99 and 46951/​99, Judgment (Grand Chamber) (4 February 2005) 41 EHHR 25 . . . . . . . . . . . . . 847 Nada v Switzerland, Application No 10593/​08, Judgment (12 September 2012) [2012] ECHR 1691 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636 Streletz, Kessler and Krenz v Germany, Application Nos 34044/​96, 35532/​97 and 44801/​98, Judgment (Grand Chamber) (22 March 2001) 33 EHRR 31 . . . . . . . . . .900

Extraordinary Chambers in the Courts of Cambodia (ECCC) Kaing Guek Eav, Appeal Judgment, Case File No 001/​18-​07–​2007–​ECCC/​SC (3 February 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 896

Inter-​American Court of Human Rights (IACtHR) Almonacid-​Arellano et al. v Chile (Preliminary Objections, Merits, Reparations, and Costs) IACtHR Series C No 154 (26 September 2006) . . . . . . . . . . . . . . . . . 923 Barrios Altos v Peru (Merits) IACtHR Series C No 75 (14 March 2001) . . . . . . . . . . 923 Juridical Condition and Human Rights of the Child (Advisory Opinion OC–​17/​2002) IACtHR Series A No 17 (28 August 2002) . . . . . . . . . . . . . . . . . . . . . . . . 753

International Centre for the Settlement of Investment Disputes (ICSID) Abaclat and Others v The Argentine Republic, ICSID Case No ARB/​07/​5, Decision on Jurisdiction and Admissibility (4 August 2011) . . . . . . . . . . . . 405, 406 AES Summit Generation Ltd & AES-​Tisza Erömü FT v Hungary, ICSID Case No ARB/​07/​22, Award (23 September 2010) . . . . . . . . . . . . . . . . . . . . . 557 AIG Capital Partners, Inc and CJSC Tema Real Estate Company v Republic of Kazakhstan, ICSID Case No ARB/​01/​6, Award (7 October 2003) . . . . . . . . . . . .1077 Alpha Projektholding GmbH v Ukraine, ICSID Case No ARB/​07/​16, Award (8 November 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1074

xx   table of cases Ambiente Ufficio SpA and Others v Argentine Republic, ICSID Case No ARB/​09/​9, Decision on Jurisdiction and Admissibility (8 February 2013) . . . . . . . . . . . . . . 1112 Asian Agricultural Products LTD (AAPL) v Republic of Sri Lanka, ICSID Case No ARB/​87/​3, Final Award (27 June 1990) . . . . . . . . . . . . . . . . . . 1077, 1090 Azurix Corp v Argentina, ICSID Case No ARB/​01/​12, Award (14 July 2006) . . . . . . .1082 Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC BV v Paraguay, ICSID Case No ARB/​07/​9, Further Decision on Objections to Jurisdiction (9 October 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102 CMS Gas Transmission Co. v Republic of Argentina, ICSID Case No ARB/​01/​08, Annulment Decision (25 September 2007) . . . . . . . . . . . . . . . . . . . . . . . . 1084 CMS Gas Transmission Co. v Republic of Argentina, ICSID Case No ARB/​01/​8, Award (12 May 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075, 1082 Continental Casualty Company v The Argentine Republic, ICSID Case No ARB/​03/​9, Award (5 September 2008) . . . . . . . . . . . . . . . . . . . . . . 1108 Daimler Financial Services AG v Argentine Republic, ICSID Case No ARB/​05/​1, Award (22 August 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Electrabel SA v Hungary, ICSID Case No ARB/​07/​19, Decision on Jurisdiction, Applicable Law and Liability (30 November 2012) . . . . . . . . . . . . . . . . . . . . . 557 El Paso Energy International Company v Argentine Republic, ICSID Case No ARB/​03/​15, Award (31 October 2011) . . . . . . . . . . . . . . . . . . . . . . .1087 Enron and Ponderosa Assets v Argentina, ICSID Case No ARB/​01/​3, Decision on Annulment (30 July 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1084 Enron Creditors Recovery Corporation (formerly Enron Corporation) and Ponderosa Assets, LP v Argentine Republic, ICSID Case No ARB/​01/​3, Award (22 May 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075, 1082 Fedax NV v The Republic of Venezuela, ICSID Case No ARB/​96/​3, Award (9 March 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077 Feldman (Marvin) v Mexico, ICSID Case No ARB (AF)/​99/​1 (NAFTA), Award (16 December 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081, 1083, 1085, 1087 Gold Reserve Inc v Bolivarian Republic of Venezuela, ICSID Case No ARB(AF)/​09/​1, Award (22 September 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Joseph Charles Lemire v Ukraine, ICSID Case No ARB/​06/​18, Decision on Jurisdiction and Liability (14 January 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 1107 LG&E Energy Corp, LG&E Capital Corp and LG&E International Inc v Argentine Republic, ICSID Case No ARB/​02/​1, Decision on Liability (3 October 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075, 1082, 1085, 1090 Maffezini v Kingdom of Spain, ICSID Case No ARB/​97/​7, Decision on Jurisdiction (25 January 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1085 Mobil Corporation, Venezuela Holdings, BV and Others v Bolivarian Republic of Venezuela, ICSID Case No ARB/​07/​27, Decision on Jurisdiction (10 June 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1108 Mondev Int’l Ltd v United States of America, ICSID Case No ARB (AF)/​99/​2, Award (11 October 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106, 1107 Noble Ventures, Inc v Romania, ICSID Case No ARB/​01/​11, Award (12 October 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Pac Rim Cayman LLC v Republic of El Salvador, ICSID Case No ARB/​09/​12, Decision on the Respondent’s Jurisdictional Objections (1 June 2012) . . . . . . . . . . . . . . . 1102

table of cases   xxi Perenco Ecuador Limited v Republic of Ecuador and Empresa Estatal Petróleos del Ecuador, ICSID Case No ARB/​08/​6, Decision on the Remaining Issues of Jurisdiction and on Liability (12 September 2014) . . . . . . . . . . . . . . . . . . . . .1077 Plama Consortium Limited v Republic of Bulgaria, ICSID Case No ARB/​03/​02, Award (27 August 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Quiborax SA, Non Metallic Minerals SA and Allan Fosk Kaplún v Plurinational State of Bolivia, ICSID Case No ARB/​06/​2, Award (16 September 2015) . . . . . . . . . . . 1105 Saipem SpA v People’s Republic of Bangladesh, ICSID Case No ARB/​05/​07, Decision on Jurisdiction and Provisional Measures (21 March 2007) . . . . . . . . . . . . . . 1104 SAUR International SA v Argentine Republic, ICSID Case No ARB/​04/​4, Decision on Jurisdiction and Liability (6 June 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 1088 Sempra Energy v Argentina, ICSID Case No ARB/​02/​16, Decision on Annulment (29 June 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1084 Técnicas Medioambientales Tecmed SA v Mexico, ICSID Case No ARB(AF)/​00/​2, Award (29 May 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1085, 1107 TECO Guatemala Holdings, LLC v Republic of Guatemala, ICSID Case No ARB/​10/​ 23, Award (19 December 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088 Tokios Tokelés v Ukraine, ICSID Case No ARB/​02/​18, Award (26 July 2007) . . . . . . .1075 Tokios Tokelės v Ukraine, ICSID Case No ARB/​02/​18, Decision on Jurisdiction (29 April 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102 Total SA v Argentine Republic, ICSID Case No ARB/​04/​01, Decision on Liability (27 December 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087, 1108 Tza Yap Shum v Republic of Peru, ICSID Case No ARB/​07/​6, Award (7 July 2011) . . . 1087 Waste Management, Inc v United Mexican States, ICSID Case No ARB(AF)/​00/​3 (NAFTA), Award (30 April 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1106 Wena Hotels LTD v Arab Republic of Egypt, ICSID Case No ARB/​98/​4, Annulment Proceeding (5 February 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1074

International Court of Justice (ICJ) Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403 . . . . 194, 374, 546, 547, 549, 556 Aegean Sea Continental Shelf (Greece v Turkey) (Judgment) [1978] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .431, 908, 909 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections) (Judgment) [2007] ICJ Rep 582 . . . . . . . . . . . . . . . 184 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) [2010] ICJ Rep 639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .866, 1099 Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan) (Judgment) [1972] ICJ Rep 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634, 990 Application of the Convention on Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) [1993] ICJ Rep 3 . . . . . . . . . . . . . . . . . 552

xxii   table of cases Application of the Interim Accord of 13 September 1995 (The former Yugoslav Republic of Macedonia v Greece) (Judgment) [2011] ICJ Rep 644 . . . . . . . . . . . . . . . . . . 873 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Application instituting proceedings), 12 August 2008 [2008] ICJ General List No 140 . . . . . . . . . . . . . 879 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Provisional Measures) [2008] ICJ Rep 353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 879 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634, 852 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) [2002] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . 764, 1127, 1145, 1151 Asylum Case (Columbia v Peru) (Judgment) [1950] ICJ Rep 266 . . . . . . . . . . . . . . 894 Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Judgment) [1970] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226, 852, 854, 867 Case Concerning Right of Passage over Indian Territory (Portugal v India) (Preliminary Objections) [1957] ICJ Rep 125 . . . . . . . . . . . . . . . . . . . . . . . . 457 Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v Iran) (Judgment) [1980] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Judgment) [2015] ICJ Rep 665 . . . . . . . . . . . . . . . . 972 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151 . . . . . . . . . . . . . . . . . . . . . . . . 194, 1011 Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141 Continental Shelf (Libyan Arab Jamahirya v Malta) (Judgment) [1985] ICJ Rep 13 . . . . . 184, 715 Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192, 274, 853, 971, 972 Delimitation of the Marine Boundary in the Gulf of Maine Area (Canada v United States of America) (Judgment) [1984] ICJ Rep 246 . . . . . . . . . . . . . . . . . . . . . 185 Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment) [2009] ICJ Rep 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . 408, 409 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47 . . . . . . . . . . . . . . . . . . . 234, 1011 Elettronica Sicula SpA (ELSI) (United States v Italy) (Judgment) [1989] ICJ Rep 15 . . . . . 1099 Fisheries Case (United Kingdom v Norway) (Judgment) [1951] ICJ Rep 116 . . . . . .297, 864 Frontier Dispute (Burkina Faso v Mali) (Judgment) [1984] ICJ Rep 554 . . . . . . . . . . 197 Gabčíkovo-​Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7 . . . . . . . . . . . . . . . . . . . . . . . . . 646, 952, 954, 957, 971, 972, 975, 980 International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128 . . . 1141 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73 . . . . . . . . . . . . . 839, 989, 993, 997, 1018, 1019

table of cases   xxiii Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) [2012] ICJ Rep 99 . . . . . . . . . . . . . 184, 185, 578, 619, 634, 898, 1127, 1145 Kasikili/​Sedudu Island (Botswana v Namibia) (Judgment) [1999] ICJ Rep 1045 . . . . . . 375 LaGrand (Germany v United States of America) (Provisional Measures) Orders of 3 March 1999 [1999] ICJ Rep 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375, 877 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303 . . . . . . . . 555 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16 . . . . . . . . . . . . . . . . . . . . 194, 195, 637, 1019 Legal Consequence of the Construction of Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 . . . . . . . . . . . . . . . 185, 375, 802, 853, 1089 Legality of the Threat of the Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 . . . . . . . . . . . . . . . . . . . . . . . 185, 427, 757, 795, 897, 920, 954, 971 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) [1994] ICJ Rep 112 . . . . . 431, 908 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Jurisdiction and Admissibility) [1984] ICJ Rep 392 . . . . . . . . . 553 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 . . . . . 184–​6, 226, 239, 351, 380, 627, 644, 648, 716, 802, 821, 853, 859, 866, 924, 1088 Minquiers and Ecrehos Case (France v UK) (Judgment) [1953] ICJ Rep 47 . . . . . . . . 296 North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (Judgment) [1969] ICJ Rep 3 . . . . . 177, 178, 184, 185, 199, 226, 291, 292, 330, 376, 647, 653, 821, 867, 945, 991, 1152 Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253 . . . . . 195, 381, 427, 548, 817 Nuclear Tests (Australia v New Zealand) (Judgment) [1974] ICJ Rep 457 . . . . . . . . 195, 817 Oil Platforms (Islamic Republic of Iran v United States) (Judgment) [2003] ICJ Rep 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051, 1062 Passage Through the Great Belt (Denmark v Finland), Application Instituting Proceedings Filed in the Registry of the Court (17 May 1991) (1992) 31 ILM 1 . . . . . 817 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 845, 954, 971, 972, 974, 976, 1077 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America) (Request for the indication of Provisional Measures) [1992] ICJ Rep 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 635 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422 . . . . . . . . . . . . . . . . . . . . . . 545, 553, 880, 881 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174 . . . . . . . . . . . . . . . . . . . 434, 752, 757, 995, 1010, 1021 Reservations to the Convention on the Prevention and Punishment of Genocide (Advisory Opinion) [1951] ICJ Rep 15 . . . . . . . . . . . . . . . . . . . . . . 192, 848, 872 South-​West Africa Cases (Ethiopia v Liberia; Liberia v South Africa) (Judgment) [1962] ICJ Rep 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575

xxiv   table of cases South-​West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Judgment, Second Phase) [1966] ICJ Rep 6 . . . . . . . . . . . . . . . . . . . . . 567, 575, 632, 853, 873 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malesia) (Judgment) [2002] ICJ Rep 625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Territorial Dispute (Libyan Arab Jamahiriya v Chad) (Judgment) [1994] ICJ Rep 6 . . . .375, 547 Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942, 954

International Criminal Court (ICC) Prosecutor v Lubanga Dyilo (Decision on the Confirmation of the Charges) ICC–​01/​04–​01/​06 (29 January 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905

International Criminal Tribunal for Rwanda (ICTR) Prosecutor v Akayesu (Judgment) ICTR–​96–​4–​T (2 September 1998) . . . . . . . . . . . 189 Prosecutor v Kanyabashi (Appeals Judgment) ICTR–​96–​15–​A (3 June 1999) . . . . . . . 901

International Criminal Tribunal for the Former Yugoslavia (ICTY) Prosecutor v Blaškić (Trial Chamber Judgment) ICTY–​95–​14–​T (3 March 2000) . . . . 909 Prosecutor v Delalič et al. (Appeals Judgment) ICTY–​96–​21–​A (26 February 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902, 903 Prosecutor v Dragoljub Kunarac et al. (Appeals Judgment) ICTY–​96–​23 & IT–​96–​23/​ 1–​A (12 June 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Prosecutor v Dragoljub Kunarac et al. (Judgment) ICTY–​IT–​96–​23–​T & IT–​96–​23/​ 1-​T (22 February 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Prosecutor v Drazen Erdemovic (Sentencing Judgment) ICTY–​IT–​96–​22–​T (29 November 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922 Prosecutor v Furundžija (Trial Chamber Judgment) ICTY–​95–​17/​1–​T (10 December 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 894, 895, 906 Prosecutor v Galić (Appeals Chamber Judgment) ICTY–​98–​29–​A (30 November 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909 Prosecutor v Jelisić (Judgment) ICTY‒95‒10‒T (14 December 1999) . . . . . . . . . . . . . 823 Prosecutor v Kupreskić et al. (Judgment) ICTY–​IT–​95–​16–​T (14 January 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 190, 892, 894, 895, 903, 921 Prosecutor v Šainović et al. (Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction) (Appeals Chamber) IT–​99–​37–​AR72 (21 May 2003) . . . . . . . . 900, 906 Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber) IT–​94–​1–​AR72 (2 October 1995) . . . 326, 457, 896, 898, 899, 906, 921, 923, 925

table of cases   xxv Prosecutor v Tadić (Trial Chamber Opinion and Judgment) Case No IT–​94–​1–​T (7 May 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Prosecutor v Vasiljević (Judgment) IT–​98–​32–​T (29 November 2002) . . . . . . . . . . . 923

International Military Tribunal at Nuremberg United States v Altstoetter et al., Law No 10. 1946–​1949, Vol III (International Military Tribunal at Nuremberg 1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924, 925 United States v Goering, 6 FRD 69 (International Military Tribunal at Nuremberg 1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .311

International Tribunal for the Law of the Sea (ITLOS) M/​V Saiga (No 2) (Saint Vincent and the Grenadines v Guinea) (Admissibility and Merits) [1999] ITLOS Rep 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) [2011] ITLOS Rep 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .189, 950, 957, 973, 976 Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Order of 27 August 1999) [1999] ITLOS Rep 262 . . . . . . . . . . . . . . . . . . . . . . . . . . . 972

Permanent Court of International Justice (PCIJ) Case of the S.S. “Wimbledon’’ (United Kingdom and others v Germany) (Judgment) PCIJ Rep Series A No 1 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545, 820 Certain German Interests in Polish Upper Silesia (Germany v Poland) (Merits) 1926 PCIJ Rep Series A No 7 (1926) . . . . . . . . . . . . . . . . . . . . . . . 555, 821, 1074, 1140 Free Zones of Upper Savoy and the District of Gex (France v Switzerland) PCIJ Rep Series A/​B No 46 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 578 Jurisdiction of the Courts of Danzig (Advisory Opinion) PCIJ Rep Series B No 15 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877 The Case of the S.S. “Lotus” (France v Turkey) (Merits) PCIJ Rep Series A No 10 (1927) . . . . . . . . . . . . . . . . . . . . . . 176, 178, 184, 379, 380, 457, 545, 820, 1127

Special Court for Sierra Leone (SCSL) Prosecutor v Morris Kallon and Brima Bazzy Kamara, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, SCSL–​2004–​15–​PT and SCSL–​2004–​16–​PT (Appeals Chamber) (13 March 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909 Prosecutor v Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), SCSL–​04–​14–​AR72(E) (Appeals Chamber) (31 May 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906, 922

xxvi   table of cases

United Nations Commission on International Trade Law (UNCITRAL) AWG Group Ltd v Argentine Republic, UNCITRAL, Decision on Liability (30 July 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087 BG Group Plc v Republic of Argentina, UNCITRAL, Award (24 December 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077, 1087, 1090 Chemtura Corporation (formerly Crompton Corporation) v Government of Canada, UNCITRAL, Award (2 August 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . .1087 CME Czech Republic B.V. v Czech Republic, UNCITRAL, Partial Award (13 September 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087 Eli Lilly and Company v The Government of Canada, UNCITRAL, ICSID Case No UNCT/​14/​2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1078 EnCana Corporation v Republic of Ecuador, LCIA Case No UN 3481, Award (3 February 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075, 1077 Hesham T M Al Warraq v Republic of Indonesia, UNCITRAL, Final Award (15 December 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 International Thunderbird Gaming Corp v United Mexican States, UNCITRAL (NAFTA), Arbitral Award (26 January 2006) . . . . . . . . . . . . . . . . . . . .1105, 1109 Invesmart, BV v Czech Republic, UNCITRAL, Award (26 June 2009) . . . . . . . 1075, 1077 Les Laboratoires Servier, SAS, Biofarma, SAS, Arts et Techniques du Progrès SAS v Republic of Poland, UNCITRAL, Award (Redacted) (14 February 2012) . . . . . . . 1088 Methanex Corporation v United States of America, UNCITRAL, (NAFTA) Award (3 August 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087 Saar Papier v Poland, UNCITRAL, Final Award (16 October 1995) . . . . . . . . . . . .1107 Saluka Investments BV v The Czech Republic, UNCITRAL, Partial Award (17 March 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087–​89

United Nations Committee against Torture Sadiq Shek Elmi v Australia, CAT/​C/​22/​D/​120/​1998 (25 May 1999) . . . . . . . . . . . . 764

United Nations Human Rights Committee Kennedy v Trinidad and Tobago, Comm. No 845/​1999, CCPR/​C/​74/​D/​845/​1998 (2 November 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 850

WTO and GATT Disputes Brazil—​Measures Affecting Imports of Retreaded Tyres, Arbitration under Article 21.3(c) of the DSU, Award of the Arbitrator Yasuhei Taniguchi (29 August 2008) WT/​DS332/​16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800 Brazil—​Retreaded Tyres, Appellate Body Report (3 December 2007) WT/​DS332/​AB/​R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408

table of cases   xxvii China—​Countervailing and Anti-​Dumping Duties on Grain Oriented Flat-​Rolled Electrical Steel from the United States, Arbitration under Article 21.3(c) of the DSU, Award of the Arbitrator Claus-​Dieter Ehlermann (19 April 2013) WT/​DS414/​12 . . . . . 800 EC—​Asbestos, Appellate Body Report (5 April 2001) WT/​DS135/​AB/​R . . . . . . . . . 1050 EC—​Bed Linen, Article 21.5 Appellate Body Report (8 April 2003) WT/​DS141/​AB/​RW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800 EC—​Hormones, Appellate Body Report (16 January 1998) WT/​DS26/​AB/​R . . . . . . . 954 EC—​Large Civil Aircraft, Appellate Body Report (18 May 2011) WT/​DS316/​AB/​R  . . . . 1037 EC—​Measures Affecting the Approval and Marketing of Biotech Products—​Panel Report (29 September 2006) WT/​DS291/​R . . . . . . . . . . . . . . . . . . . . . . . . . 972 EC—​Measures Concerning Meat and Meat Products (Hormones), Appellate Body Report (16 January 1998) WT/​DS48/​AB/​R . . . . . . . . . . . . . . . . . . . . . . . . . 972 India—​Patents (US), Appellate Body Report (19 December 1997) WT/​DS50/​AB/​R . . . 821, 1029 Japan—​Alcoholic Beverages II, Appellate Body Report (4 October 1996) WT/​DS8 10-​11/​AB/​R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 Mexico—​Tax Measures on Soft Drinks and Other Beverages, Panel Report (7 October 2005) WT/​DS308/​R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 814 Mexico—​Tax Measures on Soft Drinks and Other Beverages, Appellate Body Report (24 March 2006) WT/​DS308/​AB/​R . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036 Peru—​Agricultural Products, Appellate Body Report (31 July 2015)  WT/​DS457/​AB/​R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035, 1036, 1059 US—​Clove Cigarettes, Appellate Body Report (24 April 2012) WT/​DS406/​AB/​R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050, 1052 US–​Continued Suspension, Appellate Body Report (16 October 2008) WT/​DS320/​AB/​R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1037 US—​Continued Zeroing, Appellate Body Report (4 February 2005) WT/​DS350/​AB/​R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409 US—​COOL, Article 21.5 Panel Report (20 October 2014) WT/​DS384/​RW . . . . . . . 800 US—​Countervailing Measures (China), US Opening Statement, Second Substantive Meeting, October 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1032 US—​Gambling, Panel Report (10 November 2004) WT/​DS285/​R . . . . . . . . . . . . 1035 US—​Import Prohibition of Certain Shrimp, Appellate Body Report (12 October 1998) WT/​DS58/​AB/​R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954, 980 US—​Sections 301–​310 of the Trade Act of 1974, Panel Report (22 December 1999) WT/​DS152/​R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 US—​Shirts and Blouses, Appellate Body Report (23 May 1997) WT/​DS33/​AB/​R . . . . 1048 US—​Shrimp/​Sawblades, Panel Report (8 June 2012) WT/​DS422/​R . . . . . . . . . . . . 1032 US—​Stainless Steel (Mexico), Appellate Body Report (30 April 2008) WT/​DS344/​AB/​R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031 US—​Standards for Reformulated and Conventional Gasoline, Appellate Body Report and Panel Report—​Action by the Dispute Settlement Body (20 May 1996) WT/​DS2/​AB/​R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189, 375 US—​Tuna II (Mexico), Article 21.5 Panel Report (14 April 2015) WT/​DS381/​RW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800, 1040 US—​Upland Cotton, Arbitration under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, Decision by the Arbitrator (31 August 2009) WT/​DS267/​ARB/​1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800 US—​Zeroing (Korea), Panel Report (18 January 2011) WT/​DS402/​R . . . . . . . . . . . 1032

xxviii   table of cases

Other International Arbitral Awards Abyei Arbitration (The Government of Sudan v Sudan Peoples’ Liberation Movement/​ Army), Final Award (22 July 2009) (2009) 48 ILM 1258 . . . . . . . . . . . . . . 764, 817 Alabama Claims (United States of America v Great Britain), Award (14 September 1872), (1872) 29 RIAA 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Amoco International Finance Corporation v Islamic Republic of Iran, Partial Award (14 July 1987) (1988) 27 ILM 1314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648 Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway (Belgium v Netherlands), Award (24 May 2005) (2005) 27 RIAA 35 . . . . . . . . . . . . . . . . . . . . 375, 557, 954 Argentine–Chile Frontier case (Argentina v Chile), Award (9 December 1966) (1966) 16 RIAA 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Bering Fur Seals Arbitration (United States v United Kingdom), Award (15 August 1893) (1898) 1 Moore International Arbitrations 755 . . . . . . . . . . . . . . . . . . . . 953 Channel Tunnel Group Limited and France-​Manche SA v United Kingdom and France, Partial Award (30 January 2007) (2007) 132 ILR 1 . . . . . . . . . . . . . . . . . . . . . 557 European American Investment Bank AG (Austria) v Slovak Republic, PCA Case No 2010–​17, Award on Jurisdiction (22 October 2012) . . . . . . . . . . . . . . . . . . . . . 557 Forests of Central Rhodope (Merits) (Greece v Bulgaria), Award (19 March 1933) (1933) 3 RIAA 1405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801 Island of Palmas Case (Netherlands v United States), Award (4 April 1928) (1928) 2 RIAA 842 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295, 970 Indus Waters Kishenganga Arbitration (Pakistan v India), Partial Award (18 February 2013) (2013) 154 ILR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954 Lac Lanoux Arbitration (France v Spain), Award (16 November 1957) (1957) 24 ILR 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .953, 972 North American Dredging Company of Texas (USA) v United Mexican States (1926) 4 RIAA 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274 Russian Indemnity Case (Russia v Turkey), Award (11 November 1912) (1912) 11 RIAA 421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058 Texaco Overseas Petroleum Company and California Asiatic Oil Company v Libya, Arbitral Award (19 January 1977) (1977) 53 ILR 389 . . . . . . . . . . . . . . . . . . . . 927 Trail Smelter Case (United States v Canada) (1941) 3 RIAA 1905 . . . . . . . . . . . . 953, 971

National Courts Canada Abdelrazik v Canada (Minister of Foreign Affairs) [2010] 1 FCR 267, 2009 FC 580 . . . . 829 Apotex Inc v Astrazeneca Canada Inc 2012 FC 559 . . . . . . . . . . . . . . . . . . . . 829 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town) [2001] 2 SCR 241, 2001 SCC 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146

table of cases   xxix Crown Forest Industries Ltd v Canada [1995] 2 SCR 802 . . . . . . . . . . . . . . . . . . . 829 Bouzari v Islamic Republic of Iran (2004) 71 OR (3d) 675 . . . . . . . . . . . . . . . . . 1147 National Corn Growers v Canadian Import Tribunal [1990] 2 SCS 1324 . . . . . . . . . . . 829 Nemeth v Canada (Justice) 2010 SCC 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . 829 R v Hape 2007 SCC 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 829

India Vellore Citizens Welfare Forum Case (Vellore Citizens Welfare Forum v Union of India and others), Supreme Court of India, Judgment of 28 August 1996, AIR 1996 SC 2715 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 822

Israel Public Committee against Torture v State of Israel, HCJ 769/​02 (11 December 2005) . . . . 923

Italy De Guglielmi and De Guglielmi v Germany (19 May 2010) ILDC 1784 (IT 2010), (Court of First Instance) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1150 Federal Republic of Germany v Ferrini (21 January 2014) ILDC 2724 (IT 2014) (Supreme Court of Cassation) . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Ferrini v Germany (11 March 2004) ILDC 19 (IT 2004) (Supreme Court of Cassation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634 Germany v Mantelli and Others (29 May 2008) ILDC 1037 (IT 2008) (Supreme Court of Cassation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153 Germany v Milde (Max Josef) (13 January 2009) ILDC 1224 (IT 2009) (Supreme Court of Cassation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Simoncioni v Germany, Judgment No 238/​2014, Gazetta Ufficiale (spec. ser.), No 45, 29 October 2014, ILDC 2237 (IT 2014) (Supreme Court of Cassation) . . . . . 796, 1148

Netherlands Mothers of Srebrenica v Netherlands and United Nations, Final appeal judgment, 12 April 2012, LJN: BW1999, ILDC 1760 (NL 2012) . . . . . . . . . . . . . . . . . . 1013

Philippines Minors Oposa v Secretary of the Department of Environmental and Natural Resources, Supreme Court of Philippines, Judgment of 30 July 1993, (1994) 33 ILM 173 . . . . . . . 822

xxx   table of cases

Poland Natoniewski v Germany, Cassation complaint, Case No IV CSK 465/​09, Polish Yearbook of International Law 30 (2010): 299, ILDC 1996 (PL 2010) (Supreme Court) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153

Switzerland Adamov (Evgeny) v Federal Office of Justice, Appeal Judgment, Case No 1A 288/​2005, (22 December 2005) ILDC 339 (CH 2005) (Federal Supreme Court) . . . . . . . . . . 1153

United Kingdom A and others v Secretary of State for the Home Department [2004] UKHL 56 . . . . . . . 796 Jones v Ministry of the Interior Al-​Mamlaka Al-​Arabiya as Saudiya (The Kingdom of Saudi Arabia) [2006] UKHL 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Maclaine Watson & Co. Ltd v International Tin Council [1988] 1 Ch 1; [1988] 3 WLR 1169; [1990] 2 AC 418; [1990] 3 WLR 96 . . . . . . . . . . . . . . . . . . . . . . . . . 1014 Maclaine Watson & Co. Ltd v International Tin Council (No 2) [1987] 1 WLR 1711; [1988] 3 WLR 1190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014 R (on the application of Al-​Jedda) (FC) (Appellant) v Secretary of State for Defence [2007] UKHL 58; [2008] 1 AC 332 . . . . . . . . . . . . . . . . . . . . . . . . . . . 636, 804 R v Bartle and Commissioner of Police for the Metropolis and others, ex parte Pinochet [1999] UKHL 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 796 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte [1999] 2 WLR 827 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153 R v Jones (Margaret) [2006] UKHL 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824 Rylands v Fletcher [1868] UKHL 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517 Salomon v Commissioners of Customs and Excise [1967] 2 QB 116 (CA) . . . . . . . . . . . 829

United States Committee of United States Citizens Living in Nicaragua v Reagan, 859 F.2d 929 (D.C. Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824 Filartiga v Peña-​Irala, 630 F.2d 876 (2d Cir. 1980) . . . . . . . . . . . . . . . . . . . . 310, 315 Flomo and 22 additional child plaintiffs v Firestone Natural Rubber Company, LLC, 643 F.3d 1013 (7th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 796, 1153 Freedom Watch, Inc v Org of the Petroleum Exporting Countries (OPEC), 766 F.3d 74 (D.C. Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Hamdan v Rumsfeld, 548 US 557 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923 IIT v Vencap, 519 F.2d 1001 (2d Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 Int’l Ass’n of Machinists & Aerospace Workers (IAM) v Org of Petroleum Exporting Countries (OPEC), 477 F.Supp. 553 (C.D. Cal. 1979) . . . . . . . . . . . . . . . . . . . . 1013

table of cases   xxxi Kiobel and Others (on behalf of Kiobel and Tusima) v Royal Dutch Petroleum Co and Others, 623 F.3d 111 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . 309–​11, 316–​18, 1153 Medellin v Texas, 552 US 491 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802 Murray v The Schooner Charming Betsy, 2 Cranch 64, 118 (1804) . . . . . . . . . . . . . . 828 Prewitt Enterprises, Inc v Org of Petroleum Exporting Countries (OPEC), 353 F.3d 916 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Roper v Simmons, 543 US 551 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Samantar v Yousuf, 560 US 305 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147

Table of International Instruments

Additional Protocol to the Treaty of Asunción on the Institutional Structure of MERCOSUR (17 December 1994) 2145 UNTS 298 . . . . . . . . . . . . . . . . . . . . . 793 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793 Agreement between the Government of the Republic of Sudan and the Sudan People’s Liberation Movement to Protect Non-​Combatant Civilians and Facilities from Military Attack (10 March 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764 Agreement between the United Nations and the Government of Haiti concerning the Status of the United Nations Operation in Haiti, Port-​au-​Prince (9 July 2004) 2271 UNTS 235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 996 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 996 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2000) 2167 UNTS 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952 Agreement on a Unified Patent Court (signed 19 February 2013) [2013] OJ C 175/​1 . . . . 783 Agreement on the Transfer and Mutualisation of Contributions to the Single Resolution Fund (entered into force 1 January 2016) [2014] Council Doc. 8457/​14 . . . . . . . . . . . 783 Agreement Relating to the Implementation of Part XI of the UN Convention on the Law of the Sea (adopted 10 December 1982, entered into force 28 July 1996) (1994) 33 ILM 1309 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946 American Convention on Human Rights (Pact of San José) (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 . . . . . . . . . . . . . . . . . . 878 Arms Trade Treaty (adopted 3 June 2013, entered into force 24 December 2014) UNODA No 13-​27217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Articles on the Responsibility of International Organizations (ARIO) (2011) (ILC, adopted at the sixty-​third session) UN Doc. A/​RES/​66/​100 . . . . . 999, 1004, 1008, 1014, 1015, 1021 Art 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 999 Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) (2001) (ILC, adopted at the fifty-​third session) UN Doc. A/​RES/​56/​83 . . . . 226, 426, 533, 795, 815, 852, 862, 874, 880, 886, 903, 999, 1008, 1014, 1015, 1035, 1053 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035

xxxiv   table of international instruments Art 25 (1) (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862 Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862 Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795, 815, 881 Art 42 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 852 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795, 815, 874, 881, 886 Art 48 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 852 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 815 Art 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 815 Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 999 Art 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 999 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (adopted 22 March 1989, entered into force 5 May 1992) 1673 UNTS 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947, 956 Charter of Fundamental Rights of the European Union [2012] OJ C 326/​02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771, 776, 780, 1022 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16 . . . . . . . . 22, 194, 195, 198, 235, 236, 351, 411, 412, 428, 547, 548, 554, 556, 625, 627, 635–​38, 670, 750, 777, 793, 801, 815, 837, 906, 917, 991, 996 Recital 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .560 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547, 560, 750, 901, 996 Art 2 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428, 547, 627, 815, 826 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194, 793 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194, 195, 793, 917 Art 27 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 637 Chap VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793, 802 Art 36 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802 Chap VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . 635, 793, 802, 901, 906, 917, 928 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 815 Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793 Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793, 815 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 815 Art 53 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 637 Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 837, 862 Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 837, 862 Art 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 549, 801, 802 Art 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 559 Art 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554, 625, 630, 635–​37 Art 108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636, 637 Art 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636 Constitution of the World Health Organization (adopted 22 July 1946, entered into force 7 April 1948) 14 UNTS 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432

table of international instruments    xxxv Constitutive Act of the African Union (adopted 11 July 2000, entered into force 26 May 2001) 2158 UNTS 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 637 Art 4 (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 637 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877, 880, 881, 901, 931, 1125, 1126 Convention concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942 Convention for the Protection of the Marine Environment of the North-​East Atlantic (OSPAR Convention) (adopted 22 September 1992, entered into force 25 March 1998) 2354 UNTS 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941, 945 Convention for the Protection of the Ozone Layer (adopted 22 March 1985, entered into force 22 September 1988) 1513 UNTS 323 . . . . . . . . . . . . . . . . . . . . 967, 971 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 . . . . . . . . . . . . . . . . . . . . . . . . 941, 945, 947 Convention on International Civil Aviation (Chicago Convention) (adopted 7 December 1944, entered into force 4 April 1947) 15 UNTS 295 . . . . . . . . . . . . . . 432 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432 Art 54(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432 Art 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (adopted 3 March 1973, entered into force 7 January 1975) 993 UNTS 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 804 Convention on Long-​Range Transboundary Air Pollution (LRTAP Convention) (adopted 13 November 1979, entered into force 16 March 1983) 1302 UNTS 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941, 945, 971 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971 Convention on Persistent Organic Pollutants (POPs Convention) (adopted 22 May 2001, entered into force 17 May 2004) 2256 UNTS 119 . . . . . . . . . . . . . . . . . 804 Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June 1979, entered into force 1 November 1983) 1651 UNTS 333 . . . . . . . . . . . 946 Convention on the Establishment of a European Police Office [1995] OJ C 316/​1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .782 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (adopted 14 December 1973, entered into force 20 February 1977) 1035 UNTS 167 . . . . . . . . . . . . . . . . . . . 1125 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Convention on the Prevention and Punishment of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 . . . . . . . 877, 901, 991, 1125, 1126 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (adopted 13 November 1972, entered into force 30 August 1975) 1046 UNTS 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .945

xxxvi   table of international instruments Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (adopted 10 September 1998, entered into force 24 February 2004) 2244 UNTS 337 . . . . . . . . . . . . .947, 956, 980 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (adopted 13 January 1993, entered into force 29 April 1997) 1974 UNTS 45 . . . . . . . . . . . . . . . . . . . . . . . . . . 990 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (adopted 10 June 1958, entered into force 7 June 1959) 330 UNTS 38 . . . . .801, 1088, 1098 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801, 1088 Convention on the Rights and Duties of States (Montevideo Convention) (adopted 26 December 1933, entered into force 26 December 1934) 165 LNTS 19 . . . . . . . . . 755 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 755 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) (adopted 18 March 1965, entered into force 14 October 1966) 575 UNTS 159 . . . . . . . . . . . . . .649, 801, 827, 830, 1029, 1074, 1075, 1077, 1097, 1098, 1105, 1108 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 830 Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Art 42 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029, 1074, 1075, 1097 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Arts 53–​55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 830 Art 54 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801 Covenant of the League of Nations (signed 28 June 1919, entered into force 10 January 1920) 225 CTS 195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168, 547 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547 Art 13 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168, 169, 172 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) (16 June 1972) (1972) 11 ILM 1416 . . . . . . . . . . . 951, 952, 979 Principle 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 980 Declaration on Principles of International Law Concerning Friendly Relations and Co-​operation Among States in accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV) (24 October 1970) . . . . . . . . . . . . . . . . . . . . . . . . . 458 Definitive Treaty of Peace between France, Great Britain and Spain (Peace Treaty of Paris) (signed 10 February 1763) 42 CTS 279 . . . . . . . . . . . . . . . . . . . . . . . . 115 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Energy Charter Treaty and its Protocol on Energy Efficiency and Related Environmental Aspects (ECT) (signed 17 December 1994, entered into force 16 April 1998) 2080 UNTS 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1072 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (adopted 4 November 1950, entered into force 3 September 1953) ETS 5 . . . . . . . . . . . . . . . . 793, 795, 798, 801, 818, 830, 848, 850, 862, 872, 887 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 818 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 818

table of international instruments    xxxvii Art 5 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art 46 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art 46 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protocol 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protocol 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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. . . . . 821 . . . 795, 851 . . . . . . 795 . . . 793, 798 . . . . . . 801 . . . . . . 795 . 848–​50, 887 . . . . . . 818 . . . . . 818 . . . . . . 795

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 . . . . . . . . . .759, 762, 903, 931, 995, 1019, 1125 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764, 765, 909, 925, 931 Art 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 . . . . . . . . . . . . . . . 759, 762, 903, 931, 995, 1019, 1125 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764, 765, 909, 925, 931 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Art 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 . . . . . . . . . . . . . . . . . . . . . . . . . 759, 762, 903, 931, 995, 1019, 1125 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764, 765, 909, 925, 931 Art 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762 Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 . . . . . . . 759, 762, 903, 931, 995, 1019, 1125 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764, 765, 909, 925, 931 Art 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762 Hague Convention (I) for the Pacific Settlement of International Disputes (adopted 29 July 1899, entered into force 4 September 1900) 1 Bevans 230 . . . . . . . . . . 181, 807 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807 Art 137 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Hague Convention (I) for the Pacific Settlement of International Disputes (adopted 18 October 1907, entered into force 26 January 1910) 1 Bevans 577 . . . . . . . . . . . . 181 Art 137 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Hague Convention (II) With Respect to the Laws and Customs of War on Land (adopted 29 July 1899, entered into force 4 September 1900) 187 CTS 429 . . . . . . . . . . . 156, 430, 576

xxxviii   table of international instruments Hague Convention (XII) Relative to the Creation of an International Prize Court (signed 18 October 1907) 205 CTS 381 . . . . . . . . . . . . . . . . . . . . . 181, 549, 647 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181, 546, 549, 647 International Convention for the Prevention of Pollution from Ships (MARPOL) (adopted 17 February 1973, entered into force 2 October 1983) 1340 UNTS 62 . . . . 941, 945 International Convention for the Regulation of Whaling (Whaling Convention) (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 361 . . . . 942 International Convention for the Suppression of the Financing of Terrorism (adopted 9 December 1999, entered into force 10 April 2002) 2178 UNTS 197 . . . . . 1125 Arts 4–​8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1125 International Convention for the Suppression of Terrorist Bombings (adopted 15 December 1997, entered into force 23 May 2001) 2149 UNTS 284 . . . . . . . . . . 1125 Arts 3–​6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1125 International Convention on the Elimination of all Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 . . . . 879, 881 International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entered into force 18 July 1976), 1015 UNTS 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120 International Covenant on Civil and Political Rights (ICCPR) (adopted 19 December 1966, entered into force 23 March 1976) 999 UNTS 171 . . . . . . . .439, 851, 862, 867, 875, 880, 881, 995, 1120 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120 Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 851 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .995 International Covenant on Economic, Social and Cultural Rights (ICESCR) (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 . . . . . . . . .867, 995 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 995 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946, 957, 979 London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Charter of the International Military Tribunal (8 August 1945) 82 UNTS 280 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .311, 313, 572 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572 Marrakesh Agreement Establishing the World Trade Organization (WTO Charter) (adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS 154 1 . . . . 37, 598, 599, 785, 800, 801, 980, 1010, 1029, 1034–​45, 1047, 1048, 1050, 1052, 1064 Art III.2  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1010 Art IX.2  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040 Art X.9  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043 Art XII.1  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1029

table of international instruments    xxxix Annex 1A—​Multilateral Agreements on Trade in Goods General Agreement on Tariffs and Trade (GATT) (adopted 30 October 1947, entered into force 1 January 1948) 55 UNTS 194 . . . . . . . .408, 1030, 1035, 1036, 1043, 1044, 1050 Art III:1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050 Art III:4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050–​52 Art XX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408, 409, 1035, 1051 Art XX (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035 Art XX (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035 Art XXIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035, 1036 Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) 1867 UNTS 493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487, 1038 Art 3.1  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038 Agreement on Technical Barriers to Trade (TBT) 1868 UNTS 120 . 1030, 1038, 1050, 1052 Art 2.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050–​2 Art 2.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038 Annex 1C—​Agreement on Trade-​Related Intellectual Property Rights (TRIPS) 1869 UNTS 299 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .759, 1030, 1043 Annex 2—​Dispute Settlement Understanding (DSU) 1869 UNTS 401 . . . . . . . 799, 800, 817, 1028, 1031, 1032, 1035, 1037, 1044, 1048 Art 2.1  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799 Art 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800, 1028, 1031, 1035, 1048 Art 3.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1032 Art 17.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1032 Art 21.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799, 800 Art 21.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799, 800 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 817 Art 22.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799, 800 Annex 4 Plurilateral Trade Agreements (PTA) . . . . . . . . . . . . . . . . . . . . . . . .1043 Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) (adopted 16 September 1987, entered into force 1 January 1989) 1522 UNTS 3 . . . . . 967 North American Free Trade Agreement (NAFTA) (entered into force 1 January 1994) (1993) 32 ILM 289 and 605 . . . . . . 1034, 1036, 1078, 1081, 1082, 1099, 1105, 1106 Art 1110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1081 Art 1110 (2), (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1081 Art 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036 Paris Agreement on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) UN Doc. FCCC/​CP/​2015/​L.9 . . . . . . . . . . . . . . . . . . . . . 968 Art 2.1 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 968, 982 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) (Additional Protocol I) 1125 UNTS 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759, 762, 931, 995, 1019 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765 Art 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762

xl   table of international instruments Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-​International Armed Conflicts (adopted 8 June 1977, entered into force 21 September 1970) (Additional Protocol II) 1125 UNTS 609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762, 925, 927, 995, 1019 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762 Protocol of Cartagena de Indias (adopted 5 December 1985, entered into force 16 November 1988) OASTS No 66, 119 UNTS 3 . . . . . . . . . . . . . . . . . . . . . . 947 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (adopted 7 November 1996, entered into force 24 March 2006) 1046 UNTS 120  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945 Rio Declaration on Environment and Development (14 June 1992) (1992) 31 ILM 874 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458, 951, 952, 956, 957, 979 Principle 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 980 Principle 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 980 Principle 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 980 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 . . . . . . . . . . . . . . . . 35 190, 311, 830, 892–​4, 901, 904–​7, 910, 917, 925, 1125, 1126 Art 9  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 830, 1125 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 892, 905, 906 Art 21 (b), (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130 Art 21 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 Statute of the International Criminal Tribunal for Rwanda UNSC Res 955 (8 November 1994) UN Doc. S/​RES/​955 . . . . . . . . . . . . . . . . . . . . . . 901, 916, 917 Statute of the Council of Europe (adopted 5 May 1949, entered into force 3 August 1949) ETS 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799 Statute of the International Atomic Energy Agency (adopted 26 October 1956, entered into force 29 July 1957) 276 UNTS 3 . . . . . . . . . . . . . . . . . . . . . . . . 803 Art XII(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 33 UNTS 993 . . . . . . . . . . 5, 23, 122, 165, 178, 179, 265, 270, 279, 301, 339, 355, 394, 422, 429, 438, 458, 542, 548, 578, 614, 626, 728, 760, 791, 813, 892, 914, 940, 960, 1022, 1072, 1120, 1138 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174, 530 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Chap II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548 Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548, 634 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548

table of international instruments    xli Art 38 . . . . . . . . 5, 6, 9, 17, 18, 20–​23, 28, 33–​6, 122, 126, 158, 165–​8, 171, 173, 175, 179–​83, 188, 190, 191, 193, 194, 198, 199, 211, 212, 214, 222, 234, 265, 270, 271, 273–​6, 279, 301, 355, 394, 396, 422, 426–​31, 433–​35, 438, 441, 518–​22, 527, 530, 542, 543, 545, 546, 548–​53, 563, 575, 578, 583, 584, 597, 600, 614, 615, 626, 643–​5, 647, 655, 704, 705, 728, 729, 760, 792, 798, 809, 837, 900, 914, 916, 921, 927, 928, 931, 934, 939, 940, 943, 958, 960–​3, 966, 976, 981, 982, 1022, 1033, 1072, 1096, 1130, 1138 Art 38(1) . . . . . 33, 275, 422, 458, 626, 643, 698, 728, 729, 739, 791, 815, 818, 820, 824, 1154 Art 38 (1) (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627, 630, 643, 728, 820, 961 Art 38 (1) (b) . . . . . . . . . . . . . 627, 630, 643, 728, 760, 820, 961, 970, 1144, 1146, 1152 Art 38 (1) (c) . . . . . . . . . . . 30, 193, 282, 555, 575, 627, 638, 643, 674, 675, 728, 760, 820, 853, 854, 943, 952, 953, 957, 961, 974, 975, 1108, 1130, 1140 Art 38 (1) (d) . . . . . . . . . . . . . . 282, 283, 339, 426, 515, 516, 521, 627, 643, 728, 813, 821, 823, 824, 961, 1097, 1103, 1106, 1146 Art 38 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 549 Art 38 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274, 283, 549, 626, 644, 801 Art 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548 Statute of the International Criminal Tribunal for the Former Yugoslavia UNSC Res 955 (25 May 1993) UN Doc S/​25704 . . . . . . . . . . . . . . . . . . . . . . . . 901, 905, 916 Statute of the International Law Commission (ILC Statute) UNGA Res. 174 (II) (21 November 1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611 Statute of the Permanent Court of International Justice (adopted 13 December 1920, entered into force 20 August 1921) 6 LNTS . . . . . . . . 389, 147, 153–​5, 157, 162, 165, 166, 168, 173, 182, 206, 270–​2, 429, 438, 482, 506, 549, 627, 973, 974 Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273, 429 Art 38 . . . . . . . . . . . . . . . . . . . . . . 147, 154, 157–​9, 166, 167, 182, 183, 206, 217, 222, 229, 270, 272, 274–​6, 482, 546, 549, 648 Art 38 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 815 Art 38 (1) (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 973 Statute of the Special Court for Sierra Leone (adopted 16 January 2002, entered into force 12 April 2002) 2178 UNTS 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901 Treaty Establishing a Common Market between the Argentine Republic, the Federal Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay (MERCOSUR) (signed 26 March 1991, entered into force 29 November 1991) 2140 UNTS 257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945 Treaty Establishing a Constitution for Europe (signed 29 October 2004, not ratified) [2004] OJ C 310/​1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779 Art IV-​447 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779 Treaty Establishing the European Economic Community (Treaty of Rome) (signed 25 March 1957, entered into force 1 January 1958) 298 UNTS 11 . . . . . . . 772, 773, 781 Art 236 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776 Art 293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 782

xlii   table of international instruments Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and the United States of America (Jay Treaty) (Philadelphia, 24 June 1794) . . . . . . . . . 1122 Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran (signed 15 August 1955, entered into force 16 June 1957) 284 UNTS 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051, 1062 Art XX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062 Art XX (1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051 Treaty for the Amicable Settlement of All Causes of Differences Between the Two Countries (Great Britain-United States of America) (Treaty of Washington) (signed 8 May 1871, entered into force 17 June 1871) 143 CTS 145 . . . . . . . . . . . . . . 151 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C 306/​01 . . . . . . 779, 780, 782, 1022 Treaty of Peace between France and the Holy Roman Empire (Treaty of Westphalia) (signed 24 October 1648) 1 CTS 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Treaty of the Southern African Development Community (signed 17 August 1992, entered into force 30 September 1993) (1993) 32 ILM 116 . . . . . . . . . . . . . . . . . 793 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793 Treaty on European Union (Maastricht Treaty) (adopted 7 February 1992 entered into force 1 November 1993) [1992] OJ C 191/​1 . . . . . . . . . . . . . . . . . . . . 773, 781 Treaty on European Union (Consolidated) [2016] OJ C 202 (TEU) . . . . 558, 770, 771, 785, 793, 996, 1022 Art 3 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 996 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771, 1022 Art 6 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 780, 1022 Art 6 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 558 Art 6 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1022 Art 19 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 775 Art 21 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 996 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776, 779, 780 Art 48 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 780 Treaty on the Functioning of the European Union (TFEU), signed on 13 December 2007 (Consolidated version 2016) [2016] OJ C 202 . . . . . .559, 770–​4, 785, 795, 803, 817 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774 Art 126 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803 Art 132 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803 Art 136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 780 Art 216 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 777 Art 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795, 803 Art 259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795 Art 260 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795 Art 260 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 817 Art 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .772, 773 Art 290 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774 Art 291 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774 Art 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774 Art 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 775 Art 344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 559

table of international instruments    xliii UNGA Res. ES-​10/​6 (9 February 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 804 UNGA Res. 55/​89 (22 February 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 UNGA Res. 56/​83 (12 December 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 874 UNGA Res. 56/​83 (12 December 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 815 UNGA Res. ES-​10/​15 (2 August 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802 UNGA Res. 60/​147 (21 March 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 UNGA Res. 60/​251 (3 April 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854 UNGA Res. 63/​201 (28 January 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794 UNGA Res. 68/​262 (27 March 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794 UN HRC Res. 1993/​23 (8 December 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 850 United Nations Convention against Transnational Organized Crime (UNTOC) (adopted 15 November 2000, entered into force 29 September 2003) 2225 UNTS 209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 United Nations Convention on the Law of the Sea (UNCLOS) (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 . . . . 297, 458, 498, 715, 778, 940, 945–​51, 995, 1021 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950 Art 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464 Art 60 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949 Art 136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458 Pt XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948, 949 Art 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949 Art 207 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949 Art 208 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949 Art 209 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949 Art 210 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949 Art 211 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949 Art 211 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948 Art 212 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .949 Art 311 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948 Arts 312–​314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948 United Nations Convention on Contracts for the International Sale of Goods (adopted 11 April 1980, entered into force 1 January 1988) 1489 UNTS 3 . . . . . . . 1073 United Nations Convention on Jurisdictional Immunities of States and Their Property (adopted 2 December 2004, not yet in force) (2005) 44 ILM 803 . . . . . . 1145 Art 21 (1) (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 . . . . . 941, 945, 952, 956, 967, 968, 979 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 968, 971 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 968 Art 3 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945, 968 Universal Declaration of Human Rights (UDHR) (adopted 10 December 1948) UNGA Res 217A (III) . . . . . . . . . . . . . . . . . . . . . . 573, 854, 856, 862, 866, 867 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862 UNSC Res. 461 (31 December 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802 UNSC Res. 808 (3 May 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917

xliv   table of international instruments UNSC Res. 827 (25 May 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 UNSC Res. 955 (8 November 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 UNSC Res. 1244 (10 June 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 556 UNSC Res. 1325 (31 October 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 UNSC Res. 1373 (28 September 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764 UNSC Res. 1546 (8 June 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 804 UNSC Res. 1593 (31 March 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 UNSC Res. 1617 (29 July 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803 UNSC Res. 1674 (28 April 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 UNSC Res. 1737 (23 December 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803 UNSC Res. 1747 (24 March 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803 UNSC Res. 1803 (3 March 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803 UNSC Res. 1846 (2 December 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634 UNSC Res. 1970 (26 February 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 UNSC Res. 2068 (19 September 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 UNSC Res. 2127 (5 December 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 UNSC Res. 2134 (28 January 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 UNSC Res. 2246 (10 November 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634 Vienna Convention on the Law of Treaties (VCLT) (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 . . . . . .37, 147, 256, 294, 374, 375, 377, 381, 403, 404, 410, 412, 423, 425, 429–​32, 434, 438, 441, 458, 463, 473, 474, 485, 495, 555, 558, 575, 584, 594, 597, 628, 629–​31, 648, 715, 776, 777, 779, 780, 785, 786, 837, 846–​51, 853, 857, 866, 868, 873, 881–​3, 887, 902, 903, 908, 947, 956, 966, 1010, 1028, 1035–​7, 1048, 1049, 1052, 1054, 1058–​65, 1089, 1105, 1120, 1140, 1152 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Art 2 (1) (a)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908 Art 5  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432 Art 7  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1140 Art 10  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1054 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848, 849 Art 19c  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Art 19ff  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 847 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848, 849 Art 20 (4) (b)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849 Art 21  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849 Art 21 (3)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825, 1120 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629, 947, 1059 Art 30 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Art 30 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 628 Arts 31–​33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473, 474, 1052 Art 31 . . . . . . . . . . . . . . . 37, 406, 407, 409, 423, 425, 430, 432, 434, 458, 485, 837, 902, 947, 1048, 1049, 1052–​5, 1058, 1062–​5 Art 31 (1) . . . . . . . . . . . . . . . . . . . . . . . . 189, 868, 904, 1049, 1050, 1052, 1053, 1056 Art 31 (1) (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .425 Art 31 (1) (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947

table of international instruments    xlv Art 31 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378, 485, 1052, 1054, 1056 Art 31 (2) (a)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056 Art 31 (2) (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056, 1059 Art 31 (3) . . . . . . . . . . . . . . . . . . . . . . . . . 409, 413, 947, 1028, 1052, 1053, 1055 Art 31 (3) (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378, 946, 956, 1056, 1057 Art 31 (3) (b) . . . . . . . . . . . . . . . 458, 822, 857, 860, 1056, 1057, 1059, 1060, 1140, 1152 Art 31 (3) (c) . . . . . .37, 378, 434, 458, 558, 628, 866, 1036, 1037, 1049, 1057–​62, 1089, 1108 Art 31 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294, 407, 1048 Art 32 . . . . . . . . . . . . . . . 37, 294, 407, 409, 412, 413, 423, 425, 430, 432, 458, 902, 1048, 1049, 1052–​55, 1057, 1060–​65 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048, 1054 Arts 34–​37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 851, 866, 1010 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853, 866 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776, 779, 780 Art 40  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779 Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 777, 947, 1035 Art 46  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 555 Art 51  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495 Art 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575, 630, 631, 633, 715, 849, 947 Art 60  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 873 Art 60 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 850, 903 Art 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 631, 633, 715 Arts 64–​66  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (signed 21 March 1986, not yet in force) (1986) 25 ILM 543 . . . . . . . . . . 374, 375, 377, 381, 995, 1015, 1053, 1054 Art 53  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015

List of Abbreviations

AB Appellate Body AML/​CFT Anti-​Money-​Laundering and Controlling of the Financing of Terrorism ARIO Articles on the Responsibility of International Organizations ARSIWA Articles on Responsibility of States for Internationally Wrongful Acts ATS Alien Tort Statute AU African Union BIT Bilateral Investment Treaty CAT UN Council Against Torture CERD International Convention on the Elimination of All Forms of Racial Discrimination CFSP Common Foreign and Security Policy CIL Customary International Law CITES Convention on International Trade in Endangered Species CJEU Court of Justice of the European Union COP Conference of the Parties CSR Corporate Social Responsibility DHRL Domestic Human Rights Law DPH Direct Participation in Hostilities DSB Dispute Settlement Body DSU Dispute Settlement Understanding EC European Community ECHR European Convention on Human Rights ECSC European Coal and Steel Community ECtHr European Court of Human Rights EEC European Economic Community EEZ European Economic Zone EMU European Monetary Union ETI Ethical Trading Initiative EU European Union FAO Food and Agriculture Organization FATF Financial Action Task Force on Money Laundering FET Fair and Equitable Treatment FLA Fair Labour Association GAIRS Generally Accepted International Rules and Standards GAL Global Administrative Law GATT General Agreement on Tariffs and Trade GPIL General Principles of International Law

xlviii   list of abbreviations GPUL HRC IASB IBA IC ICANN ICC ICCPR ICL ICRC ICSID ICT ICTR ICTY IEL IFRS IGO IHL IHRL IIL ILA ILC ILHR ILO IMF IMO IMT IO IPPC-​BAT

General Principles of Union Law Human Rights Committee International Accounting Standards Board International Bar Association Independence Condition Internet Corporation for Assigned Names and Numbers International Criminal Court International Covenant on Civil and Political Rights International Criminal Law International Committee of the Red Cross International Convention on the Settlement of Investment Disputes International Criminal Tribunal International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Environmental Law International Financial Reporting Standards International Governmental Organization International Humanitarian Law International Human Rights Law International Investment Law International Law Association International Law Commission International Legal Human Rights International Labour Organization International Monetary Fund International Maritime Organization International Military Tribunal International Organization Integrated Pollution Prevention and Control Reference document on Best Available Techniques in the pulp and paper industry ISIS Islamic State of Iraq and Sham ISO International Organization for Standardization ITLOS International Tribunal for the Law of the Sea ITO International Trade Organization JHA Justice and Home Affairs LRTAP Long-​Range Transboundary Air Pollution MEA Multilateral Environmental Agreement MFA Ministry of Foreign Affairs MFN Most Favoured Nation NAFTA North American Free Trade Agreement NATO North Atlantic Treaty Organization NGO Non-Governmental Organization NIAC Non-​International Armed Conflict NJT Normal Justification Thesis NL Natural Law NLF National Liberation Front NMT Nuremberg Military Tribunals

list of abbreviations    xlix OECD Organization for Economic Cooperation and Development OHCHR Office of the United Nations High Commissioner for Human Rights OPEC Organization of the Petroleum Exporting Countries PCA Permanent Court of Arbitration PCIJ Permanent Court of International Justice PICRW International Convention for the Regulation of Whaling POPs Persistent Organic Pollutants ROSC Report on the Observance of Standards and Codes SANAF Argentinian Society of Analytical Philosophy SCSL Special Court for Sierra Leone SS Schutzstaffel TBT Technical Barriers to Trade TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union TRIPS Agreement on Trade-​Related Aspects of Intellectual Property Rights TWAIL Third World Approaches to International Law UDHR Universal Declaration of Human Rights UN United Nations UNCLOS United Nations Convention on the Law of the Sea UNCLOT United Nations Conference on the Law of Treaties UNEP United Nations Environment Programme UNGA United Nations General Assembly UNMIK United Nations Mission in Kosovo UNSC United Nations Security Council UPU Universal Postal Union VCLT Vienna Convention of the Law of Treaties WCO World Customs Organization WIPO World Intellectual Property Organization WTO World Trade Organization

List of Contributors

Anna Irene Baka Legal Officer at the Greek National Commission for Human Rights, and Ph.D. from The University of Hong Kong. Upendra Baxi Emeritus Professor of law at the University of Warwick, United Kingdom, and the University of Delhi, India. Samantha Besson Professor of Public International Law and European Law at the University of Fribourg, and Co-​Director of the European Law Institute of the Universities of Bern, Fribourg, and Neuchâtel, Switzerland. Annabel S. Brett Reader in the History of Political Thought at the University of Cambridge, United Kingdom. Jutta Brunnée Professor of Law and Metcalf Chair in Environmental Law at the University of Toronto, Canada. Anthony Carty Professor of Law at the Beijing Institute of Technology, School of Law, China. Richard Collins Lecturer of International Law at University College Dublin, Ireland. Pierre d’Argent Professor of Public International Law at the University of Louvain, Belgium, Associate Member of the Institute of International Law, and Member of the Brussels Bar. Jean d’Aspremont Professor of Public International Law at the University of Manchester, Co-​Director of the Manchester International Law Centre, United Kingdom, and Professor of International Law at Sciences Po Law School, Paris, France. Caleb M. Day Master of Theological Studies Graduate from the University of Notre Dame, United States. Erika de Wet SARChI Professor of International Constitutional Law at the University of Pretoria, South Africa, and Honorary Professor in the Faculty of Law, University of Bonn, Germany. Bruno de Witte Professor of European Law at Maastricht University, The Netherlands, and at the European University Institute, Florence, Italy.

lii   list of contributors Malgosia Fitzmaurice Professor of International Law at Queen Mary University of London, United Kingdom. Mónica García-​Salmones Rovira Adjunct Professor of International Law, University of Helsinki, Finland. Dominique Gaurier Honorary Professor of International Law at the University of Nantes, France. Michael Giudice Associate Professor of Philosophy at York University, Canada. Matthias Goldmann Assistant Professor for International Public Law and Financial Law at Goethe University Frankfurt, and Senior Research Associate at the Max Planck Institute for Comparative Public Law and International Law, Germany. Peter Haggenmacher Honorary Professor of International Law at the Graduate Institute of International and Development Studies, Geneva, Switzerland. Gleider I. Hernández Associate Professor (Reader) in Public International Law, and Deputy Director of the Global Policy Institute, at the University of Durham, United Kingdom. Duncan B. Hollis James E.  Beasley Professor of International Law at Temple University, United States. Mark Weston Janis William F. Starr Professor of Law, University of Connecticut, United States, and Visiting Fellow, Formerly Reader in Law, at the University of Oxford, United Kingdom. Jörg Kammerhofer Senior Research Fellow at the University of Freiburg, Germany. Alexandra Kemmerer Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, Germany. Jan Klabbers Academy professor (Martti Ahtisaari Chair) at the University of Helsinki, Finland, and Visiting Research Professor at Erasmus Law School, Rotterdam, The Netherlands. Robert Kolb Professor of International Law at the University of Geneva, Switzerland. David Lefkowitz Associate Professor of Philosophy, Politics, Economics and Law at the University of Richmond, United States. Randall Lesaffer Professor of Legal History at Tilburg University, The Netherlands, and Professor of International and European Legal History at the University of Leuven, Belgium. Lauri Mälksoo Professor of International Law at the University of Tartu, Estonia. José Luis Martí Associate Professor of Philosophy of Law at Pompeu Fabra University, Barcelona, Spain.

list of contributors    liii Robert McCorquodale Director of the British Institute of International and Comparative Law in London, and Professor of International Law and Human Rights at the University of Nottingham, United Kingdom. Eleni Methymaki Research Associate for International Law at the University of Glasgow, Scotland. Samuel Moyn Professor of Law and Professor of History, Yale University, United States. Mary Ellen O’Connell Robert and Marion Short Professor of Law at the University of Notre Dame, United States. Alain Papaux Professor of Legal Methodology and Philosophy of Law at the University of Lausanne, Switzerland. Joost Pauwelyn Professor of International Law at the Graduate Institute of International and Development Studies, Geneva, Switzerland and Murase Visiting Professor of Law at Georgetown University Law Center, United States. Mario Prost Senior Lecturer at Keele University, United Kingdom. Steven R. Ratner Bruno Simma Collegiate Professor of Law at the University of Michigan, United States. Catherine Redgwell Chichele Professor of Public International Law at the University of Oxford, United Kingdom. Donald H. Regan William W. Bishop, Jr Collegiate Professor of Law, and Professor of Philosophy at the University of Michigan, United States. August Reinisch Professor of International Law at the University of Vienna, Austria, and Member of the International Law Commission. Nicole Roughan Associate Professor at the National University of Singapore. Cedric Ryngaert Professor of Public International Law at Utrecht University School of Law, The Netherlands. Frederick Schauer David and Mary Harrison Distinguished Professor of Law, University of Virginia, United States. Stephan W. Schill Professor of International and Economic Law and Governance at the University of Amsterdam, The Netherlands. Iain Scobbie Professor of Public International Law and Co-Director of the Manchester International Law Centre, University of Manchester, United Kingdom. Yuval Shany Hersch Lauterpacht Professor of Public International Law at the Hebrew University of Jerusalem, Israel, and Member of the Human Rights Committee.

liv   list of contributors Bruno Simma Professor of International Law at the University of Michigan, Ann Arbor, a former Judge at the International Court of Justice, and currently a Judge at the Iran–​United States Claims Tribunal in The Hague, The Netherlands. Ole Spiermann Partner at Bruun & Hjejle, Denmark. Antonios Tzanakopoulos Associate Professor of Public International Law at the University of Oxford, United Kingdom. Raphaël van Steenberghe Professor of International Humanitarian Law at the University of Louvain (UCL), and Permanent Researcher of the Belgian National Fund for Scientific Research (FNRS), Belgium. Miloš Vec Professor of Legal and Constitutional History at the University of Vienna, and Permanent Fellow at the Institute for Human Sciences (IWM), Austria. Ingo Venzke Associate Professor at the University of Amsterdam, and Director of the Amsterdam Center for International Law, The Netherlands. Jorge E. Viñuales Harold Samuel Professor of Law and Environmental Policy at the University of Cambridge, Director of the Cambridge Centre for Environment, Energy and Natural Resource Governance (C-​EENRG), United Kingdom, and Of Counsel with Lalive. Detlef von Daniels Academic Coordinator, Research Group International Justice and Institutional Responsibility, Berlin–​Brandenburg Academy of Sciences and Humanities, Germany. Ingrid B. Wuerth Professor of International Law (Helen Strong Curry Chair), and Director of the International Legal Studies Program at Vanderbilt Law School, United States. Eric Wyler Lecturer in International Law at the Graduate Institute of International and Development Studies, Geneva, Switzerland, Maître de Conférences at Paris II (Panthéon-​Assas), France, IHEI member, and Chargé d’enseignement at GSI, University of Geneva, Switzerland.

THE SOURCES OF INTERNATIONAL LAW AN INTRODUCTION

Samantha Besson and Jean D’Aspremont*

I. Introduction The sources of international law constitute one of the most central patterns around which international legal discourses and legal claims are built. It is not contested that speaking like an international lawyer entails, first and foremost, the ability to deploy the categories put in place by the sources of international law. It is against the backdrop of the pivotal role of the sources of international law in international discourse that this introduction sets the stage for discussions conducted in this volume. It starts by shedding light on the centrality of the sources of international law in theory and practice (II:  The Centrality of the Sources of International Law in Theory and Practice). Secondly, it traces the origins of the doctrine(s) of sources of international law back to the modern tradition of international legal thought (III: The Enlightenment, Modernity, and the Origins of the *  Many thanks to Dr Sévrine Knuchel for her editorial assistance.

2    the sources of international law: an introduction Sources of International Law). The following section maps the types of controversies permeating contemporary debates on the sources of international law, and, in doing so, makes a virtue of the persistent and pervasive disagreements that pertain to the origins, criteria, functions, limitations, unity, and hierarchy, as well as the politics of the sources of international law (IV: The Disagreements about Sources in International Legal Theory and Practice). The final part provides a survey of the main choices made by the editors as to the structure of discussion of the sources of international law that takes place in this volume and sketches out the content of its successive chapters (V: A Preview of the Contents of the Volume).

II.  The Centrality of the Sources of International Law in Theory and Practice The question of the sources of international law pertains to how international law is made or identified. As is similarly witnessed in contemporary domestic law and theory,1 sources are one of the most central questions in contemporary international law, both in practice and in theory.2 Not only is it important for practitioners to be able to identify valid international legal norms and hence the specific duties and standards of behaviour prescribed by international law, but the topic also has great theoretical significance. The sources help understand the nature of international law itself, i.e. the legality of international law.3 Furthermore, accounting for the sources of international law means explaining some of the origins of its normativity,4 but, more importantly, discussing some of the justifications for its authority and for the exclusionary reasons to obey it places on its subjects, and hence its legitimacy.5 Sources 1   For a discussion in domestic legal theory, but with some comparisons with international law, see the various contributions in Isabelle Hachez, Yves Cartuyvels, Hugues Dumont, Philippe Gérard, François Ost, and Michel van de Kerchove, eds, Les sources du droit revisitées (Brussels: Publications des Facultés universitaires Saint-​Louis, Anthémis, 2012), especially its vol. 4, Théorie des sources du droit and the contributions by Philippe Gérard, Isabelle Hachez, Pierre d’Argent, Olivier Corten, and Jean d’Aspremont. 2   For an overview of the relationship between sources of international law and legality, normativity, and legitimacy, see Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–​85, 172–​8. 3   See ­chapter 25 by Pierre d’Argent in this volume. 4   See ­chapter 31 by Detlef von Daniels and ­chapter 32 by Nicole Roughan in this volume. 5   See ­chapter 33 by Richard Collins and ­chapter 34 by José Luis Martí in this volume.

samantha besson and jean d’aspremont    3 simultaneously shape the contours of the sites and tools of contestation in international legal discourse. Since it touches upon the nature, legality, normativity, and legitimacy of international law, as well as the sites and tools of its contestation, it is no surprise that the question of the sources of international law is and has been at the heart of perennial debates among international lawyers and scholars for centuries. Although—​and, probably, because—​it is one of the key questions in international legal discourses, the identification of the sources of international law has remained one of the most controversial legal issues in international legal practice and scholarship. It being so central enhances its controversial nature, but, interestingly, it being disputed also contributes to reinforcing its pivotal nature, thereby making sources one of the essentially contested concepts of international law.6 This is as true in theoretical and doctrinal scholarship, as it is in practice.7 A few observations may be formulated about the contentious character of the sources in theoretical, doctrinal, and practical debates. As far as international legal theory is concerned, theorists have long agreed to disagree about sources of international law. Many of those disagreements have originated in international lawyers’ inclination to transpose domestic categories or principles pertaining to sources in domestic jurisprudence into the international realm. It is therefore no surprise that some of the philosophical debates around sources in international law have come to reflect domestic ones.8 The problems related to such transposition of domestic law categories to international law are well known and it suffices to mention a few of them here. First of all, because large parts of international law are still articulated around the idea that States are the sole law-​makers and sole legal subjects, disagreements have arisen because the configuration of international law-​ making processes fundamentally departs from the centralized and top-​down processes experienced in domestic law. Secondly, sources of international law are equivalent and apply concurrently, and they are not therefore situated in a hierarchy to one another.9 Thirdly, sources of international  On essentially contestable concepts, see Walter B. Gallie, ‘Essentially Contested Concepts’, Proceedings of the Aristotelian Society 56 (1956):  167–​98; Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’, Law and Philosophy 21 (2002):  137–​ 64; Samantha Besson, The Morality of Conflict: Reasonable Disagreement and the Law (Oxford: Hart, 2005), p. 69 ff. Interestingly, François Ost, ‘Conclusions générales’, in Hachez et al., eds, Les sources du droit revisitées, vol. 4, 865–​997, 877, refers to this centrality cum controversy of sources in the practice, doctrine, and theory of law as a form of ‘schizophrenia’ on the part of lawyers. 7   On the relationship between the practice and the theory (and doctrine) of international law, see Samantha Besson, ‘International Legal Theory qua Practice of International Law’, in Jean d’Aspremont, André Nollkaemper, and Tarcisio Gazzini, eds, International Law as a Profession (Cambridge: Cambridge University Press, 2016), 268–​84. 8   See e.g., Philippe Gérard, ‘Les règles de reconnaissance et l’identification des normes juridiques valides’, in Hachez et al., eds, Les sources du droit revisitées, vol. 4, 19–​49; Isabelle Hachez, ‘Les sources du droit: de la pyramide au réseau, et vice-​versa?’, in Hachez et al., eds, Les sources du droit revisitées, vol. 4, 51–​100. 9   See ­chapter 29 by Erika de Wet and ­chapter 30 by Mario Prost in this volume. 6

4    the sources of international law: an introduction law are often closely intertwined with sources of domestic law and require, to some extent, incursions into comparative law;10 not only does the list of sources in international law largely emulate that of domestic law, but their respective sources often share processes or criteria, as exemplified by customary international law or general principles, but also by the interpretative role of the domestic judge in international law.11 Finally, not all sources of international law are general, and most of them actually give rise to relative obligations, thus triggering Prosper Weil’s famous critique of the ‘relative normativity’ of international law.12 Leaving aside these problems related to the lack of comparability between domestic and international law sources, it must be stressed that, at the theoretical level, the greatest challenge probably lies in the fact that there are potentially as many theories of the sources of international law, and the functions they perform, as there are theories of international law. This diversity in theoretical approaches to sources explains in turn some of the jurisprudential disagreements pertaining to the sources of international law.13 Importantly, nothing weds the theoretical interest for the sources of international law to legal positivism (and its so-​called ‘sources thesis’),14 even if, and for different reasons, legal positivist categorizations (e.g. references to the rule of recognition) have largely dominated the practical and doctrinal discourse within certain regimes of international law.15 Moreover, that does not mean that, within the legal positivist tradition, there has been a consensus on the understanding of the sources and their functions. There are theoretical disagreements aplenty about sources. They relate to various issues,16 in particular to the relationship between the ‘rule of recognition’ qua rule and its (diverging or complementary) practice by international legal officials, especially, but not only, judges;17 to the assimilation between Article 38 of 10   See Olivier Corten, ‘Les rapports entre droit international et droits nationaux: vers une déformalisation des règles de reconnaissance?’, in Hachez et al., eds, Les sources du droit revisitées, vol. 4, 303–​39. See also ­chapter 36 by Bruno de Witte and ­chapter 50 by Stephan W. Schill in this volume. 11   See, in this volume, c­ hapter 51 by Ingrid Wuerth and c­ hapter 52 by Cedric Ryngaert, but also ­chapter 38 by Eleni Methymaki and Antonios Tzanakopoulos. 12   Prosper Weil, ‘Towards Relative Normativity in International Law’, American Journal of International Law 77 (1983): 413–​42. See also John Tasioulas, ‘In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case’, Oxford Journal of Legal Studies 16 (1996): 85–​128. 13   See ­chapter 21 by Matthias Goldmann and ­chapter 22 by Alexandra Kemmerer in this volume. 14   See Besson, ‘Theorizing the Sources’, section 2. See, for instance, c­ hapter 44 by Jutta Brunnée or ­chapter 26 by Mary Ellen O’Connell and Caleb M. Day in this volume. 15   For the same observation in domestic law, see Hachez, ‘Les sources du droit: de la pyramide au réseau’, pp. 53–​4. In international law, see, for instance, ­chapter 47 by Joost Pauwelyn or ­chapter 43 by Catherine Redgwell in this volume. 16   See e.g., Besson, ‘Theorizing the Sources’; Liam Murphy, What Makes Law. An Introduction to the Philosophy of Law (Cambridge: Cambridge University Press, 2014), ch. 8 (‘What Makes Law Law? Law Beyond the State’). See also ­chapter 15 by David Lefkowitz, ­chapter 16 by Jörg Kammerhofer, ­chapter 27 by Michael Giudice, or ­chapter 31 by Detlef von Daniels in this volume. 17   See e.g., Richard Collins, The Institutional Problem in Modern International Law (Oxford: Hart, 2016).

samantha besson and jean d’aspremont    5 the Statute of the International Court of Justice (ICJ) and the rule of recognition;18 to the indeterminacy of the rule of recognition; to its validity and authority; to its plurality;19 and to its ability to account for sources like customary international law or general principles.20 It is important to realize that sources have not only been central in the legal positivist tradition in international law. Natural law approaches have continued to bestow important functions to the sources of international law, but have been permeated by similar controversies. Whilst shedding light on the inability of sources to distinguish between law and non-​law, as well as the exercise of power inherent in ascertaining international law,21 critical approaches themselves have been infused with debates as to the possible preservation of the law-ascertainment mechanism that is put in place by the sources of international law. These various perspectives, and the ways in which each of them construes sources and their functions are examined in the following chapters. As far as doctrinal debates about international law are concerned, disagreements are just as pervasive as in theory. To illustrate this point, it suffices to take the example of the ‘first-​year international law student’. Famously, first-​year international law students and newcomers to the field are repeatedly referred to Article 38 of the ICJ Statute’s catalogue of sources, albeit with a long list of caveats as to the exemplary and non-​exhaustive nature of that list and as to its lack of authority except for the ICJ. Source after source, they are then warned, time and again, about various seeming contradictions and imperfections in those sources and the criteria which they prescribe for the ascertainment of international legal rules: they are told about the existence of treaties that possibly bear effects on non-​parties, about the paradoxes of customary international law that binds by mistake, and about the lack of general authority of the international case law whose interpretations of international law actually fill the pages of their textbook and learning material. Students are also informed about the no longer so ‘subsidiary’ role of judicial decisions in determining international rules of law,22 or the increasing importance of doctrine in international law-ascertainment.23 Worse, by the end of their study of Article 38’s list 18   Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993). For a challenge of the idea that sources constitutes secondary rules, see Jean d’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’, British Yearbook of International Law 84 (2014): 103–30. 19   See ­chapter 27 by Michael Giudice in this volume. 20  On the latter, see e.g., Samantha Besson, ‘General Principles in International Law—​Whose Principles?’, in Samantha Besson and Pascal Pichonnaz, eds, Les principes en droit européen—​Principles in European Law (Geneva: Schulthess, 2011), 19–​64. 21   For some remarks, see ­chapter 19 by Ingo Venzke in this volume. 22   See e.g., Samantha Besson, ‘Legal Philosophical Issues of International Adjudication—​Getting Over the Amour Impossible Between International Law and Adjudication’, in Karin Alter, Cesare P. R. Romano, and Yuval Shany, eds, The Oxford Handbook of International Adjudication (Oxford: Oxford University Press, 2014), 413–​36, 413–​14. See ­chapter  37 by Yuval Shany and ­chapter  38 by Eleni Methymaki and Antonios Tzanakopoulos in this volume. 23   See ­chapter 23 by Iain Scobbie and ­chapter 24 by Alain Papaux and Eric Wyler in this volume.

6    the sources of international law: an introduction of sources, students are usually informed about the existence of other sources of international law that do not seem to have much to do with law. For instance, they are told about soft law that is described, in a sibylline way, as a kind of international law that is not yet law, but law in the making.24 They are also warned about new and, as a result, ‘non-​official’ international law-​making processes, i.e. law-​making that does not correspond to any of the processes officially recognized as sources of international law and hence that cannot be part of its sources strictly speaking, but that still produces international law (e.g. international organizations’ law).25 Here, distinctions start to proliferate, in particular between formal and informal sources, between formal and material sources, and so on.26 Law-​making is indeed an area of the practice of international law that has changed most radically over the past fifty years, especially since the list of sources of international law of Article 38 of the ICJ Statute was last codified in 1945. This may actually explain, as we will see, why so many international lawyers refer to the so-​called ‘traditional’ or ‘classical’ (list of) sources of international law and doctrines thereof,27 either to endorse them or to distantiate themselves from them. A final cause of puzzlement for the student reading doctrinal accounts of sources of international law lies in the fact that those new developments in the international law-​making process seem to be accommodated differently in different regimes of international law, and their respective understanding of the sources of international law. This is rightly perceived by some as a challenge to the existence of a general doctrine or, at least, of a general regime of the sources of international law, as it raises the well-​known threat of the fragmentation of international law’s ‘secondary rules’ of international law-​making.28 This challenge, if vindicated, would seem to constitute a final blow to the possibility of a unified doctrine of sources of international law, and hence arguably to a unified concept of (general) international law itself.29 Finally, as far as practice is concerned, the deployment of modes of legal reasoning associated with the sources of international law may be observed in almost

  On soft law in domestic and international legal theory, see Hachez, ‘Les sources du droit: de la pyramide au réseau’, pp. 87–​93; Gérard, ‘Les règles de reconnaissance’, pp. 35–​47. See also ­chapter 31 by Detlef von Daniels, ­chapter 43 by Catherine Redgwell, and ­chapter 50 by Stephan W. Schill in this volume. 25   See ­chapter 45 by Jan Klabbers and ­chapter 46 by August Reinisch in this volume. 26   On those distinctions and their respective meanings, and on the relations between those types of sources, see Hachez, ‘Les sources du droit: de la pyramide au réseau’, pp. 53–​7. 27   For a useful overview of the various conceptions of ‘doctrine’, see Thomas Skouteris, The Notion of Progress in International Law Discourse (The Hague: Asser Press, 2010), pp. 94–​5 (he distinguishes three meanings of the term legal doctrine). 28   See e.g., c­ hapter 41 by Raphaël van Steenberghe and ­chapter 42 by Steven R. Ratner in this volume. 29   On sources and general international law, see ­chapter 39 by Samantha Besson and ­chapter 49 by Jorge E. Viñuales in this volume. 24

samantha besson and jean d’aspremont    7 all legal arguments.30 Unsurprisingly, most contentious points in argumentative disagreements then often boil down to—​direct or indirect—​disagreements on the sources of international law. This explains in turn why a critical aspect of the education of international lawyers is precisely the mastery of those modes of legal reasoning associated with the sources of international law.31 Indeed, in most professional environments, operating as an international lawyer and the making of international legal arguments primarily require the capacity to speak the language of the sources of international law.32 It is submitted here that the theoretical, doctrinal, and practical controversies about the sources of international law that have been sketched out in the previous paragraphs are bound to continue unabated. They are inherent in a normative practice like the legal practice, on the one hand, and in a discipline that has become largely confrontational, on the other. It is precisely the abiding nature of those debates that calls for a rigorous and comprehensive guide to help international lawyers navigate the broad range of theories and the debates about the sources of international law. Important changes in international law-​making processes in recent practice also make this taking-​stock exercise timely. This is even more crucial as classical or seminal works on the sources of international law are by and large outdated.33 There have been recent publications on the topic, but most of them are selective and do not offer the kind of comprehensive approach to sources that is sought in this volume.34 Finally, most recent and comprehensive publications on the 30   For the contrary observation and argument that (domestic or international) legal practitioners do not discuss sources as much as legal scholars, see the discussion in ­chapter 34 by José Luis Martí in this volume. 31  That may be conducive to what has been called ‘romanticism’ by Gerry Simpson, ‘On the Magic Mountain:  Teaching Public International Law’, European Journal of International Law 10 (1999): 70–​92, 72. 32   See, generally, Jean d’Aspremont, Epistemic Forces of International Law (Cheltenham:  Edward Elgar, 2015), pp. 9–​15. 33   It suffices here to mention, for instance: Max Sørensen, Les sources du droit international, étude sur la jurisprudence de la Cour permanente de justice internationale (Cophenhagen: Munksgoard, 1946); Clive Parry, The Sources and Evidences of International Law (Manchester: Manchester University Press, 1965); G. J. H. Van Hoof, Rethinking the Sources of International Law (Deventer: Kluwer, 1983); Antonio Cassese and Joseph H. H. Weiler, eds, Change and Stability in International Law-​Making (Berlin: De Gruyter, 1988); Gennady M. Danilenko, Law-​Making in the International Community (Dordrecht: Martinus Nijhoff, 1993); and Vladimir Duro Degan, Sources of International Law (The Hague: Martinus Nijhoff, 1997). Even Martti Koskenniemi’s edited book The Sources of International Law (London: Routledge, 2000), is a compilation of articles published between 1958 and 1997. 34   They are focused either on a specific source of international law—​Hugh Thirlway, International Customary Law and its Codification (Leiden:  A. W.  Sijthoff, 1972); Anthony D’Amato, The Concept of Custom in International Law (Ithaca:  Cornell University Press, 1971); Karol Wolfke, Custom in Present International Law, 2nd edn (Dordrecht, Martinus Nijhoff, 1993); Jan Klabbers, The Concept of Treaty in International Law (The Hague: Kluwer Law International, 1996); David Bederman, Custom as a Source of Law (Cambridge:  Cambridge University Press, 2010); Amanda Perreau-​Saussine and James B. Murphy, eds, The Nature of Customary Law: Legal, Historical and Philosophical Perspectives (Cambridge: Cambridge University Press, 2009); Curtis Bradley, Custom’s Future: International Law

8    the sources of international law: an introduction sources of international law lack a philosophical or jurisprudential approach, and remain largely doctrinal as a result.35 A terminological caveat is in order, at this stage. The concept of ‘sources’ is known to all legal traditions (whether domestic, regional, or international). Originally used as a metaphor (of fluidity) within a particular stato-​positivist theoretical framework,36 and maybe thanks to the transformative potential of that metaphor,37 the concept has acquired some semantics of its own in legal discourses. Unsurprisingly, the meanings of the concept vary dramatically,38 often according to the functions that are vested therein and the theories informing them. Authors in the volume have been asked to spell out their understanding of the sources as well as the functions they vest upon them in each chapter. As a result, the present introduction does not aim to put forward a single and uniform concept of sources or a canonical list thereof, but only to map the terrain for discussion.

III.  The Enlightenment, Modernity, and the Origins of the Sources of International Law The centrality of the (doctrine of) sources of international law in contemporary international legal theory and practice, while probably taken for granted by most (domestic and) international lawyers nowadays, is not self-​evident. Indeed, sources of law do not constitute pattern-of-argument structures that are inherent to law. Law in a Changing World (Cambridge:  Cambridge University Press, 2016); Brian Lepard, Reexamining Customary International Law (Cambridge: Cambridge University Press, 2017)—​or on a specific issue in the international law-​making process or on a specific approach to the latter—​Joost Pauwelyn, Ramses A. Wessel, and Jan Wouters, eds, Informal International Lawmaking (Oxford: Oxford University Press, 2012); Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011); and Antony Anghie, Imperalism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005). 35   See e.g., Alan Boyle and Christine Chinkin, The Making of International Law (Oxford: Oxford University Press, 2007); Hugh Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014); for an exception, however, see Yannick Radi and Catherine Brölmann, eds, Research Handbook on the Theory and Practice of International Lawmaking (Northampton: Edward Elgar, 2016). 36   Hence the drawing by M. C. Escher chosen for the Handbook’s cover. See also ­chapter 16 by Jörg Kammerhofer on the metaphor’s incompatibility with Hans Kelsen’s legal theory. 37   See Ost, ‘Conclusions générales’, pp. 868–​9, 870–​6. 38   See ibid., 886–​913. See e.g., the taxonomy of Philippe Jestaz, ‘Source délicieuse . . . Remarques en cascade sur les sources du droit’, Revue trimestrielle de droit civil (1993): 73–​85.

samantha besson and jean d’aspremont    9 can certainly be practised in a way that leaves no room whatsoever for the sources of law. The same holds with international law.39 In that respect, the cyclically recurring attempt to reinvent international law outside the sources of international law,40 before or even after the first codification of Article 38 of the ICJ Statute,41 while looking heretic to some contemporary international lawyers, may not be inherently contradictory with the idea of law and, respectively, of international law qua practice42—​or of early international law at least.43 In fact, while present in pre-​classical legal thought,44 sources of law constitute an artefact which grew into prominence with the Enlightenment,45 and reached an unprecedented sophistication with modernity.46 International law is no different in this respect.47 As a prominent and central pattern of argumentative argument structure, 39   For a discussion whether sources are a structural or conceptual feature of the law rather than a contingent feature and what the implications are either way for their justifications across (domestic and international) legal orders and for legal positivism, see ­chapter 34 by José Luis Martí in this volume. 40   For a discussion of contemporary attempts, see c­ hapter 9 by Mónica García-​Salmones Rovira and c­ hapter 10 by Upendra Baxi in this volume. On cycles in international legal thought, see David Kennedy, ‘Renewal Repeats: Thinking Against the Box’, NYU Journal of International Law and Politics 32 (2000): 335–​500. 41   See c­ hapter 6 by Lauri Mälksoo, c­ hapter 7 by Ole Spiermann, and c­ hapter 8 by Malgosia Fitzmaurice in this volume. 42   Although it may be with (international) law as a discipline: see ­chapter 1 by Peter Haggenmacher in this volume. 43   On the role of sources qua processes of re-​cognizing what is already cognate—​i.e. what he calls ‘double-​institutionalization’ through sources—​and hence on the distinction between the absence of sources in non-​complex or original normative (including legal) orders and their role in more complex or advanced legal ones, see Ost, ‘Conclusions générales’, pp. 918–​23. 44   See ­chapter 1 by Peter Haggenmacher and ­chapter 2 by Annabel S. Brett in this volume. 45   According to the liberal doctrine of politics, political freedom can only be preserved by a social order that does not pre-​exist and must accordingly be projected and legitimized. According to the liberal doctrine of politics, that order is legitimized by its grounding in the substantive consent of individuals. This liberal paradigm has huge implications for how law and modes of legal reasoning are understood and constructed. On classical international legal thought, see c­ hapter 3 by Dominique Gaurier and ­chapter 4 by Randall Lesaffer in this volume. 46   The consolidation of the sources of international law should not necessarily be equated historically with the rise of legal positivism, as sources had long played a central role in natural law theories. See ­chapter 5 by Miloš Vec and ­chapter 6 by Lauri Mälksoo in this volume. See also ­chapter 15 by David Lefkowitz, c­ hapter 16 by Jörg Kammerhofer and c­ hapter 26 by Mary Ellen O’Connell and Caleb M. Day in this volume. 47   The transposition of the Enlightenment project to international law was made possible by virtue of an analogy between the State and the individual of the liberal doctrine of politics. After Thomas Hobbes and Baruch Spinoza paved the way for a human analogy, Samuel von Pufendorf ascribed an intellect to the State and created anthropomorphic vocabularies and images about the main institution of international law, i.e. the State. Such anthropomorphism was later taken over by Emer de Vattel—​ not without adjustment—​and subsequently translated itself in the classical positivist doctrine of fundamental rights of States which contributed to the consolidation of modern international law in the nineteenth century. See Anthony Carty, The Decay of International Law: A Reappraisal of the Limits of Legal Imagination in International Affairs (Manchester: Manchester University Press, 1986), pp. 44–​6; Jean d’Aspremont, ‘The Doctrine of Fundamental Rights of States and Anthropomorphic Thinking in International Law’, Cambridge Journal of International and Comparative Law 4 (2015): 501–​20; Catherine

10    the sources of international law: an introduction the sources of international law—​and the modes of legal reasoning associated therewith—​are a product of the Enlightenment project and, arguably, of the liberal doctrine of politics.48 More specifically, some argue, sources constitute the linchpin of Enlightenment’s legalism,49 whereby international law is supposed to displace politics, or, at least, differentiate itself from it. This is how the sources of international law have been elevated into the central device to keep ‘politics’ or ‘morality’ at bay and to reduce international law to a ‘legal-​technical instead of ethico-​political matter’,50 whereby rules are formal, objectively ascertainable, and distinct from a programme of governance or a catalogue of moral values.51 With the Enlightenment, the sources of international law put in place a series of content-​independent criteria,52 whereby membership to the domain of legal bindingness—​by opposition to the domain of morality and politics—​could be ensured.53 It is noteworthy that, while being an offspring of Enlightenment’s legalism, the central role of sources in the way international law is thought and practised consolidated itself with the rise of modern international law in the nineteenth and twentieth centuries in the wake of the professionalization of the discipline.54 In fact, modern international law perpetuated the liberal structure of legal thought and

Brölmann and Janne Nijmann, ‘Legal Personality as a Fundamental Concept of International Law’, in Jean d’Aspremont and Sahib Singh, eds, Concepts for International Law—​Contributions to Disciplinary Thought (Cheltenham: Edward Elgar, forthcoming).  Roberto M. Unger, Knowledge and Politics (New  York:  The Free Press, 1975), pp. 76–​ 81; Martti Koskenniemi, From Apology to Utopia:  The Structure of International Legal Argument (Cambridge:  Cambridge University Press, 2005) (reissue with a new epilogue), p.  71; Martti Koskenniemi, ‘The Politics of International Law’, European Journal of International Law 1 (1990): 4–​32, 4–​5. Timothy O’Hagan, The End of Law? (Oxford: Blackwell, 1984), p. 183; Paul W. Kahn, The Cultural Study of Law. Reconstructing Legal Scholarship (Chicago: The University of Chicago Press, 1999), pp. 16–​18; Judith N. Shklar, Legalism:  Law, Morals, and Political Trials (Cambridge:  Harvard University Press, 1986), pp. 8–​9 and 16–​23. 49  On the idea of liberalism in international legal thought, see Koskenniemi, ‘The Politics of International Law’, pp. 5–​7 and Koskenniemi, From Apology to Utopia; Florian Hoffman, ‘International Legalism and International Politics’, in Anne Orford and Florian Hoffman, eds, The Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press, 2016), 954–​84, 961; Shklar, Legalism, p. viii and pp. 1–​28. 50  Koskenniemi, From Apology to Utopia, p. 82. 51   See ­chapter 17 by Jean d’Aspremont and c­ hapter 18 by Frederick Schauer in this volume. See also Jean d’Aspremont, ‘La déformalisation dans la théorie des sources du droit international’, in Hachez et al., eds, Les sources du droit revisitées, vol. 4, 265–​301. 52   It is content-​independent because ascertainment does not depend on the substance of the norm whose membership to the legal order is tested. See H. L. A. Hart, Essays on Bentham (Oxford: Clarendon Press, 1982), pp. 243–​68 and Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), pp. 35–​7. See also Fabio P. Schecaira, Legal Scholarship as a Source of Law (Heidelberg:  Springer, 2013), pp. 26–​7. 53   See Jean d’Aspremont, ‘Bindingness’, in d’Aspremont and Singh, eds, Concepts for International Law (forthcoming). 54   See Jean d’Aspremont, ‘The Professionalization of International Law’, in Jean d’Aspremont et al., eds, International Law as a Profession, 19–​37. See also Koskenniemi, From Apology to Utopia, pp. 122–​3. 48

samantha besson and jean d’aspremont    11 the division of the normative world between the ‘political’ or the ‘moral’ and the ‘legal’.55 Hence, in modern international law, sources remained a means for the displacement of politics and morality by law. Yet, with modern international law, the rudimentary modes of legal reasoning originally devised to determine membership to the domain of the legally binding appeared insufficient, overly State-​centred, and content-​dependent. This is how, in modern international law, what was later called ‘voluntarism’ by twentieth-​century international lawyers was supplanted by a new sophisticated and multi-​dimensional doctrine of sources geared towards the distinction between international law and politics for the sake of the legalistic project of displacement of the latter by the former.56 Even if the reference to State will has somewhat surprisingly persisted in contemporary international legal discourses as a strawman of convenience,57 or for other reasons related to the legitimating role of State consent,58 voluntarism was decisively jettisoned with modern international law in favour of an elaborate device that could supposedly ascertain legal validity with more ‘objectivity’. Most of the narrative of progress witnessed in the early twentieth century came to be traced back to the new sophisticated and supposed objectivity of the doctrine of the sources of international law.59 This modern heritage still deeply permeates the way in which international lawyers understand and resort to the sources of international law today. For contemporary international lawyers, the sources of international law continue to constitute the criteria for legal validity and the device by virtue of which a given norm or standard of behaviour is determined to be binding upon those actors subjected to it.60 Once a norm is ascertained as a legal norm by virtue of the doctrine of sources (and thus anchored in the international legal order), it becomes binding material   David Kennedy, ‘The Disciplines of International Law and Policy’, Leiden Journal of International Law 12 (1999): 9–​133; David Kennedy, ‘Tom Franck and the Manhattan School’, NYU Journal of International Law and Politics 35 (2003): 397–​435; Koskenniemi, ‘The Politics of International Law’, pp. 5–​7 and From Apology to Utopia, p. 158. See also Emmanuelle Jouannet, ‘A Critical Introduction’, in Martti Koskenniemi, The Politics of International Law (Oxford: Hart, 2011), 1–​32, 15. 56   On the development of this doctrine, see c­ hapter 5 by Miloš Vec and c­ hapter 6 by Lauri Mälksoo, as well as ­chapter 7 by Ole Spiermann and c­ hapter 8 by Malgosia Fitzmaurice in this volume. 57   See Jean d’Aspremont and Jörg Kammerhofer, ‘Introduction: The Future of International Legal Positivism’, in Jörg Kammerhofer and Jean d’Aspremont, eds, International Legal Positivism in a Post-​ Modern World (Cambridge:  Cambridge University Press, 2014), 1–​22; Richard Collins, ‘Classical Positivism in International Law Revisited’, in Kammerhofer and d’Aspremont, eds, International Legal Positivism, 23–​49. 58   On the distinction between international legal positivism and consensualism or voluntarism, on the one hand, and, more generally, between international legal validity or legitimacy and consent, on the other, see Besson, ‘Theorizing the Sources’, section 2; Samantha Besson, ‘State Consent and Disagreement in International Law-​Making—​Dissolving the Paradox’, Leiden Journal of International Law 29 (2016): 289–​316. 59   On how this was perceived as progress, see Martti Koskenniemi, ‘International Law in a Post-​ Realist Era’, Australian Yearbook of International Law 16 (1995): 1–​19; Skouteris, The Notion of Progress, especially ch. 3. 60   See ­chapter 25 by Pierre d’Argent in this volume. 55

12    the sources of international law: an introduction that is eligible for use in international legal argumentation.61 The continuous centrality of the sources in contemporary legal thought and practice remains informed by the Enlightenment’s idea of a displacement of politics and morality by law to which the sources of international law are meant to contribute. Yet, that centrality can probably also be explained by the ‘power-​sharing agreement’ of sorts about how to divide ‘the international’: to international lawyers the ‘legally binding’, to moral philosophers the ‘morally binding’, and to political scientists or international relations’ specialists all the rest.62 The enduring centrality and popularity of the sources of international law since the Enlightenment probably show that international lawyers have found in sources a useful tool to build international legal arguments and conceptualize international law.63 They are, however, no evidence that sources of international law actually perform (all) the functions assigned to them since the Enlightenment. Nor do they demonstrate that the sources of international law constitute a meaningful construction. The opposite argument could even be made. It is because the sources of international law are such a cardinal pattern of argument structure, someone may claim, that all the problems, loopholes, contradictions, and deceitfulness that come with modes of international legal reasoning associated with the sources of international law are so conspicuous. It suffices here to mention just a few of the many insufficiencies associated with the sources in international legal theory and practice.64 First of all, sources can partly explain the making and the bindingness of those standards identified as legal rules, but cannot account for that of systemic mechanisms,65 including of the sources themselves,66 and their nature.67 Secondly, the sophistication of the sources of international law that came with modernity did not provide for any indications as to how the sources themselves ought to be interpreted, the doctrine of interpretation being traditionally reserved

61   It is sometimes exceptionally contended that bindingness generates validity and not the other way around. See Giovanni Sartor, ‘Validity as Bindingness: The Normativity of Legality’, EUI Working Papers LAW No. 2006/​18, , accessed 16 January 2017. See also Nicole Roughan, ‘From Authority to Authorities: Bridging the Social/​Normative Divide’, in Roger Cotterrell and Maksymilian Del Mar, eds, Authority in Transnational Legal Theory: Theorising Across Disciplines (Cheltenham: Edward Elgar, 2016), 280–​99. 62  See d’Aspremont, ‘Bindingness’. For a critique, see Samantha Besson, ‘Moral Philosophy and International Law’, in Orford and Hoffman, eds, The Oxford Handbook of the Theory of International Law, 385–​406. 63   See ­chapter 27 by Michael Giudice and ­chapter 28 by Gleider I. Hernández in this volume. 64   For an overview, see Besson, ‘Theorizing the Sources’, pp. 164–​5. 65   On sources and system, see chapter 27 by Michael Giudice and chapter 28 Gleider I. Hernández in this volume. 66   See Besson, ‘Theorizing the Sources’, pp. 180–​1. 67   On sources qua practice rather than rules, see also Gérard, ‘Les règles de reconnaissance’, p. 29; Ost, ‘Conclusions générales’, pp. 923–​40.

samantha besson and jean d’aspremont    13 for the interpretation of those rules identified as legal rules by virtue of the sources.68 A third and related conceptual problem brought about by the sources of international law pertains to the occasional collapse of the distinction between sources, construed as law identification, and interpretation, approached as a content-determination technique, the latter being allegedly deployed only after a legal rule has been identified as a legal rule by virtue of the former.69 Fourthly, it has also been observed that the closure of the legally binding world at the heart of this construction also comes with internal contradictions.70 Fifthly, the doctrine of the sources of international law has similarly suffered from the artificiality of its supposedly inductive techniques of identification as well as its reductive descriptive and explanatory virtues.71 Finally, another cause of perplexity lies in the incapacity of sources to account for the perceived diversification of international law-​making processes and the multiplication of participants in those processes,72 obfuscating the actors and subjects at work behind the sources.73 Although the abovementioned difficulties—​mostly of a jurisprudential nature—​ are often discussed, they have not frustrated the paramount role assigned to the sources of international law. Of course, some of them have actually ignited some severe contestations of the sources of international law in the twentieth century and the beginning of the twenty-​first century.74 Those contestations have enjoyed some occasional, albeit short-​lived, success. Yet, they have not significantly dented the attachment of international lawyers to the sources of international law. Indeed, attempts to radically break away from the sources are marginal nowadays, theorists 68   On this distinction between the interpretation of primary rules and that of secondary rules in international law, see Duncan B. Hollis, ‘The Existential Function of Interpretation in International Law’, and Jean d’Aspremont, ‘The Multidimensional Process of Interpretation: Content-​Determination and Law-​Ascertainment Distinguished’, in Andrea Bianchi, Daniel Peat, and Matthew Windsor, eds, Interpretation in International Law (Oxford: Oxford University Press, 2015), respectively 78–​109 and 111–​29. See also Gérard, ‘Les règles de reconnaissance’, pp. 26–​7. See ­chapter 19 by Ingo Venzke and ­chapter 20 by Duncan B. Hollis in this volume. See also ­chapter 18 by Donald H. Regan, and on the distinction between law-​making and law-​enforcement, ­chapter 37 by Yuval Shany and ­chapter 38 by Eleni Methymaki and Antonios Tzanakopoulos. For an illustration, see Jean d’Aspremont, ‘The International Court of Justice, the Whales and the Blurring of the Lines between Sources and Interpretation’, European Journal of International Law 27 (2016): 1027–​41. 69 70   See generally Koskenniemi, From Apology to Utopia.  ibid. 71   Thomas Franck, The Power of Legitimacy among Nations (New  York:  Oxford University Press, 1990), p. 5. 72   See ­chapter 35 by Robert McCorquodale and ­chapter 36 by Bruno de Witte in this volume. See also Besson, ‘Theorizing the Sources’, p. 170. 73   See also Pierre d’Argent, ‘Le droit international: quand les sources cachent les sujets’, in Hachez et al., eds, Les sources du droit revisitées, vol. 4, 243–​64. See also Samantha Besson, ‘The Authority of International Law—​Lifting the State Veil’, Sydney Law Review 31:3 (2009): 343–​80. 74   For an overview of those contestations, see Jean d’Aspremont, ‘Towards a New Theory of Sources’, in Orford and Hoffman, eds, The Oxford Handbook of the Theory of International Law, 545–​63.

14    the sources of international law: an introduction preferring to focus on reform of the sources rather than on emancipation from them.75 For better or worse, sources of international law remain nowadays deeply entrenched, not only in the practice and theory of international law, but also in the consciousness of international lawyers. The foregoing does not mean that the abovementioned contestations of the sources have been futile. Many international lawyers have ceased to believe in the ideal of an objective device that allows the distinction between law and non-​law and the displacement of politics and morality, as contemplated by the Enlightenment and pursued by modernity. As is illustrated by many of the chapters in this volume, there seems to be more self-​reflection today in how international lawyers approach the sources of international law. Very few disparage sources altogether, but most of them distantiate themselves from what they have come to call the ‘traditional’ or ‘classical’ (list of) sources and identify new ones, together with new doctrines of sources.

IV.  The Disagreements about Sources in International Legal Theory and Practice The entrenchment of the sources of international law in the practice and theory of international law should not be construed as the manifestation of a consensus among professionals of international law about them. On the contrary, and arguably for that very reason, the dominant adherence to the sources of international law has been accompanied by constant contestation among international lawyers about their origins, criteria, functions, unity, and hierarchy. In short, disagreements among international lawyers about the sources of international law can be of four different types. First, it has become more blatant that international lawyers disagree on how the sources came to play the abovementioned cardinal role in international legal thought and practice. Even the above account of the sources as pattern-​of-​argument structures that was promoted by the Enlightenment is contested. Secondly, the criteria for the sources of international law, and especially the way in which the criteria to distinguish law and non-​law are to be deployed, are the object of relentless 75   See e.g., Harlan Cohen, ‘Finding International Law, Part II: Our Fragmenting Legal Community’, NYU Journal of International Law and Politics 44 (2012): 1049–​1107. See also d’Aspremont, ‘Towards a New Theory of Sources’.

samantha besson and jean d’aspremont    15 contention. Those disagreements on the law identification criteria provided by sources now extend beyond divides between schools of thought. Thirdly, disagreements about the very function(s) performed by sources of international law have equally emerged, for the sources of international law may carry very different meanings: a descriptive tool of law-​making processes; a set of yardsticks to ascertain existing legal rules; a system to interpret and determine the content of rules; a coalescing and structuring mechanism to ensure the unity and/​or the systematicity of international law; a device to vindicate or consolidate the morality of law; a tool to progressively develop new rules; a model to describe the exercise of public authority at the international level; a factor of identity for all professionals dealing with international law, etc. Finally, fractures have surfaced in relation to the unity of the doctrine of sources and its application to all regimes of international law in its mainstream version, international lawyers feeling that the projects carried out in some areas of international law are hampered by the rigidity of the sources of international law. This Handbook’s aim is not to salvage the centrality of the sources of international law, let alone Enlightenment’s legalism. Nor is it an endeavour to generate a consensus on the origins, the criteria, the functions, and the unity of the sources of international law. On the contrary, it is premised on the idea that there is a wide variety of conceptions and perspectives from which one may understand, assess, debate, or use the sources of international law. Indeed, it should be clear by now that the sources of international law may carry very different meanings for all those resorting to the sources of international law. These conceptions or perspectives are not only numerous and in potential tension with one another, but are themselves in constant transformation. They have changed a lot across time, space, culture, and schools of thought. They vary also between and within specific regimes of international law (e.g. whether that regime is submitted to compulsory adjudication or not), and depending on the kinds of international legal norms (e.g. rights or duties) or international legal subjects (e.g. States, international organizations, or individuals) at stake.76 Considering the multiple conceptions and perspectives on sources of international law, the Handbook refrains from seeking to propose anything like a or even the doctrine of sources, but endeavours to offer an authoritative guide to navigating the doctrines and debates about the sources of international law. It features original essays by leading international law scholars and theorists from a wide range of theo­retical and legal traditions, nationalities, and perspectives, in order to reflect the richness and diversity of scholarship in this area. At the same time, it is essential to stress that the Handbook is not a textbook on the sources of international law. It does not aim to restate diverse doctrines on the sources of international law, but to   See d’Argent, ‘Le droit international: quand les sources cachent les sujets’; see also ­chapter 25 by Pierre d’Argent and ­chapter 35 by Robert McCorquodale in this volume. 76

16    the sources of international law: an introduction probe at and revise them when needed. To do so, authors have been asked to produce novel and thought-​provoking chapters. Among many others, four main sets of perspectives have been chosen as backbone to the book: historical, theoretical, functional, and regime-​related ones. This choice is inevitably arbitrary, for other perspectives, probably equally interesting, could have been selected. Yet, it is the editors’ judgement that these perspectives are those which account the most insightfully for the different uses and understandings of sources around which the debates are organized, within both the international legal scholarship and domestic and international practice of international law. The focus on history is particularly important, especially in view of the embryonic state of the literature on the history of international law to date and on the topic of sources in particular. It also seems essential to allow historians to address those issues outside of a theoretical agenda, and vice versa for theorists who should not necessarily have to go over the history of the ideas discussed in their chapters. Another important question pertaining to the history of international law is how it penetrates the latter’s sources themselves.77 Because this volume does not envisage any settlement of the debate about the sources of international law and, more generally, acknowledges the confrontational nature of scholarship, it is configured so as to offer a platform for such debates on the histories, theories, functions, and regimes. At each level, it offers, with some exceptions, a set of pairs of chapters meant to provide a dialectical snapshot of the variations in international legal thought and practice on some of the most pressing issues that arise in connection with the sources of international law. This means that two distinct chapters are devoted to each issue, such chapters offering different views and engaging with one another as to shed light on the extent and cause of disagreements.78 One reason for adopting the dialogical approach is to underscore that there is a diversity of views that might be defended on a given topic, as opposed to some canonical view. However, we have not gone further and made a point of choosing in each case pairs of authors with radically contrasting views.79 Quite apart from anything else, this would have conveyed a seriously distorted impression of the nature of legal disputation. Sometimes, the most interesting and instructive disagreements are between authors who share a lot by way of agreement on fundamentals. More importantly, we have opted for a dialogical methodology in recognition of the fact that law develops through a process of genuine dialectical   See ­chapter 13 by Robert Kolb and ­chapter 14 by Samuel Moyn in this volume.   This structure was adopted in the Proceedings of the Aristotelian Society, , accessed 17 February 2017, and, closer to the legal field, in the book co-​edited by Besson and Tasioulas, The Philosophy of International Law. 79   Nor did we adopt the policy of ensuring that at least one of the authors on any given topic is a professional international lawyer. 77 78

samantha besson and jean d’aspremont    17 engagement with the views of others. Others’ views are not simply fodder for literature surveys or scholarly footnotes; instead, they are to be carefully articulated and subjected to critical scrutiny in light of the best arguments that can be formulated in their support.

V.  A Preview of the Contents of the Volume The book is divided in four parts: histories, theories, functions, and regimes of the sources of international law. Chapters in Part I (Histories) provide detailed and critical accounts of how sources of international law have been conceived of, both by practitioners and scholars, during the history of international law (from the scholastic period to the contemporary anti-​formalist era). Chapters in Part II (Theories) explore how the main theories of international law have addressed and understood sources of international law. Chapters in Part III (Functions) examine the relationships between the sources of international law and the characteristic features of the international legal order that are or should be related to international law-​making. Chapters in Part IV (Regimes) address various questions pertaining to the sources of international law in specific regimes of international law. The correspondence or, on the contrary, lack of correspondence between the arguments made in the chapters in the different sections constitutes one of the interesting features of the Handbook. The topics chosen for each pair of chapters under the four headings had to be carefully delineated so as to avoid overlaps or to encourage only productive ones, but also in order to keep the size of the book reasonable. Importantly, and for the same reasons, the editors decided against inserting ‘textbook’ topics, and, in particular, against addressing each of Article 38’s sources one by one, ‘new’ sources of international law per se, or the relationship between domestic and international sources of law. They have chosen instead to ask authors to address some or all of these key topics in their respective chapters albeit under a specific lens each time, thus most probably giving rise to productive contrasts of views on these topics and perhaps even allowing for the identification of new topics instead of continuously focusing on the same ones. In each chapter, authors were invited to be selective and to concentrate on elaborating upon and responding to some questions that seemed especially pressing or interesting to them. No attempt was made by any author, or combination of authors,

18    the sources of international law: an introduction to offer a comprehensive discussion of the legal questions arising within their topic. Instead, each author has had to limit the scope of coverage in their chapter in order to enhance its depth.

Part I The Histories of the Sources of International Law Chapters in Part I of the volume (Histories) provide detailed and critical accounts of how sources of international law have been conceived of, both by practitioners and scholars (were they both at the same time, as it was often the case, or distinct individuals), during the history of international law (from the scholastic period to the contemporary anti-​formalist era), including two chapters on the history of Article 38 of the ICJ Statute. Importantly, the focus on sources in the history of international law may not be universal, and this is discussed in two meta-​historical chapters. The last contributions of this first part of the book discuss whether legal history itself may be considered a source of international law. In his chapter on ‘Sources in the Scholastic Legacy: Ius Naturae and Ius Gentium Revisited by Theologians’, Peter Haggenmacher argues that enquiring into the sources of international law in the scholastics is somewhat adventurous, for the concept of sources of law obtained general currency in legal discourse, and international law took shape as a legal discipline, only after the heyday of scholasticism. And yet the two main pillars of what was to become classical international law in the eighteenth century—​natural law and the law of nations—​were both part of the theologians’ teachings of moral philosophy, especially with the Dominicans and later the Jesuits. Examining the two concepts handed down from Antiquity, Thomas Aquinas assigned them distinct places in his system of legal norms, while fathoming their respective grounds of validity. His endeavours were continued by his sixteenth-​century Spanish followers, who set out to explore the ‘internationalist’ dimensions of the Protean concept of ius gentium. Two names stand for the most significant contributions to its clarification:  Francisco de Vitoria and Francisco Suárez. The latter in particular decisively shaped the concept by cutting it down to a specifically interstate law of customary origin, supposed to complement the all-​too-​general principles of natural law in governing the intercourse of nations. Considerably developed by Grotius, this twofold law of nature and nations was also to lie at the bottom of his treatise on waging war and making peace. In her chapter on ‘Sources in the Scholastic Legacy: The (Re)construction of the Ius Gentium in the Second Scholastic’, Annabel S. Brett observes that talking of the ‘sources of international law’ is complicated in relation to later scholastic authors, both because they have no doctrine of ‘sources’ and because the phrase ius gentium, as they employ it, is not appropriately translated by ‘international law’. When they write about the ius gentium, they are engaged in an exercise of hermeneutic reconstruction of a domain of law that was legislated in the past, a reconstruction which

samantha besson and jean d’aspremont    19 is at the same time a construction of their own position in the present. They draw their materials for their reconstruction from scholastic authorities, from natural law, and from human practice and history. The possibility of abrogation, however, which has to be accounted for because of current Christian practice, puts pressure on even their most innovative thinking about the ius gentium, and shows yet again how difficult they find it to conceptualize making international law in the present, and thus to conceive of sources of international law in anything like the modern sense. In his chapter on ‘Sources in the Modern Tradition: An Overview of the Sources of the Sources in the Classical Works of International Law’, Dominique Gaurier observes that early writers on the law of war or on the law of peace offered their contributions in an intellectual context that was very different from our own. They were really attempting to provide explanations for the questions related to war and peace, and in doing so drew upon interesting elements in Roman or canon law. Yet, none of the sources available to them were sufficient to offer a comprehensive response to related legal issues, such as the sources of the law of nations, war prisoners, frontiers, diplomacy, or neutrality, among others. Although these authors were all largely relying on the Bible and on ancient or contemporaneous history, some also drew information from their own life experiences. The majority, however, built their theories on the basis of their own readings and legal knowledge. Only very few authors addressed the question of the sources of international law, which at the time consisted of common customs and the treaties concluded between the European nations. In his chapter on ‘Sources in the Modern Tradition:  The Nature of Europe’s Classical Law of Nations’, Randall Lesaffer maintains that the modern historiography of international law has ascribed pride of place to the jurisprudence of the law of nature and nations of the Early Modern Age, especially to the period running from Hugo Grotius to Emer de Vattel. Whereas these classical writers undeniably have exercised a significant influence on nineteenth-​century international law, their utility as a historical source for the study of the classical law of nations of the late seventeenth and eighteenth centuries has been far overrated. The development of the law of nations in that period was much more informed by State practice than historians have commonly credited. Moreover, historiography has overestimated the novelty of the contribution of Early Modern jurisprudence and has almost cast its major historical source of inspiration into oblivion: the late medieval jurisprudence of canon and Roman law. It is important to restore medieval jurisprudence to its rightful place in the grand narrative of the evolution of international law. Doing this renders a deeper insight into the dynamics and concerns of the natural jurisprudence of the Early Modern Age. It shows that natural jurisprudence acted as a vessel to recycle many of the doctrines of general medieval jurisprudence back into the language of the newly autonomous law of nations. For most of the Early Modern Age, the writers of the law of nations did not give the same central place to the doctrine of sources as nineteenth-​and twentieth-​century positivist international legal theory. The main thrust of their theoretical discourse centred on the

20    the sources of international law: an introduction dualist nature of the law of nature and nations and the relation between natural and positive law. It was the articulation of the positive law of nations as a distinct, if not completely independent body of law over the late seventeenth and eighteenth centuries which urged on the discussion about its sources. By the turn of the eighteenth century, a mainstream position had been formed around a rudimentary theory which placed ‘consent’ at the basis of legal obligation and indicated treaties and custom as the sources of the law of nations. This scholarly position was an apt, if only partial reflection of what practitioners understood the law of nations to be. Practitioners had a somewhat wider understanding of the theory of sources as they also comprehended general principles of law and political maxims under the notion of law of nations. Moreover, while scholars placed much emphasis on the role of consent—​which can be considered to preconfigure the later doctrine of opinio juris sive necessitatis—​in reality customs were accepted on the basis of the longevity and commonality of their application and invocation. In his chapter on ‘Sources in the Nineteenth-​Century European Tradition: The Myth of Positivism’, Miloš Vec analyses the sources of international law in the nineteenth-​century European tradition. The chapter includes scholars and theorists from a range of nationalities (German, English, American, French, Italian, Swiss, Austrian, Dutch, Belgian, Danish, Portuguese, Russian-​Estonian, Chilean, Argentinean), different professions and perspectives, focusing on selected authors from various European and American countries and regions between 1815 and 1914. These jurists, philosophers, political writers, and theologians discussed the notion of ‘source’ and elaborated extensively on a theory of sources. Such elaborations could then be found in all contemporary textbooks, but no consensus was identified. Terminology changed as much as the canon of sources did from author to author. Different to what was often claimed, natural law was not excluded from the list of international law’s sources. On the contrary, close entanglements between natural law (in different varieties) and positive law were claimed by nineteenth-​ century international lawyers. Even divine law was sometimes explicitly named as a source when debating international law’s normativity. This had often to do with their linking of international law to various kinds of morality. Within this canon of sources no clear hierarchy existed, no rules for the collision of different kinds of sources were posited. The field thus remained very flexible for attaining any results when debating regulatory matters, although the authors claimed to be non-​political. In his chapter entitled, ‘Sources in the Nineteenth-​Century European Tradition: Insights From Practice and Theory’, Lauri Mälksoo examines how international lawyers arrived in 1920 at the codification of Article 38 in the Statute of the Permanent Court of International Justice (PCIJ) (later ICJ). The codification is explained as a victory of legal positivist ideas over natural law concepts, although natural law ideas never went away completely. An overview of the positions defended in the late-​nineteenth-​century literature of international law demonstrates that the codification largely reflected predominant ideas in the European

samantha besson and jean d’aspremont    21 tradition of international law. Legal positivism had undertaken quite a successful attack against natural law, even though leading international lawyers like Georg Friedrich von Martens had become ‘syncretists’ and combined legal positivist and natural law ideas. When comparing the predominant views on sources of international law in the nineteenth century and in the twenty-​first century, the differences in the practice of international law must be kept in mind, for example the different understandings of State sovereignty and the shortage of international courts back then. In this sense, the nineteenth-​century doctrine of sources partly reflected a different reality. In his chapter entitled ‘The History of Article 38 of the Statute of the International Court of Justice:  “A Purely Platonic Discussion”?’, Ole Spiermann observes that Article 38 of the ICJ Statute intends to define so-​called sources or origins of international law to be used by the World Court. The text dates back to 1920, before the predecessor of the ICJ, i.e. the PCIJ, took up its activities. The author notes that since 1920, Article 38 has featured prominently in the theory on so-​called sources of international law, while the provision has been of little relevance in the case law of the ICJ and its predecessor. Based mainly on historical records, the chapter seeks an explanation, which in turn may shed new light on sources theory. In her chapter entitled ‘The History of Article 38 of the Statute of the International Court of Justice: The Journey from the Past to the Present’, Malgosia Fitzmaurice critically analyses the history of Article 38 of the ICJ Statute with a view to reflecting on its current status. The main focus of her chapter is to look at sources of international law through the prism of their historical development, including potential ‘new’ sources (acts of international organizations, unilateral acts of States, soft law) which have emerged long after the twelve ‘wise men’ of the Advisory Committee of Jurists had completed their task of drafting Article 38. The chapter also deals with the ‘classical’ sources of international law, such as customary international law and general principles of law, taking into account how various courts and tribunals approach these sources. In her chapter on ‘Sources in the Anti-​ Formalist Tradition: A Prelude to Institutional Discourses in International Law’, Mónica García-​Salmones Rovira traces the legal and political principles of two important schools of the twentieth century—​the New Haven School and the School of Carl Schmitt—​and situates them in their geographical and historical contexts. The chapter analyses commonalities, and especially differences in their political and legal projects. It further argues that reaction against a naïve positivism reigning during the past century in international law essentially determined developments in both schools’ understanding of the concept of sources of law. Another important factor in those developments was the peculiar geo-​political projects of each school. In the discussion of Schmitt, the chapter focuses on sources of domestic law and seeks to understand the relationship between the sources of domestic and international law as Schmitt saw it through the notion of ‘concrete-​order thinking’. Finally the chapter also addresses a trait shared

22    the sources of international law: an introduction by New Haven and Schmitt when connecting sources of law with politics, international organizations, and institutions. In his chapter entitled ‘Sources in the Anti-​Formalist Tradition: “That Monster Custom, Who Doth All Sense Doth Eat” ’, Upendra Baxi explores the dialectics of international customary law:  in his view, custom is at once a sheet anchor of public international law and its rope of sand as well. The chapter discusses aspects of Mónica García-​Salmones Rovira’s chapter; the Third World Approaches to International Law (TWAIL) contexts of ‘custom’ as the source of international law norms and standards; the jusnaturalist invocation of custom specifically in the context of Warren Hastings’ trial and impeachment before the House of Commons; and the idea of a ‘future’ custom. Of course, if the perspective of a universalistic precolonial theory and movement in customary international law is to be accepted, much of the exciting TWAIL thought about resistance and renewal stands redirected to the varieties of imperial legal positivisms. While the Global South State practice in relation to customary obligation is yet to be adequately theorized, the author asks whether the UN Charter principle-​and-​purpose-​centric perspective, rather than Empire-​centric, is a perspective more relevant to our reconceptualization of the role of custom as a source for a future international law, especially in the Anthropocene era. The chapter by Anthony Carty and Anna Irene Baka, entitled ‘Sources in the Meta-​ History of International Law: From Liberal Nihilism and the Anti-​Metaphysics of Modernity to an Aristotelian Ethical Order’, offers an alternative to the Hegelian meta-​historical narrative. It criticizes the aversion to metaphysics which essentially governs the whole history of the sources of international law. Ludwig Wittgenstein’s logical positivism and anti-​metaphysics paved the way to legal positivism, which took a new pathological turn with Hans Kelsen’s and Carl Schmitt’s fixation on ideological purity due to suspicion and fear of the other. International legal positivism means acquiescence in coercive international relations. The history of international law is one of continuing coercion, rooted in the racial shadow of liberalism. The authors offer a discussion of the theory of legal obligation in Emer de Vattel, the place of imperialism in the history of international law, and the continuing mainstream discussion of unequal treaties. Edmund Husserl’s phenomenology provides an analytical frame for the bracketing and suspension of these historical pathologies and subsequent exposition of the primordial empirical data that gave birth to the very idea of international law. Anti-​metaphysics implies an ontological void which produces a lack of empathy and trust. The authors suggest that this void can and must be replaced with a new dialectic based on Aristotelian virtue ethics and idea of justice. In his chapter entitled ‘Sources in the Meta-​History of International Law: A Little Meta-​Theory—​Paradigms, Article 38, and the Sources of International Law’, Mark Weston Janis introduces a meta-​theory—​that is a theory about theories—​of international law. To do so, it employs the insights of Thomas Kuhn, a historian of

samantha besson and jean d’aspremont    23 science, who invented the widely used terms ‘paradigm’ and ‘normal science’. Kuhn argued that once a paradigm has been accepted by a scientific community, most scientists accept it without much question. Scientists become simple ‘problem solvers’ working within the scope of the paradigm, within normal science. When the paradigm is overwhelmed—​a ‘scientific revolution’—​a new paradigm emerges. For international law, a paradigm of sources answers a multitude of questions, including the definition of the field and the legitimacy and universality of its rules. Earlier paradigms of the sources of international law were rooted in the Bible and church commentary, then in philosophy, for example, naturalism, positivism, and Marxism-​Leninism. Today, the paradigm for the sources of international law is Article 38 of the ICJ Statute. Article 38 emerged during and after World War I when international lawyers, faced with the horrors of that awful conflict, lost faith in their old discipline, what might be termed, per Kuhn, a scientific revolution. Nowadays, Article 38 remains attractive, first because the ICJ and its Statute are almost universally accepted, secondly because it is neatly formulated, thirdly because the paradigm has been confirmed in case law and commentary, and fourthly because it is widely taught. Robert Kolb, in his chapter on ‘Legal History as a Source of International Law: From Classical to Modern International Law’, examines to what extent ‘history’ can be considered a source of international law. His chapter argues, in a classical way, that history is a material source of international law, but also examines some norms of positive international law which refer to historical facts. In his chapter on ‘Legal History as a Source of International Law: The Politics of Knowledge’, Samuel Moyn claims that no serious theory of the sources of international law can avoid what professional historians now take for granted: namely, that historical knowledge is necessarily political. Indeed, the uses of history in the ascertainment of the requirements of international law fit well the theory that historical knowledge is ineradicably political, though contained by professionalism itself. This theory is outlined in the chapter, then tested by examining the search in recent litigation of the United States Supreme Court for whether there is a customary international law norm of corporate liability for atrocity.

Part II The Theories of the Sources of International Law Chapters in Part II of the volume (Theories) explore how the main theories of international law have addressed and understood sources of international law. Even though some of the issues in this section may overlap with the historical discussions in Part I, the focus and the method of the chapters in this section are fundamentally different. The chapters in Part II spell out clearly what the main positions are on sources within each theoretical tradition and discuss them normatively, rather than historically. Although this is not without an overlap with some of the chapters

24    the sources of international law: an introduction in Part III, the present part also includes a chapter on the role of sources in theories that are devoted to interpretation. Again, the focus on sources in the theory of international law may not be universal, and this is discussed in two meta-​theoretical chapters. The last contributions discuss whether legal theory itself may be considered a source of international law. It must be acknowledged that this part of the volume devoted to theories of international law engages with only a limited number of them. Editorial as well as material constraints led the editors to pair the chapter written by Mary Ellen O’Connell and Caleb M. Day originally entitled ‘Sources in Natural Law Theories: Natural Law as Source of Extra-​Positive Norms’ with the chapter of Pierre d’Argent entitled ‘Sources and the Legality and Validity of International Law: What Makes Law “International”?’, thereby moving the former to the part devoted to the functions of sources where the latter was and still is located. Together, these two chapters, now found in Part III, provide the reader with useful and innovative insights on the various ways in which the sources contribute to the validity (and validation) of international law and the limitations thereof. The resulting limited number of theories examined in the current part is also alleviated by the extent to which theories—​and the methodological, argumentative, and value-​based choices of which they are the shortcuts—​inform all chapters in the volume. The chapter by David Lefkowitz on ‘Sources in Legal Positivist Theories: Law as Necessarily Posited and the Challenge of Customary Law Creation’ begins by examining the case for legal positivism, understood as the thesis that the existence of law is a matter of its social source, regardless of its merits. Descriptive, normative, and conceptual arguments are considered with the aim of demonstrating that what follows for the sources of international law from the commitment to positivism depends on the specific defence offered for accepting it as an account of the nature of law. The remainder of the chapter examines the possibility of customary international law: given that custom can and does serve as a source of international law, positivists owe a plausible account of how customary rules are made or posited. The account defended in the chapter characterizes customary norms as elements of a community’s normative practice, and custom formation as normative interpretations of patterns of behaviour that are successfully integrated into that normative practice. The normative practice account avoids the chronological paradox in custom formation, allows for so-​called instant custom, and explains why customary norms apply even in the absence of consent. A preliminary argument for the compatibility of the normative practice account of custom with Hans Kelsen’s and Joseph Raz’s respective arguments for legal positivism brings the chapter to a close. Jörg Kammerhofer’s chapter on ‘Sources in Legal Positivist Theories: The Pure Theory’s Structural Analysis of the Law’ claims that we look for the law in its ‘sources’. However, as many recognize, the mainstream riverine metaphor is fatally flawed. This chapter argues that there is an unlikely saviour—​the Kelsen–​Merkl Stufenbau theory of the hierarchy of norms. This may seem far-​fetched, but this

samantha besson and jean d’aspremont    25 theory is the closest there is to a legal common-​sense theory of the sources of international law. It is close to the mainstream, but provides a solid theoretical basis. It does so by fashioning the only necessary link between norms into the ordering principle of legal orders: the basis of validity of one norm is another. A special type of rule—​the empowerment norm—​is this basis; norms are created ‘under it’. In other words, law regulates its own creation. This chapter demonstrates that this understanding of hierarchy avoids many of the misconceptions of orthodox scholarship. False necessities are deconstructed: the sources are neither a priori nor external to the law. Applying the Stufenbau theory to international law, the chapter concludes by sketching out the possibilities of ordering the sources of international law. A structural analysis of the international legal order clears the way for level-​ headed research on this legal order’s daily operations: norm conflict and its application/​interpretation. Jean d’Aspremont’s chapter on ‘Sources in Legal Formalist Theories: The Poor Vehicle of Legal Forms’ is premised on the idea that international lawyers, even those self-​declared anti-​formalists, are continuously engaged with the reinvention of the role of legal forms and that, in their engagement with formalism, international lawyers have continued to give a central role to the sources construed as a vehicle of formalism. It is the object of this chapter to reflect on how sources function as a vehicle of legal forms in international legal thought and practice. It more specifically examines the extent to which the sources of international law are instrumental in the formalization of the determination of the contents of international legal rules, as well as the formalization of the ascertainment of international legal rules. The chapter starts by distinguishing between two types of formalist theories, namely content-determination formalism and law-ascertainment formalism and offers some comparative insights. It then evaluates the extent to which sources contribute to the formalization of content-determination and law-ascertainment in international legal thought and practice. In doing so, this chapter demonstrates that the sources of international law turn out to be a very poor vehicle for formalism and that international lawyers should accordingly cease to think of the sources of international law as conducive to the formalization of international legal argumentation. In his chapter entitled ‘Sources in Legal Formalist Theories: A Formalist Account of the Role of Sources in International Law’, Frederick Schauer claims that the idea of formalism exists in literary and artistic interpretation and designates an approach that takes the text as the exclusive object of interpretation, independent of the creator’s intentions or some readers’ or viewers’ reactions. In legal theory, formalism, similarly, refers to taking the indications of existing law, whether written or unwritten, as presumptive or conclusive, even against arguments from morality or policy that might produce a better outcome on a particular occasion. The same idea applies to legal sources, including the sources of international law, and thus formalism about the sources of international law is an approach that takes the existing catalogue of acceptable sources, wherever that catalogue may come from,

26    the sources of international law: an introduction as presumptively or conclusively exclusive, despite the fact that adding to that list on some occasion might produce a morally or pragmatically superior outcome with respect to that particular controversy or application. Ingo Venzke’s chapter entitled ‘Sources in Interpretation Theories: The International Law-​Making Process’ maintains that it is generally recognized that interpretations do not take meanings from norms but give meanings to them. In this way, the practice of interpretation contributes to the process of international law-​making. The chapter takes as a starting point the understanding of interpretation in international law as an argumentative practice about the meaning of legal norms. But which meaning should interpreters give to a norm? How should they justify their interpretative choices? Turning from the rule of interpretation to the reality of the practice, the chapter further asks: what do interpreters do when they interpret? It draws attention to the power that the interpreters exercise, and to the biases of interpreters and of interpretative communities. In conclusion, as large parts of international law are made by way of interpretation, it is necessary to keep a keen eye on the role of power and rhetoric in that interpretative practice. In his chapter on ‘Sources in Interpretation Theories:  An Interdependent Relationship’, Duncan B.  Hollis examines the relationship between international law’s sources and its theories of interpretation. Challenging assumptions that the two concepts are, at best, casual acquaintances, his chapter reveals and explores a much deeper, interdependent relationship. Sources set the nature and scope of international legal interpretation by delineating its appropriate objects. Interpretation, meanwhile, operates existentially to identify what constitutes the sources of international law in the first place. The two concepts thus appear mutually constitutive across a range of doctrines, theories, and authorities. Understanding these ties may offer a more nuanced image of the current international legal order. At the same time, they highlight future instrumental opportunities where efforts to change one concept might become possible via changes to the other. This chapter concludes with calls for further research on whether and how such changes might occur and asks if international lawyers should embrace (or resist) such a mutually constitutive relationship. In his chapter on ‘Sources in the Meta-​Theory of International Law: Exploring the Hermeneutics, Authority, and Publicness of International Law’, Matthias Goldmann endeavours to identify common assumptions characterizing the sources doctrine in international law. Those are the autonomy of international law from politics, morality, economics, etc.; the focus on binding, enforceable rules; and State consent as the source of legitimacy of international law. Today, each of these assumptions is challenged. To address these challenges, the chapter proposes to further develop the sources theory and elaborate the concept of principles of international law (as they ensure international law’s autonomy), a concept of authority (as non-​binding acts may have similar effects as binding law), and to distinguish international legal

samantha besson and jean d’aspremont    27 rules (or authoritative acts) which require democratic legitimacy from those which do not. In her chapter on ‘Sources in the Meta-​Theory of International Law: Hermeneutical Conversations’, Alexandra Kemmerer claims that a meta-​theoretical approach to sources opens reflexive spaces, situates theories in time and space, and allows for a contextual interpretation of sources. Drawing on the hermeneutic philosophy of Hans-​Georg Gadamer and the writings of his most perceptive readers in international law, the chapter develops a concept of reflexive situatedness prompting a constructive contextualization of sources and their interpreters in our ‘normative pluriverse’ (d’Aspremont). Following the traces of international law’s current ‘turn to interpretation’ and a reading of international law as ‘hermeneutical enterprise’, the chapter’s assessment of the limits and potentials of Gadamerian philosophical hermeneutics prepares the ground for an analysis of the writings of international lawyers who have developed theories of international legal interpretation inspired by his work—​and in particular for a closer look at the writings of Outi Korhonen, linking her concept of situationality to an emphasis on context(s) that engages with the rhetorical dimension of Gadamer’s work. Gadamer’s conversational hermeneutics opens new perspectives for a contextual theory and praxis of international legal interpretation that brings together various disciplinary perspectives and cultural experiences, and thereby allows for a more nuanced and dynamic understanding of sources and their interpreters within their respective interpretative communities. In his chapter on ‘Legal Theory as a Source of International Law:  Institutional Facts and the Identification of International Law’, Iain Scobbie argues that legal theory provides conceptions of the sources of international law that differ according to time and place. The chapter employs Neil MacCormick’s explanation of institutional order to frame the ensuing discussion by arguing that conceptual understandings of law, including international law, are socially constructed. The chapter starts from John Austin’s denial that international law possesses the quality of law because the international society lacks an ultimate sovereign that is superior to States. It further considers the function that sovereignty has played in some explanations of international law and its sources, which raises the significance of State consent. The ana­ lysis then focuses on the paradigm shift that Grotius introduced into natural law, and consequently into international law, by substituting consent for theology as its underpinning explanation. The chapter also considers twentieth-​century transatlantic variants of natural law and examines three influential British theorists—​James Brierly, Gerald Fitzmaurice, and Hersch Lauterpacht—​each of whom relied on natural law to overcome perceived inadequacies of consent-​based positivist theories. Finally, before drawing some, inevitably imperfect, conclusions, the chapter examines the more instrumentalist naturalism of the New Haven School, which endeavoured to ensure the promulgation of American democratic values by emphasizing policy and choice in decision-​making.

28    the sources of international law: an introduction In their chapter on ‘Legal Theory as a Source of International Law:  Doctrine as Constitutive of International Law’, Alain Papaux and Eric Wyler observe that with treaties, customs, general principles, decisions, doctrines, and soft law, we are dealing first and foremost with signs. The very structure of signs is inference. This reveals the necessity of interpreting all sources of law. Because doctrine’s first task is interpretation, its role in understanding law is essential. Law, therefore, should not be conceived as a science; it is concerned with what is just, not what is true. From that follows the importance of auctoritas and dogmatics: law establishes values to orient practice. Centred on this practice, doctrine, which lies at the foundation of modern international law, reveals itself to be savante rather than scientific or theoretical. Scientific and symbolic (activist) doctrines must be distinguished from the ‘doctrine savante’; ‘doctrine savante’ refers to the writings of scholars and practitioners devoted to ordering and criticizing the practice—​including the judicial practice—​of public international law.

Part III The Functions of the Sources of International Law Chapters in Part III (Functions) examine the relationships between the sources of international law and the characteristic features of the international legal order that are, or should be related to international law-​making. Here again, there may be some overlap in issues with chapters in Part II, but the method and the focus are different. The chapters in Part III also provide for the expression of a wider diversity of views than provided in the previous parts. In his chapter on ‘Sources and the Legality and Validity of International Law: What Makes Law “International”?’, Pierre d’Argent argues that, from the perspective of a theory about the sources of international law, what matters is not so much to determine whether international law is really law, but, rather, what makes law ‘international’. Article 38 of the ICJ Statute is revisited in light of this perspective. The chapter also addresses the intriguing phenomenon of the multiple legal character of sources. In their chapter on ‘Sources and the Legality and Validity of International Law: Natural Law as Source of Extra-​Positive Norms’, Mary Ellen O’Connell and Caleb M. Day contend that international law, like all law, can be understood as a hybrid of positive and natural law. Positive law relies on material evidence to support conclusions as to the existence of principles, rules, and processes. Natural law relies on a very different method to explain aspects of law that positivism cannot, including peremptory norms (jus cogens), general principles inherent to law, and legal authority. The history of natural law thought from Ancient Greece to today’s global community reveals three integral elements in the method employed to produce these explanations of extra-​positive features of the law. The method uses reason,

samantha besson and jean d’aspremont    29 reflection on nature, and openness to transcendence. Certain contemporary natural law theorists, concerned about the association of natural law with Christianity, attempt to suppress transcendence from the natural law method, focusing only on reason and nature. Yet, the history of natural law thinking shows that transcendence is integral to the method. History also reveals, however, that religion is not the only avenue to transcendence. Aesthetic theory, for example, invokes the beauty of the natural world and of the arts to provide ‘glimpses of transcendence’. Transcendence completes a natural law method capable of explaining persuasively why law binds in general and why certain principles are superior to positive law. In his chapter on ‘Sources and the Systematicity of International Law: A Philosophical Perspective’, Michael Giudice notes that questions about the systematicity of sources of international law range over a variety of different concerns and issues. What does it mean to say that international law’s sources form a legal system or not? Is there more than one way in which international law’s sources might or might not form a legal system? Must there be an international legal system for there to be sources of international law at all? How are we to distinguish between claims of systematicity which are of a descriptive-​explanatory nature from those that are aspirational, and is there a connection between these two types of questions? His chapter takes up these questions and others from the perspective of analytical legal theory. Michael Giudice argues that while it is common to think about the sources of international law in terms of the idea of legal system, there are certain costs associated with this approach. These costs warrant looking for alternative explanatory tools for understanding the ways in which the sources of international law are (and are not) related. In his chapter on ‘Sources and the Systematicity of International Law:  A  Co-​ Constitutive Relationship?’, Gleider I. Hernández aims to illuminate the role that sources doctrine plays in construing international law as a system, too often taken as an unexplored tenet of faith within the international legal discipline. Moving beyond modelling international law as a system as such, the chapter frames international law’s systemic qualities within the recursive relationship between sources doctrine and debates over international law’s systematicity. Sources doctrine reinforces and buttresses international law’s claim to constitute a legal system; and the legal system demands and requires that legal sources exist within it—​a form of normative closure which constitutes the legal system itself. International law’s systematicity and the doctrine of international legal sources exist in a mutually constitutive relationship, and cannot exist without one another. This recursive relationship privileges unity, coherence, and the existence of a unifying inner logic which transcends mere interstate relations and constitutes a legal structure. In this respect, the social practices of those officials who are part of the institutional workings of the system, and especially those with a law-​applying function, are of heightened relevance in conceiving of international law as a system. Accepting a conception of system as

30    the sources of international law: an introduction rooted in such social dynamics might help the international lawyer to reflect on her position as a professional actor within the system. In her chapter on ‘Sources and the Hierarchy of International Law:  The Place of Peremptory Norms and Article 103 of the UN Charter within the Sources of International Law’, Erika de Wet questions whether there is a hierarchy among the sources of international law and, if so, whether such a hierarchy is important for resolving norm conflicts stemming from the different sources of international law. Her chapter takes a functional approach to hierarchy among sources. It first examines whether the order between the sources listed in Article 38 (1) (c) of the ICJ Statute is an indication of a hierarchy in accordance with the order and form in which the sources are listed or moulded. Thereafter, it examines whether peremptory norms represent a substantive hierarchy, based on the superior nature of the norms in question. It also questions whether peremptory norms can be categorized in accordance with the sources listed in Article 38 (1) (c) of the ICJ Statute, or whether they constitute a separate source in international law. The chapter further engages in a similar analysis of obligations under the United Nations Charter. It concludes that peremptory norms and obligations under the Charter are indicative of a substantive hierarchy in international law. The former is based in customary law, while the latter is treaty-​based. The practical relevance of these hierarchies for norm conflict resolution is, however, limited. Mario Prost’s chapter, entitled Sources and the Hierarchy of International Law:  Source Preferences and Scales of Values’, maintains that the doctrine of sources is constructed around a set of shared intuitions and accepted wisdoms. One of them is that there exists no hierarchy among sources of international law and that these are, to all intents and purposes, of equal rank and status. Sources are said to exist alongside each other in no particular order of pre-​eminence, in a kind of decentralized and pluralistic arrangement where no source ranks higher than the other. This chapter takes a critical look at this ‘non-​hierarchy’ thesis, arguing that it is descriptively problematic as it tends to conceal the fact that international legal actors (States, judges, scholars) constantly establish more or less formalized hierarchies of worth and status among law-​making processes. These are, admittedly, soft and transient hierarchies that very much depend on contexts, circumstances, the identity of the legal subjects, and the projects they pursue. But they are hierarchies nonetheless, inasmuch as they involve a differentiation of sources ‘in a normative light’, i.e. normative judgements in which some sources are deemed superior (good, effective, democratic) and others inferior (bad, inefficient, illegitimate). In his chapter on ‘Sources and the Normativity of International Law:  A  Post-​ Foundational Perspective’, Detlef von Daniels finds that questioning the normativity of the sources of international law inevitably leads into the domain of legal philosophy. For showing that legal philosophy itself is a contested field of approaches, a hermeneutic perspective on the question of normativity is developed that stresses historical and contextual forms of understanding. Incidentally, Kelsen’s theory

samantha besson and jean d’aspremont    31 serves as a switchboard to relate a variety of historical debates to the contemporary discourse in the tradition of analytical jurisprudence. In practical terms, the relevance of this approach is discussed with regard to three contested topics: the status of general principles, soft law, and practical reasoning. The historical and theoretical awareness thus achieved provides reasons to oppose contemporary attempts to moralize the legal point of view. In her chapter entitled ‘Sources and the Normativity of International Law: From Validity to Justification’, Nicole Roughan enquires what role the sources of international law do play in establishing or generating the normativity of international law. While sources of law are typically treated as determinants of the validity of international legal norms, this chapter argues that the normativity of international law is not co-​extensive with the idea of legal validity. Instead, the study of sources and normativity must be, at least in part, about the values that are embodied in or generated through law-​making processes and the role they play in an overall justification for international law. The chapter first develops a series of jurisprudential arguments which treat the normativity of law, including international law, as dependent upon both the procedural and substantive values of its norms. It then turns to international law in particular, arguing that the sources of international law can contribute towards international law’s full normativity only if they carry forward procedural values that respect the autonomy and responsibility of those who are subject to the law. The chapter then concludes with a discussion of the normativity-​generating potential of first treaties and then custom, using the two leading sources of international law as case studies for the deployment of the account of full normativity. Richard Collins’ chapter on ‘Sources and the Legitimate Authority of International Law:  A  Challenge to the “Standard View”?’, is concerned with the relationship between the legitimate authority of international law and the role played by the doctrine of sources. It argues that the kind of formal assessment of legality inherent in the sources doctrine expresses a particular view of the legitimate authority of international law: one grounded in a broadly consensual form of social validation, but which also attempts to mediate the inter-​subjectivity of international society by providing ‘content-​independent’ reasons for the compliance with legal norms. Whilst his aim is not necessarily to defend the coherence of this doctrinal account completely, the author tries to defuse two misleading lines of attack: one based on the vagaries of the processes of customary law formation and ascertainment and the other based upon the exhaustiveness of sources doctrine as traditionally conceived. In his view, both criticisms miss their target by overplaying what is at stake in this view of international law’s legitimate authority. Whilst he therefore defends this doctrinal view to this extent, the author nonetheless shows how a broader theory of the legitimacy of international law—​one which aims wider than the doctrine of sources itself—​will necessarily have to balance content-​dependent and content-​ independent normative evaluation.

32    the sources of international law: an introduction In his chapter on ‘Sources and the Legitimate Authority of International Law: Democratic Legitimacy and the Sources of International Law’, José Luis Martí notes that sources of international law have been widely debated by international law theorists. Whether these sources are legitimate, or not, is another question. The chapter highlights that political philosophers in recent years have been paying growing attention to the legitimacy of international law and international institutions and are asking who has the right to rule and adequate standing to create international laws, and how. This chapter attempts to contribute to this debate in normative political philosophy through the more specific lens of democratic legitimacy. After presenting certain conceptual clarifications, the chapter identifies three basic principles of democratic legitimacy: the principle of ultimate popular control, the principle of democratic equality, and the principle of deliberative contestability, which can be instantiated in six more concrete requirements. The chapter continues by exploring the limitations of two influential views on the democratic legitimacy of international law, one that articulates the legitimate sources based on the principle of State consent, and another that replaces that principle with a focus on practices of deliberative contestability among State and non-​State actors. Finally, the chapter concludes by expressing some scepticism about the degree to which the current system of sources of international law is democratically legitimate. In his chapter on ‘Sources and the Subjects of International Law: A Plurality of Law-​Making Participants’, Robert McCorquodale maintains that States were once considered the sole ‘subjects’ of international law and sources of international law were solely about the actions of States. However, the realities of the international community indicate that there is now a range of participants who are sources of law-​making in international law. This chapter explores the range of participants involved in international law-​making, including corporations, non-​State armed groups, and non-​governmental organizations, in addition to States and international organizations. The approach taken in this chapter in order to determine whether non-​State actors can be included as a source of international law is that of global legal pluralism. Global legal pluralism is the recognition that there are a number of different normative systems that operate and interact at the international level. Such an approach recognizes that there can be multiple actors participating in a legal system to create law, and accepts disparities in powers. This is consistent with an approach to the sources of international law that is made by more participants than States alone. Examples of law-​making by non-​State participants in the international legal community are given in this chapter. In addition, the chapter indicates that the terminology of ‘subjects’ is deeply problematic in international law and should be abandoned. In his chapter on ‘Sources and the Subjects of International Law: The European Union’s Semi-​Autonomous System of Sources’, Bruno de Witte observes that the law of international organizations poses challenging questions for the doctrine of sources of international law, which was originally developed for a world in which

samantha besson and jean d’aspremont    33 only States were envisaged as subjects of international law. His chapter addresses some of those questions by focusing on the most ‘advanced’ international organization, the European Union. The chapter is organized in two main parts. The first one emphasizes the separate character of the EU’s system of sources, whereas the second part notes the various ways in which that system continues to rely on the traditional sources of international law, particularly on the treaty instrument. Together, these two parts aim to justify the choice of the words ‘semi-​autonomous system of sources’ used in the subtitle of the chapter. In his chapter entitled ‘Sources and the Enforcement of International Law: What Norms Do International Law-​Enforcement Bodies Actually Invoke?’, Yuval Shany analyses the sources of law used by international law-​enforcing bodies, thus informing our prophecies about their output. The chapter discusses the practice of international and domestic bodies, that claim to enforce international law, or can be plausibly described as doing just so, and juxtaposes the sources of international law norms on which such bodies rely with the list of international law sources found in Article 38 (1) of the ICJ Statute. It offers in this connection two interrelated surveys: a categorization of the main bodies that engage in international law enforcement, and an overview of the process of law enforcement pertaining to two sets of norms that appear to enjoy exceptional prominence in the world of law enforcement—​ international judgments and resolutions of international organizations. These surveys underlie the contention that Article 38—​the standard reference point for studying the sources of international law—​does not necessarily predict well which international law norms are likely to be invoked in practice by law enforcement bodies. The chapter concludes with a discussion of some of the explanations for the differences between the general list of sources of international law and the sources actually relied upon by international law enforcement bodies. In their chapter on ‘Sources and the Enforcement of International Law: Domestic Courts—​Another Brick in the Wall?’, Eleni Methymaki and Antonios Tzanakopoulos examine the role of domestic courts in the ideal continuum commencing from sources (where the law begins its life) and ultimately ending at the enforcement of the law in a specific case. Where, if anywhere, do they fit in this continuum? Put differently, are domestic court decisions a cause (source) or an effect (enforcement) of international law? The authors argue that the enforcement of international law is reflexive, rather than reactive. Reflexivity is defined as a circular relationship between cause and effect, and there is indeed such a circular relationship—​a ‘feedback loop’—​between the sources of international law and its enforcement: neither of the two can be finally identified as the ultimate cause or the ultimate effect. There is thus no real continuum, with domestic courts occupying this or that position on it. Rather, domestic court decisions are both part of the cause (sources) and of the effect (enforcement) of international law. The enforcement of a rule of law in a specific case constitutes, in accordance with the sources doctrine, yet another brick in the wall of that same, ever-​changing rule. And given the increasingly important

34    the sources of international law: an introduction position that domestic courts are assuming in the enforcement of international law, they become ever more important agents of development of that law, reinforcing their position in the doctrine of sources.

Part IV The Regimes of the Sources of International Law Chapters in Part IV (Regimes) address various questions pertaining to the sources of international law in specific regimes of international law. Thereby they also assess whether the secondary rules of international law-​making are as fragmented as they are sometimes claimed to be. Part IV also includes a chapter on how sources of international law impact the relation between international law and domestic legal orders, such a chapter inevitably coming with a comparative law dimension. The potential correspondence or, on the contrary, lack of correspondence between the arguments made in the chapters in this part and those in the previous ones constitutes one of the interesting features of the Handbook. In her chapter entitled ‘Sources of International Human Rights Law: How General is General International Law?’, Samantha Besson claims that a cursory survey of the practice of international human rights law reveals that its sources differ, at least prima facie, from those foreseen in the general rules of international law (and in particular those listed under Article 38 of the ICJ Statute), on the one hand, and from those practised in other regimes of international law, on the other. This raises the question of the autonomy of international human rights law as a self-​contained regime of international law and, accordingly, that of the ‘generality’ of general international law in respect of sources. Those questions were actually at the heart of intense debates post-​war, and well into the 1980s. Curiously, they no longer seem to be a central concern in international human rights scholarship. The chapter aims to revive this discussion, thereby also contributing hopefully to debates about the legitimacy of international human rights law. There are—​and this is the chapter’s argument—​at least three features of international human rights law that account for their specificities in terms of sources and are reflected thereby: their dual moral and legal nature as rights, and the corresponding objectivity of their sources; their dual domestic and international legality as legal rights, and the corresponding transnationality of their sources; and their universality as moral and legal rights, and the corresponding generality of their sources. Various aspects of these three types of specificities of the sources of international human rights law are discussed in each section. By way of a conclusion, the chapter reverts to the question of the kind and degree of distinctiveness of the sources of international human rights law and draws some implications for the sources of international law in general and what may be coined the ‘general international law of sources’. In his chapter entitled ‘Sources of International Human Rights Law:  Human Rights Treaties’, Bruno Simma investigates the structure of the rights and obligations

samantha besson and jean d’aspremont    35 running within human rights treaties as legal instruments designed for the realization of common humanitarian interests. He does so from a legal positivist point of departure, that is, sine ira et studio. In the first instance, he deconstructs the mantra of the so-​called ‘objective’ human rights treaty obligations. He then analyses the legal position of the individuals whose rights are consecrated in human rights treaties and identifies these rights as genuine treaty entitlements, albeit, strictly legally speaking and in contrast to the views of most writers, possessing a more limited status than the treaty rights belonging to States parties. This is followed by a concise depiction of the specific legal consequences derived from the characteristics of the treaties, focusing on the hotly debated topic of reservations. The author concludes his study by comparing his views with those expressed in Samantha Besson’s chapter on the topic of sources of international human rights law. Raphaël van Steenberghe’s chapter on ‘Sources of International Humanitarian Law and International Criminal Law: Specific Features’ analyses the specific features which characterize the sources of international humanitarian law (IHL) and criminal law (ICL). The first part examines those which are claimed to characterize IHL and ICL sources in relation to the secondary norms regulating the classical sources of international law. It concludes that they must only be seen as specific applications of these secondary norms and not as derogating from them and implying that IHL and ICL amount to special regimes in that regard. The second part examines the specific features of some IHL and ICL sources in relation to the others of the same fields. Particular attention is given to the Rome Statute of the International Criminal Court and the impact of its features on IHL and other ICL sources, as well as to the commitments made by armed groups, whose characteristics make them difficult to classify under any of the classical sources of international law. In general, this chapter shows how all those specific features derive from the particular fundamental principles and evolving concerns of these two fields of international law. In his chapter on ‘Sources of International Humanitarian Law and International Criminal Law: War/Crimes and the Limits of the Doctrine of Sources’, Steven R. Ratner maintains that IHL and ICL cast serious doubt on the traditional doctrine and understanding of sources. Article 38 of the ICJ Statute proves inadequate to describe key modes for prescribing law in these areas, including roles for expert bodies, the special place of nullum crimen sine lege in ICL, and the influence of non-​ State actors such as the International Committee of the Red Cross and non-​State armed groups. International courts are particularly important actors for both areas, despite, or perhaps because of their unprincipled approach to the indicia of custom. More fundamentally, IHL and ICL suggest that sources scholarship should see itself not as determining necessary and sufficient methods for the making of law (let alone a set of methods that applies across all subject areas), but rather as a search for relevant inputs that become indicators of law. Under this view, certain processes are more authoritative than others, but all deserve scrutiny. Moreover, a theory of sources must take account of the purpose of understanding sources, which is to

36    the sources of international law: an introduction promote compliance with rules. Different actors and institutions have different criteria for acceptable sources, a reality that lawyers must accept to avoid talking past the decision-​makers they are trying to persuade. IHL and ICL also shed light on the importance of morality and ethics as inputs to the law-​making process. In her chapter on ‘Sources of International Environmental Law: Formality and Informality in the Dynamic Evolution of International Environmental Law Norms’, Catherine Redgwell considers the applicability to environmental problems of the traditional sources of international law using as the starting point the formal sources enumerated in Article 38 of the ICJ Statute. The discussion points amongst other things to innovative methods of law creation, the dynamic evolution of environmental treaty texts, and the particular role played by soft law in the development and application of international environmental norms. It concludes that, nonetheless, as a branch of general international law, the sources of international environmental law are the same. Drawing on her interactional account of international law, Jutta Brunnée’s chapter on ‘Sources of International Environmental Law: Interactional Law’ begins with a reflection on the concept of ‘sources of law’, which it takes to refer to processes that are shaped by requirements of legality and through which legal norms are made and remade. This alternative understanding of sources does not entail that the law-​making methods listed in Article 38 of the ICJ Statute have ceased to matter in international environmental law—​far from it. The interactional law framework takes seriously what international actors do, both as they continue to rely on sources listed in Article 38, and as they develop new ways of making international law. The chapter, therefore, explores the law-​making processes listed in Article 38 in turn, and then moves on to consider newer processes. The interactional framework and its practice-​based understanding of legality illuminate the existence of resilient and relatively stable law-​making processes, such as treaty-​based and customary law-​making, as well as the emergence of new law-​making processes, such as the various modes of ‘soft’ standard-​setting that have seen a steady rise in international environmental law, and beyond. In his chapter on ‘Sources of International Organizations’ Law:  Reflections on Accountability’, Jan Klabbers aims to reflect on the uncertainties regarding the question why international organizations would be bound by international law. The chapter places these uncertainties in the broader framework of a vague and ill-​defined ‘turn to accountability’, discusses in some detail the 1980 WHO–​Egypt advisory opinion of the ICJ, and reviews several recent attempts to overcome the ‘basis-​of-​ obligation’ problem in the law of international organizations, such as the putative constitutionalization of international law or international organizations, the adoption of accountability models, and the emergence of Global Administrative Law. In his chapter on ‘Sources of International Organizations’ Law:  Why Custom and General Principles are Crucial’, August Reinisch observes that for a considerable period of time, international organizations scholarship was preoccupied

samantha besson and jean d’aspremont    37 with establishing its objects of study, international organizations, as actors enjoying their own international legal personality. With the fulfilment of various, increasing tasks by such organizations, the question has come to the fore to what extent these subjects of international law may become responsible for their actions. This debate has actually overshadowed the more fundamental question of what kind of obligations can be identified as binding upon international organizations. In the author’s view, the latter central question requires one to turn to the sources of international organizations’ law. In his chapter on ‘Sources of International Trade Law: Mantras and Controversies at the World Trade Organization’, Joost Pauwelyn claims that the World Trade Organization (WTO) approach to sources of law is legal positivist, non-​teleological, focused predominantly on WTO covered agreements, explicitly agreed to by WTO members, with heavy reliance on a de facto rule of precedent and an increasing role for non-​binding instruments, with little or no reference to academic writings and a limited role—​essentially one of guiding interpretation of the WTO treaty—​for non-​WTO rules of international law, other than mainly procedural rules of general international law. The WTO’s sources doctrine remains relatively traditional or mainstream. It is difficult to speak of a WTO—​or trade—​specific ‘deviation’ from the general rule of recognition regarding the establishment of sources. At the same time, the WTO experience does have specific features, with a more prominent role for some sources over others and some pushing of the boundaries when it comes to certain less traditional sources of international law such as prior Appellate Body decisions or non-​binding instruments. In his chapter on ‘Sources of International Trade Law: Understanding What the Vienna Convention Says about Identifying and Using “Sources for Treaty Interpretation”’, Donald H. Regan notes that international trade law is overwhelmingly treaty-​based. For practical purposes, the unique traditional ‘source’ of WTO law is the WTO treaty. But treaties require interpretation, and there are many controversial questions about what might be called the ‘sources for treaty interpretation’. What materials can be used to interpret a treaty, and how are they to be used? The standard source for answering these questions, especially in the WTO, is the Vienna Convention on the Law of Treaties (VCLT). This chapter discusses a fundamental, and largely overlooked, question about the structure of the VCLT. What is the rationale of the distinction between Articles 31 and 32 of the VCLT? The answer is central to understanding particular provisions of these Articles, such as 31 (3) (c). It is thus central for the interpretation of trade law, or any other law based in treaties. In his chapter on ‘Sources of International Investment Law: Conceptual Foundations of Unruly Practices’, Jorge E. Viñuales addresses the challenges posed by the practice of international investment law to the conventional theory of the sources of international law. After a brief overview of what is generally understood as the main ‘sources’ of ‘international investment law’, the chapter examines in turn three challenges to this basic understanding, which arise from the need to account

38    the sources of international law: an introduction for the domestic laws governing different aspects of foreign investment transactions, the detailed jurisprudential norms generated by investment tribunals to specify broadly formulated norms, particularly investment treaty provisions, and the norms of general international law expressing the sovereignty of the State. For each category of norms the author selects a number of problems that put the most widely accepted understanding of the sources of international law to the test, and explains why the problems examined, far from mere academic points, have potentially important practical implications. The chapter concludes with some observations on the interactions between practice and the theory of the sources of international law. Stephan W. Schill’s chapter on ‘Sources of International Investment Law: Multilateralization, Arbitral Precedent, Comparativism, Soft Law’ discusses the use of sources of international law in the settlement of disputes arising under bilateral, regional, multilateral investment treaties and investment chapters in free trade agreements, focusing specifically on particularities this field of international law displays in comparison to general international law. It first addresses the importance of bilateral treaties in international investment law and shows that their bilateral form is not opposed to the emergence of a genuinely multilateral regime that behaves as if it was based on multilateral sources; secondly, the pre-​eminent importance arbitral decisions assume in determining and developing the content of rights and obligations in the field; thirdly, the increasing influence of comparative law; and, fourthly, the significance of soft law instruments. It argues that the particular sources mix in international investment law is chiefly connected to the existence of compulsory dispute settlement through investment treaty arbitration. The chapter by Ingrid B. Wuerth on ‘Sources of International Law in Domestic Law: Domestic Constitutional Structure and the Sources of International Law’ takes a new approach to the much-​analysed relationship between domestic and international law. It considers how global changes in domestic constitutional structures have changed the sources of international law. It argues that domestic constitutional structures have changed in similar ways in many countries around the world over the past century, including the rise of judicial review, the growth in legislative power at the expense of the executive power, the rise of the administrative State, and the protection of individual liberties. Treaties, custom, and ‘soft law’ as sources of international law, have each been shaped by these changes, in particular the rise in legislative power for treaties, the rise in legislative and judicial power for custom and general principles, and the rise of the administrative State for soft law. This chapter also considers how each source of international law derives its content from domestic law and is influenced by domestic constitutional structures. It concludes with some normative perspectives on the relationship between each source of international law and changes in domestic constitutional structures. In his chapter on ‘Sources of International Law in Domestic Law: Relationship Between International and Municipal Law Sources’, Cedric Ryngaert maintains that as both municipal and international law use legal norms to regulate social

samantha besson and jean d’aspremont    39 relationships, a space for inter-​systemic interaction between both legal spheres emerges. Municipal legal practice can have an ‘upstream’ impact on the formation of the content of the sources of international law, where these require proof of State practice and/​or opinio juris for valid norms to be generated. In particular, domestic court decisions can have a jurisgenerative effect on customary international law, where they become part of a transnational dialogue between domestic and international courts on questions of international law determination. Admittedly, this dialogical process is hamstrung by the particularities of domestic law and the hard-​ to-​eradicate selection bias of international law-​appliers. However, a more objective comparative international law process can be grounded that is geared to effective problem-​solving guided by the persuasiveness and quality of reasoning of municipal court decisions relevant to international law.

Part   I

THE HISTORIES OF THE SOURCES OF INTERNATIONAL LAW

Section  I

SOURCES IN THE SCHOLASTIC LEGACY

Chapter 1

SOURCES IN THE SCHOLASTIC LEGACY IUS NATURAE AND IUS GENTIUM REVISITED BY THEOLOGIANS

Peter Haggenmacher

Whereas the scholastics played a decisive part in the development of jurisprudence in general, their specific contribution to international law and its sources is much less conspicuous. The most obvious reason for this is that international law hardly existed as a separate legal discipline before the middle of the seventeenth century, when the creative impetus of scholasticism was largely spent. Moreover, the very notion of sources of law as we know it took even longer to emerge; it was fully established in the field of international law only in the nineteenth century. For these two reasons an enquiry into the scholastic conception of the sources of international law threatens to be an exercise in anachronism. This calls for some preliminary observations. * * * In the first place such an enquiry obviously presupposes that international law exists both in theory and in practice as a coherent corpus of legal principles and rules applying to a given community of subjects in their mutual dealings. Such a system can first be made out in Richard Zouche’s Iuris et iudicii fecialis explicatio of 1650, which significantly bears in its subtitle the expression ius inter gentes and has been rightly hailed as the ‘first manual comprising the entire law of nations’ by

46    sources in the scholastic legacy Dietrich von Ompteda, the author in 1785 of a repertory of the writings on that relatively recent ‘science’.1 Zouche’s manual was indeed first to encompass all the various strands of the specific ‘relationship that takes place between different princes and peoples’, that is, between a determined class of collective entities confronting each other in Hobbesian manner as so many individual persons.2 By the same token, Zouche defines the categories of rules that apply to this particular order of legal subjects in a way that looks familiar even to a modern eye: common practices, on the one hand, deriving either from natural principles or from general consent and, on the other hand, particular rules agreed upon between single nations by way of treaties and alliances.3 In fact none of the materials gathered by Zouche were properly new, but up to his time they had been dealt with under other headings as separate, self-​contained subject matters. Foremost among these figured the law of war, which had since the thirteenth century been developed by canonists, legists, and theologians. Quite as important, though less conspicuous, was the law of embassies, which also had grown into a genre of its own. In both fields there existed a long-​standing European-​wide practice as well as a growing amount of literature; and both were made the subject of extensive monographs in the late sixteenth century, by Alberico Gentili among others, a predecessor of Zouche in the chair of civil law at Oxford.4 Shortly afterwards, Hugo Grotius was in turn to write his monumental treatise on the law of war and restoration of peace.5 Zouche mentions the two authors as his ‘coryphaei’.6 The essential novelty of his own manual lay in its widened systemic approach, which included these formerly independent topics—​and several others such as treaties—​ into a single common structure rigorously built on the two simple criteria of its legal subjects and sources of law. While he had neatly detached his ius inter gentes from the time-​honoured though ambiguous Roman notion of ius gentium,7 it was nevertheless the latter expression that was soon after to become—​with its vernacular equivalents such as Law of Nations, Droit des Gens, or Völkerrecht—​the normal designation of that newly charted, exclusively interstate legal discipline. 1   Dietrich H. L. von Ompteda, Litteratur des gesammten sowohl natürlichen als positiven Völkerrechts (Regensburg: J. L. Montags Erben, 1785), para. 64, p. 252. 2  Zouche calls it ʻCommunionem, ​quae inter diversos Principes aut Populos interceditʼ. Richard Zouche, Iuris et iudicii fecialis, sive iuris inter gentes, et quaestionum de eodem explicatio (Oxford: H. Hall, 1650), Ad lectorem. The author refers explicitly to Hobbes at part I, sect. I, para. 2 (footnotes), p. 3; he probably had in mind De Cive, ch. XIV, para. IV. Zouche’s name is also spelt Zouch. 3  ‘[P]raeter mores communes pro jure etiam inter Gentes habendum est, in quod gentes singulae cum singulis inter se consentiunt, utpote per pacta, conventiones & Foedera.’ Zouche, Iuris fecialis explicatio, part I, sect. I, para. 1, p. 2. 4   Albericus Gentilis, De legationibus libri tres (1585) (Hanau: Apud Guilielmum Antonium, 1594); De iure belli libri tres (1598) (Hanau: Apud Haeredes Guilielmi Antonii, 1612). The latter work was first published in 1588–​9 in three separate, less elaborate Commentationes. 5   Hugo Grotius, De iure belli ac pacis libri tres (1625), ed. B. J. A. De Kanter-​van Hettinga Tromp (Aalen: Scientia Verlag, 1993). 6 7  Zouche, Iuris fecialis explicatio, Ad lectorem.   ibid., part I, sect. I, para. 2, p. 2.

peter haggenmacher   47 This is not to say of course that international law came to life only with Zouche. There were plenty of international relations and situations that had generated practices and had called for corresponding legal regulations ever since Antiquity. During the late Middle Ages and Early Modern times—​which was the heyday of scholasticism—​such regulations were mostly drawn from civil and canon law texts through the creative interpretation by their glossators and commentators. Now and then in the sixteenth century we meet with a vague intuition that these questions belonged to a higher legal sphere and were therefore somehow connected by overarching principles detached from single polities, governing them, as it were, from without and above. Gentili, as Francisco de Vitoria before him, testified to such glimpses, and several passages in Grotius’ treatise betray a similar insight. And yet it is only with Zouche’s—​otherwise rather down-​to-​earth and plain—​Explicatio that this superior sphere is consciously posited and articulated as a comprehensive ‘law between nations’ governing the whole ambit of interstate relations in peace and in war. Only at this stage does it really make sense to raise the question of the sources of international law: it is above all a doctrinal question which presupposes a clear awareness of the new legal discipline with its own inner logic. * * * At this juncture, however, we run into yet another difficulty, for, while we instinctively read Zouche’s summary indications on the relevant categories of rules as setting out the ‘sources’ of his ius inter gentes, he does not himself use the word ‘fontes’ as we should normally expect. In fact this is hardly surprising, since the very notion of source of law, however familiar and elementary it may seem to us, had no place as yet in the legal discourse of the time. In its origins it was not a term of art at all among professional jurists, but at best a rhetorical figure of speech in legal philosophy. Cicero had first used the source metaphor (fons legum et iuris) in his dialogue De legibus, where he was enquiring into the true legal order of the commonwealth he had devised in the companion dialogue De republica. To that effect he endeavoured to retrace the original fount of law (iuris ortum a fonte repetamus) ‘in the innermost recesses of philosophy’, and came to retrieve those iuris principia in nature herself.8 The metaphor recurs almost axiomatically in his last philosophical tractate, De officiis: ‘since nature is the source of the legal order (quoniam iuris natura fons sit), it is not in accordance with nature that anyone [in a real estate transaction] should take advantage of his neighbour’s ignorance’.9 Obviously there is no question here of the formal sources of law in our modern understanding. Rather, Cicero tries to identify the ultimate foundation of law and justice (as parts of a general moral and political order) and places it in rational nature which he believes, in a Stoic vein, to 8  Cicero, De legibus, ed. Georges de Plinval (Paris: Société d’édition ‘Les Belles Lettres’, 1968), bk I, V (15–​17)–​VI (18–​20), pp. 9–​12. 9  Cicero, De officiis, ed. Walter Miller (Cambridge: Harvard University Press, 1956), bk III, XVII (72), p. 342.

48    sources in the scholastic legacy be shared by humans and gods alike and to form the very basis of society. The metaphor fons iuris plainly has no technical import; it is therefore easily substituted by other expressions like iuris ortus, stirps, principium, or exordium, all of which carry the same idea of marking the origin and true basis of law.10 Cicero’s reflections are purposely in a philosophical key, clearly removed from the preoccupations of professional jurisconsults and practitioners. The latter would hardly have cared about those remote principles of law. It is no surprise therefore that the expression ‘fons iuris’ occurs nowhere in the Roman legal texts compiled in emperor Justinian’s Digest or in his Institutes. Instead of enumerating the ‘sources’ of law as we habitually do, the Roman jurists would rather speak of the ‘divisions’, or ‘positions’, or ‘species’ into which the law is ‘distributed’, or of the ‘parts’, ‘positions’, or ‘portions’ of which it ‘consists’.11 Cicero himself had done so now and then in his didactic writings on rhetoric when he examined the types of legal rules that could be invoked by the orator.12 This was the normal, professional view of the matter. It envisages the law simply as an existing corpus that can be broken down into its several components without asking about the law-​creating principles whence they ‘flow’ as from so many ‘sources’. At best such an approach is suggested in a few places by verbs like ‘flow’ or ‘come’ from. Thus civil law is said by Papinianus to ‘come from laws, plebiscites, senatus consulta, imperial decrees, and authoritative statements of jurists’, whereas honorary law was ‘introduced’ by way of praetorian edicts.13 To us these would be as many ‘sources’ of Roman law. Not so for the Romans, which is eloquently shown by the fact that in Justinian’s rendering of Papinianus’ statement, the verb est is substituted for venit, which suggests a simple equivalence instead of a derivation.14 The source metaphor becomes more apparent in some passages retracing the historical origin of the civil law: it is said to be divided into written and unwritten law because in its beginnings it seems to have ‘flown’ from the institutions of the two cities of Athens and Sparta;15 or again it is declared to have initially ‘flown’ from the Twelve Tables (ca. 450 bc);16 in Livy’s well-​known phrase the Twelve Tables were indeed considered as fons omnis publici privatique iuris.17 Yet none of these passages fully conveys our  Cicero, De legibus, bk I, VI (18–​20), pp. 9–​12.   Lanfranco Mossini, ‘Fonti del diritto. Contributo alla storia di una metafora giuridica’, Studi Senesi, 3rd series, 11 (1962): 139–​96, 178–​93. I have drawn heavily on this most enlightening study. 12   See e.g., Cicero, De inventione rhetorica, bk II, 65, in Opera Omnia, ed. Dionysius Lambinus (Geneva: Iacobus Stoer, 1624), p. 63. 13  Iustinianus, Digesta, ed. Theodor Mommsen and Paul Krueger (Berlin: Apud Weidmannos, 1908), 1, 1, 7. 14  Iustinianus, Institutiones, ed. Paul Krueger (Berlin: Apud Weidmannos, 1908), 1, 2, 3. 15 16   ibid., 1, 2, 10.  Iustinianus, Digesta, 1, 2, 2, 6. 17   Titus Livius, Historiarum ab Urbe condita libri, qui supersunt omnes, bk III, ch. 34, p. 6; ed. Arn. Drakenborch (Stuttgart: Ex Typographia Societatis Wuertenbergica, 1821–​1828), tomus 2, pars 1, p. 284. To be precise, Livy says this of the first ten Tables, which were adopted before the two last ones were devised by a new decemviral commission, in order ‘to complete as it were the whole body of Roman law’. 10 11

peter haggenmacher   49 notion of sources of law. The nearest we get to it is with the iuris constituendi viae mentioned by Pomponius in his historical sketch of the civil law:18 these ‘ways of establishing the law’ do indeed correspond to the law-​creating procedures which are (somewhat inadequately) meant by the ‘sources of law’ in their formal and technical sense. Yet, in spite of these occasional hints, our conception of the legal order as deriving from such sources remains foreign to, or at least marginal in, Roman legal thinking. Instead of a theory of sources, there is at most an enumeration of applicable categories of law. The medieval Romanists in their turn had no reason to dwell on the ‘sources’ of the resuscitated law they were studying. First to revive the Ciceronian metaphor seem to have been some sixteenth-​century humanist jurists who, feeling freer with regard to the Roman texts, happened to include literary works into their analyses. Thus François Connan, at the beginning of his Commentaries on Civil Law, posthumously published in 1553, locates the basis of law in rational human mind, and hence in human being itself (fontem ipsum iuris a nobis ipsis sumimus, aut potius ipsi nos sumus), its ultimate origin being God, whom he declares to be fons totius iuris et aequitatis, ‘whence all the laws and institutions flow into this human society’.19 In the chapter dealing with the ‘true understanding of the law of nature and nations’ he reproaches the Roman jurisconsults with having merely pointed out desultorily the sources of law (cum satis habuissent iuris fontes tanquam digito ostendisse).20 Here the expression fontes iuris appears in the plural and applies to what the Romans had called partes iuris; which is more or less the way in which we nowadays use the expression ‘sources of law’. Connan was doubtless among the first to do so. We meet the metaphor again three-​quarters of a century later in Hugo Grotius’ treatise on the law of war and peace. It occurs several times in the singular in its famous Prolegomena;21 but Grotius most importantly uses it to mark the transition between the first chapter (where he sets out the various meanings and types of ius involved in his work) and chapter II (where he starts with its proper subject matter, the law of war): ‘Having examined the sources of the law (Visis fontibus iuris), let us come to the first and most general question, which is whether any war can be just, or whether it is ever allowed to make war.’22 Grotius certainly knew the expression from Cicero; but his plural fontes iuris could indicate that he also had culled it from Connan’s Commentariis, which counted among his earliest legal readings. He even had an additional reason to use it in this way, for instead of commenting on a well-​ established discipline like civil law he saw himself as delineating an ill-​explored

 Iustinianus, Digesta, 1, 2, 2.   Franciscus Connanus, Commentarii iuris civilis (Paris: Iacobus Kerver, 1553), bk I, ch. I, foll. 4r and 6v. 20   ibid., bk I, ch. 6, fol. 18r. 21  Grotius, De iure belli ac pacis, Prolegomena, 8, p. 9, and 15, p. 11. 22   ibid., bk I, ch. II, para. I (1), p. 48. 18

19

50    sources in the scholastic legacy field wholly governed by unwritten legal norms, the very existence of which was disputed. However that may be, it was probably through his authoritative treatise that what had still remained with him a simple metaphor slowly crept into the language of German publicists and Pandectists as a technical term. It is clearly used as such in Johann Jacob Moser’s compendia on German public law (1731) and on the law of nations (1750/​1752).23 The same is true of Johann August Hellfeld’s essay of 1743 On the Sources of Law which are Relied upon by the Illustrious.24 The concept of sources figures neither in Wolff ’s Jus Gentium (1749) nor in Vattel’s Droit des Gens (1758), but Ompteda uses it in his Litteratur des Völkerrechts in 1785.25 Only in the nineteenth century does the notion become firmly rooted in German and Anglo-​Saxon treatises on what was increasingly named ‘International Law’. * * * All this is hardly reassuring when one turns to the scholastics and tries to assess their possible contribution to defining international law and its sources. Indeed, for the reasons just mentioned, the subject simply did not exist during the Middle Ages. Several theologians did, however, pay some attention to what were, centuries later, to become the core elements of the nascent discipline of international law; that is, natural law and the law of nations. Thomas Aquinas especially discussed both concepts in his Summa theologiae, in purely abstract terms as parts of a general system of law, without any ‘internationalist’ implications.26 Only in Early Modern times would these potentialities slowly come to the fore, owing to the Thomistic renascence brought about by the so-​called second scholasticism in sixteenth-​century Spain. Its centre of radiation was the University of Salamanca, where the Dominican Francisco de Vitoria in the 1520s initiated a new way of teaching moral theology on the basis of Aquinas’ Summa theologiae, which had shortly before been rejuvenated 23   Johann Jacob Moser, Compendium juris publici moderni regni Germanici, Oder Grund-​Riss der heutigen Staats-​Verfassung des Teutschen Reichs (1731) (Tübingen: Johann Georg Cotta, 1742), bk I, ch. 2–​8, pp. 12–​57; Grund-​Sätze des jetzt-​üblichen Europäischen Völker-​Rechts in Fridens-​Zeiten (Hanau, 1750), Introduction, para. 48, p. 12. 24   Johann August Hellfeld, De fontibus iuris quo Illustres utuntur (Jena: Joh. Adam Melchior, 1743–​1753). The essay was intended as a preface to Burkhard G. Struv’s Iurisprudentia heroica, seu ius quo Illustres utuntur privatum, which was published posthumously by Hellfeld, his son-​in-​law. See also Ompteda, Litteratur, para. 82, pp. 302–​6. Whereas Struv’s work confines itself to private law relationships of the Illustres (i.e. sovereigns and other rulers), Hellfeld’s preface also includes their public law relationships, and constitutes in fact an exposition of the sources of the law of nations in general. 25  Ompteda, Litteratur, para. 2, p. 8, and para. 4, p. 13. Sometimes he uses, instead of Quellen, the term Arten (i.e. kinds), as at para. 5, p. 16, and para. 7, p. 20, both terms being obviously deemed equivalent. At para. 13, p. 37, he distinguishes, as Moser had done in his German public law compendium, Hauptquellen (‘reason, usage, conventions’) and Nebenquellen (‘natural law, state law, history, statistics, politics, etc.’), the latter being ‘more exactly auxiliary means’ (Hülfsmittel). This goes some way towards the modern distinction between ‘formal’ and ‘material’ sources. 26   For Aquinas’ keen interest in law in spite of papal animosity against Roman law, see B. C. Kuhlmann, Der Gesetzesbegriff beim Heiligen Thomas von Aquin im Lichte des Rechtsstudiums seiner Zeit (Bonn: Peter Hanstein, 1912).

peter haggenmacher   51 by Cardinal Cajetanus’ authoritative commentaries. Vitoria’s teaching produced a whole breed of teólogos-​juristas—​mainly Dominicans and later Jesuits—​who were intensely interested in legal philosophy. The second part of Aquinas’ Summa offered them ample food for their disquisitions on law and justice. This was the framework in which the concepts of ius naturae and ius gentium came to be examined by the late scholastics in the wake of their medieval predecessors. Even without naming them sources of law, it was in fact as such that they were to analyse both notions. While they were distinct by their origins, both concepts had a long and tortuous, partly intertwined genealogy, reaching back to classical Antiquity. The idea of natural law originated in Greek philosophy and was carried over to Roman law mostly by the teaching of rhetoric; in due course it was taken up by the Church fathers and much later by the schoolmen. Conversely, the law of nations was from its inception a genuinely legal category created by Roman jurists and was only later enriched with quasi-​philosophical overtones, owing to its identification by some authors with natural law. Both notions came to figure side by side in the introductory titles of emperor Justinian’s Roman law compilations (ad 533), as well as in the Etymologies of Isidore of Seville (ca. 630), which were in turn quoted in Gratian’s Decretum (ca. 1140), the cornerstone of canon law. * * * Natural law by itself has no vocation to govern properly international relationships. In its various historical expressions it addresses individuals, not political entities (except by analogy, if these are personified). On the other hand, however, natural law transcends the limits of national legal orders, since it extends by definition to the whole of mankind; at least in that sense it can be said to apply transnationally and to be common to all nations. This is indeed how Isidore of Seville explained the concept in his widely authoritative encyclopaedia:  ‘Natural law is common to all nations, being followed everywhere by nature’s impulse, not by dint of institution.’27 Isidore’s explanation hinges on the etymological link between naturae instinctus and omnes nationes, both words deriving from the verb nasci, i.e. to be born. Natural law is thus deemed to have arisen with humanity itself and therefore to constitute an objective normative standard of universal validity. Obviously this is why, almost a thousand years after Isidore, the Spanish scholastics and Grotius himself would consider natural law as an indispensable basis of their legal systems supposed to span the whole world (totum orbem, in Francisco de Vitoria’s parlance). It was over a thousand years before Isidore’s Etymologies that Greek philosophers had set to pondering on the idea of a law grounded in nature. Positing nature, and human nature in particular, as a formal source of law—​as Grotius explicitly did when he called human nature the ‘mother’ of natural law28—​is bound to seem problematic to our modern mind. All we would agree to, with contemporary natural 27   Isidorus Hispalensis episcopus, Etymologiarum sive originum libri XX, ed. W. M. Lindsay (Oxford: Clarendon Press, 1911), bk V, para. IV, 1 (unpaginated). 28  Grotius, De iure belli ac pacis, Prolegomena, 16, p. 12.

52    sources in the scholastic legacy sciences, is to apply the term ‘law’ metaphorically to observable physical processes and regularities by calling them ‘natural laws’ in a purely factual sense. Natural law in a normative sense supposes a pre-​Galilean conception of nature and cosmos, such as they were first developed by the early Greek philosophers on the Ionian coast and in Southern Italy.29 Rather than being induced by methodical experimentation and scientific investigation, this view of nature proceeded from random observations, quasi-​poetical intuitions, sweeping generalizations, and metaphysical speculations. This is why it lent itself not only to factual statements but also to normative conclusions. It was brought to maturity by Greek idealism, especially with Aristotle’s teleological conception of nature, and was infused with an almost mystical fervour by the Stoics. ‘Living in agreement with nature’ was their paramount maxim. Nature to them meant both the individual rational constitution of man and the rational texture of the universe which was governed by an immanent cosmic law identified with Zeus; they clearly considered it as a theological as much as a physical reality.30 It was mainly Cicero who—​without being himself properly a Stoic—​transplanted this conception to Latinity and in typically Roman fashion made it palatable to lawyers by imbuing it with a legal tinge. In his above-​mentioned dialogue De legibus he extolled this law as ‘something eternal, ruling the whole world’, and as ‘supreme reason, implanted in nature, ordaining what ought to be done and forbidding the contrary’.31 Earlier on, in his De republica, he had already identified this vera lex with recta ratio and praised it as ‘conforming to nature, spread in all beings, firm and everlasting’, and as ‘governing all nations in all times’.32 Right reason is its spring of validity, pervading men and gods alike, enclosing them all in a legal community, so that ‘this whole world can be regarded as one single state common to the gods and to men’.33 Reason was thus the dominating principle governing Greek and Roman natural law; will was left at best with an ancillary part. But with the rise of Christianity the role of will was fundamentally reconsidered and steadily enhanced against reason. The transcendent, personal Biblical god was indeed wholly different   See in general W. K. C. Guthrie, A History of Greek Philosophy. I: The Earlier Presocratics and the Pythagorians (Cambridge: Cambridge University Press, 1987), esp. pp. 82–​3 and 206–​12. On the opposition between nomos (as purely conventional, artificially imposed rule) and physis (the true nature of things) highlighted by the sophists, see Felix Heinimann, Nomos und Physis. Herkunft und Bedeutung einer Antithese im griechischen Denken des 5. Jahrhunderts (Basel: Friedrich Reinhardt Verlag, 1945), esp. pp. 110–​62. See also Hans Erich Stier, ‘Nomos Basileus’, Philologus 83 (1928): 225–​58, 244–​50. 30   Antony Long and David Sedley, The Hellenistic Philosophers (Cambridge: Cambridge University Press, 1987), vol. I, pp. 266–​437. See also Hans Diller, ‘Der griechische Naturbegriff ’, Neue Jahrbücher für Antike und deutsche Bildung 2 (1939): 241–​57. 31  Cicero, De legibus, bk II, IV (8), p. 42, and bk I, VI (18), p. 11. 32  Cicero, De republica, ed. Charles Appuhn (Paris: Editions Garnier Frères, 1954), bk III, ch. XXII, p. 162. 33  Cicero, De legibus, bk I, VII (22), p. 13. 29

peter haggenmacher   53 from the immanent divine logos of the Stoics. In spite of some affinities possibly owed to the Semitic background of their founders, there was a far cry from Stoic providence and fatum to Paulinian and Augustinian predestination. God’s absolutely free will, unbound by any sort of outward constraint, rational or otherwise, became the exclusive source of good and evil. In any event, an ontologically rooted natural law hardly made sense with human nature corrupted since the Fall of man. Instead, revealed law had to step in, pending man’s restoration through divine grace.34 Natural law was not totally discarded for all that, but ever since patristic times it tended to be identified with revealed divine law. We meet with this equation at the very beginning of Gratian’s Decretum: ‘Natural law is what is contained in [Mosaic] Law and in the Gospel.’35 Therefore ‘natural law commands nothing but what God wants to be done and forbids nothing but what God prohibits’.36 Although Gratian’s Decretum was in the first place a legal treatise, and indeed the basic manual of canon law, it was relevant also to theologians, owing to the mass of patristic materials gathered in it. But the theologians soon were offered their own textbook with Peter Lombard’s Liber sententiarum (ca. 1150), which was equally stuffed with patristic excerpts. Among them was a reference to Augustine’s tract against the Manicheans in which he characterized sin as ‘any infringement of eternal law, by deed, word, or intent’, eternal law being defined as ‘divine reason and the will of God enjoining to maintain the natural order and forbidding to disturb it’.37 The Stoic notion of eternal law, closely linked up with natural law, which is but an expression of it, figures here as a yardstick for sin. We shall come back to it in a moment; it suffices at this stage to note that, on the threshold of medieval scholasticism, reason and will both held a comparable share in the validity of natural law. Their possible conflict had remained latent up to that juncture. This delicate balance was disrupted a century later with the Aristotelian revival initiated by the Dominican Albert the Great in the natural sciences and pursued in moral theology by his disciple Thomas Aquinas. Unlike Gratian, Aquinas sharply dissociated natural law from divine law. Both are emanations of God’s eternal law, the latter (aiming at man’s supernatural destination) by revelation, the former 34   Felix Flückiger, Geschichte des Naturrechtes (Zollikon-​Zürich: Evangelischer Verlag, 1954), vol. I, pp. 285–​359. 35  Gratianus, Decretum magistri Gratiani, ed. Emil Friedberg (Leipzig: Tauchnitz, 1879), part I, distinctio I, i. pr., col. 1. 36   ibid., distinctio IX, dictum post can. 11, col. 18. 37   The passage reads thus: ‘Ergo peccatum est, factum vel dictum vel concupitum aliquid contra aeternam legem. Lex vero aeterna est, ratio divina vel voluntas Dei ordinem naturalem conservari iubens, perturbari vetans.ʼ Aurelius Augustinus, Contra Faustum manichaeum libri triginta tres (ca. 400), bk XXII, ch. 27, ed. J.-​P. Migne, Patrologiae cursus completus, Series Latina (Paris: Apud J.-​P. Migne, 1865), vol. 42, col. 418. Peter Lombard reproduces (approximately) only the first sentence; see Liber sententiarum (Basel: Nicolaus Kesler, 1492), bk II, distinctio XXXV (unpaginated). But in subsequent discussions both sentences were taken into consideration; see below, nn. 42 and 43.

54    sources in the scholastic legacy (aiming at man’s natural end) through the natural order inherent in God’s creation.38 Acting in accordance with natural law is man’s specific way, as a rational creature, to participate in eternal law.39 In Aquinas’ view, law (of whatever kind) is indeed essentially a product of reason, will being only a subservient agent.40 In line with Greek intellectualism, Aquinas thus re-​established not only the predominance of reason over will, but also the ontological substratum of natural law. Aquinas’ natural law, based as it was on a teleological conception of nature, was soon challenged by the Franciscan John Duns Scotus and utterly shattered by his fellow friar William of Ockham. In line with early Christian authors, divine will again became the fountain-​head of ethics and law; totally free in its determinations, unhampered by any rationalistic eternal law, divine will and love were declared the exclusive source of moral values. Good and evil, therefore, are not inherent in nature but freely decreed by God. Ockham would even go as far as to admit the possibility of God bidding man to hate Him, which had been the only limit Scotus had recognized to divine omnipotence. Strictly speaking the very idea of natural law was thereby abandoned; positive law, divine or human, had to take its place, and it is only by reference to the highest divine injunctions—​the first Table of the Decalogue—​that Scotus nevertheless acknowledged a sort of ‘consonant’ natural social order.41 Ockham’s hyperbolical positions in defence of absolute divine freedom called forth objections even within what was henceforth called via moderna, i.e. nominalism, as against the more traditional realism of Aquinas and Scotus. Such was the case in particular with the Augustinian Gregory of Rimini discussing the concept of sin with reference to Augustine’s above-​mentioned sentence quoted by Peter Lombard. A  human action is sinful, Gregory asserts, when it infringes not only divine reason but right reason in general. Recta ratio thus becomes an absolute normative standard obliging man ‘even if by impossibility divine reason or God did not exist’.42 Although the rule deduced by right reason is only a lex indicativa (as being inferred from statements in the indicative mode), it is not less mandatory than the lex imperativa directly manifesting God’s explicit command: both types of laws are declared to entail sin in case of transgression.43

38   Thomas Aquinas, Summa theologiae (1265–​1273) (Alba-​Rome: Editiones Paulinae, 1962), Ia IIae, qu. 91, art. 4, pp. 944–​5. 39 40   ibid., Ia IIae, qu. 91, art. 2, pp. 942–​3.   ibid., Ia IIae, qu. 90, art. 1, pp. 939–​40. 41   Ioannes Duns Scotus, Quaestiones tertii voluminis scripti oxoniensis super sententias (ca. 1303), ed. Salvator Bartolucius (Venice: Apud Haeredes Melchioris Sessae, 1580), dist. 37, qu. unica, 336–​42. See also Günter Stratenwerth, Die Naturrechtslehre des Johannes Duns Scotus (Göttingen: Vandenhoek und Ruprecht, 1951), pp. 21–​59, 73–​94, and Hans Welzel, Naturrecht und materiale Gerechtigkeit, 4th edn (Göttingen: Vandenhoek und Ruprecht, 1962), pp. 66–​89. 42  Gregorius Ariminensis, Super secundo sententiarum (1344), ed. Montefalconius Augustinus (Venice: Luceantonius de Giunta, 1522), dist. 34–​7, qu. I, art. 2, fol. 118v (J). 43   ibid., dist. 34–​7, qu. I, art. 2, coroll. 2, fol. 118v (O)–​119r (H).

peter haggenmacher   55 What was at stake beyond that theological debate on sin is the very nature of law: does it necessarily presuppose a command expressed by a superior—​as John Austin would much later maintain in the steps of Hobbes—​or are there objective, rationally ascertainable moral values generating legal obligations by themselves? The debate was continued by other medieval schoolmen such as Jean Gerson and Gabriel Biel, and it was resumed by the Spanish scholastics up to the time of Grotius.44 While it never quite lost its theological flavour, it more and more turned into a problem of legal philosophy, especially with the Thomists of the School of Salamanca. Basically, they adhered to Aquinas’ intellectualist position, recognizing moral values inherent in human actions:  proprietates et inclinationes naturales, in Francisco de Vitoria’s words;45 and yet they were not ready, for all that, to accept ‘Gregory’s fancies’,46 and considered therefore that right reason had to be supplemented by God’s command to make up the full legal validity of natural law. Such compromise formulas combining the rival principles of reason and will were increasingly favoured by the Spanish Dominicans and Jesuits.47 A prominent example figures in Francisco Suárez’s legal treatise De legibus ac Deo legislatore published in 1612: a divine command is required for natural law to be legally binding; yet this command cannot but conform to the intrinsic moral value of the actions concerned, as implanted by God himself in his creation and revealed by right reason.48 This was also in substance Grotius’ position in his well-​known definition of natural law, except that the terms are reversed: ‘Natural law is an injunction of right reason indicating that an action, by its concordance or discordance with rational nature itself, involves either moral baseness or moral necessity, and is in consequence either forbidden or commanded by God, the author of nature.’49 That definition is usually taken to lie wholly on the intellectualistic side. Coming as it does from an ‘enlightened’ Protestant, Grotius’ formula is therefore seen as the critical point where ‘modern’ natural law gets freed from its scholastic shackles. This ‘secularizing’ interpretation seems in tune with another no less emblematic passage affirming the validity of natural law ‘even if we were to grant that God does not exist’.50 In fact, this ‘blasphemous supposition’ is but a late echo to the speculative experiment of Gregory of Rimini. Grotius is far from expelling God from natural law, as the context amply shows. All he does in both passages is to contrast natural 44   Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Paris:  Presses Universitaires de France, 1983), pp. 484–​5, 489–​96. 45   Franciscus de Vitoria, De homicidio, 4, in Obras de Francisco de Vitoria. Relecciones teológicas, ed. Teófilo Urdánoz (Madrid: Biblioteca de Autores Cristianos, 1960), p. 1099. 46  ‘. . . relicta imaginatione Gregorii . . . ’. Vitoria, De eo ad quod tenetur homo cum primum venit ad usum rationis, 10, in Obras, p. 1354. 47  Haggenmacher, Grotius, pp. 489–​95. 48   Franciscus Suárez, De legibus ac Deo legislatore (Coimbra: Didacus Gomez de Loureyro, 1612), bk II, ch. 5–​6, pp. 115–​29. 49  Grotius, De iure belli ac pacis, bk I, ch.I, para. X (1), p. 34. 50   ibid., Prolegomena, 11, p. 10.

56    sources in the scholastic legacy law with divine law, just as Aquinas and his sixteenth-​century followers had done, in order to highlight their respective properties. Whereas revealed divine law proceeds entirely from God’s free will, which is therefore its sole source of validity, natural law rests on rational human nature in the first place, but also on concomitant divine will inasmuch as God is the creator of nature and the author of human rationality. This is why reason is indeed the autonomous basis of natural law, but the latter’s full normative status remains at least indirectly predicated on divine will.51 Grotius is here much less ‘modern’ than he is usually proclaimed to be. Though a Protestant and a humanist to the marrow, he was a close relative of the Spanish scholastics with respect to the foundations and structural features of his legal system.52 Natural law was its ultimate basis, yet, while Grotius stressed its objective rational aspects, its discrete link with divine will did not make it any less acceptable to the opposing religious camps of his day. * * * The other pillar of emerging international law, ius gentium, presented its own ancestry and difficulties. It was a somewhat ambiguous notion, fraught with divergent connotations which entailed protracted debates as to its true nature. From its origins in the third century bc, it carried an international dimension with it, inasmuch as it had to do with relationships between Roman citizens and foreigners. In the writings of the jurisconsults these relationships appear sometimes (in modern terms) as a common private law under the jurisdiction of the praetor peregrinus, sometimes as public law involving foreign nations, for example in the guise of diplomatic envoys. This latter international character, which had originally been associated with the ius fetiale, was particularly vivid among historians such as Livy and Sallustius.53 Apart from the vagueness as to the substance of the ius gentium, there was yet another ambivalence concerning (again in modern language) its status as a source of law. Judging by the doctrinal fragments retained in the introductory title of the Digest, partly recycled in Justinian’s Institutes, ius gentium was somewhat uneasily poised between ius naturae and ius civile.54 In some of these texts, especially in an excerpt from Hermogenianus, it appears as a loose set of institutions shared by all or most nations (gentes),55 who seem to have freely and informally adopted them by customary imitation in answer to practical needs (usu exigente et humanis necessitatibus).56 In other places ius gentium seems to derive from some higher necessity and is more or less identified with natural law. Thus Gaius famously defines it, in contrast to civil law which is ‘established by each people (populus) for itself ’, as that ‘what natural reason has established among  Haggenmacher, Grotius, pp. 496–​506.   See in particular his rather favourable appreciation of the scholastics at De iure belli ac pacis, Prolegomena, 52, p. 25. 53   Max Kaser, Ius gentium (Cologne: Böhlau Verlag, 1993), pp. 10–​74. 54 55  Haggenmacher, Grotius, pp. 313–​20.  Iustinianus, Digesta, 1, 1, 5. 56  Iustinianus, Institutiones, 1, 2, 2. 51

52

peter haggenmacher   57 all humans (quod vero naturalis ratio inter omnes homines constituit) and which is therefore equally observed by all peoples (apud omnes [populos]); it is called law of nations (ius gentium), being as it were in use among all nations (quasi quo iure omnes gentes utuntur)’.57 This etymological explanation recurs almost identically in Isidore of Seville’s definition of ius gentium, which found its way into the canonistic Decretum Gratiani.58 Yet, although it strikingly echoes Gaius’ formula, Isidore does not refer to any higher principle such as naturalis ratio; and the examples he adduces rather seem to point the other way towards conventional arrangements and custom. The main interest of his definition for us lies in the institutions it enumerates, which are all linked somehow to international relations. The medieval jurists, both legists and canonists, spent much effort in clarifying the concept itself and its relationships with the neighbouring categories of natural law and civil law. In the end the solution that prevailed, particularly among the civilian commentators, following the example of Bartolus of Sassoferrato, was to split the concept into a primeval ius gentium that was but an expression of natural law, and a secondary ius gentium which was devised later, through positive enactments, following the needs of the growing human race.59 Thomas Aquinas for his part, instead of distinguishing two kinds of ius gentium, managed to maintain it as a unitary notion by discussing its incongruous elements separately in both sections of the second part of his Summa theologiae. In the Prima secundae, he considered its formal features and its ground of validity, classifying it as a type of human positive law along with civil law.60 In the Secunda secundae, he analysed it in its substance, which he found to be akin to natural law from which it was rationally deduced.61 In neither of the two places, however, is there any hint at a possible international function of ius gentium. It was up to the sixteenth-​century followers of Aquinas to develop these internationalist potentialities. First among them was Francisco de Vitoria, who several times during his twenty years’ teaching in Salamanca touched upon ius gentium, be it in his ordinary lectures on the Summa theologiae or in some of his solemn relectiones, most notably in those he delivered ‘on civil power’ in 1528 and ‘on the Indians and the law of war’ in 1538 and 1539. Just as in Aquinas, ius gentium appears double-​faced, at times as a kind of positive law, and then again as a derivation from

57  Iustinianus, Digesta, 1, 1, 11, and Institutiones, 1, 2, 1. The English rendering is approximate. The term ‘populus’ between square brackets figures in Gaius’ original text (ca. ad 160, rediscovered in 1816 on a Veronese palimpsest); it was dropped by Justinian’s jurists (or possibly by some earlier copyist), but it remains obviously implied, owing to the apud. 58  Isidorus, Etymologiae, bk V, para. VI; Gratianus, Decretum, part I, dist. I, can. 9. 59  Haggenmacher, Grotius, pp. 325–​6 and 330–​3. 60   Both categories of norms derive from natural law through human legislative agency, ius gentium ‘by way of conclusion from common principles’, ius civile less directly ‘by way of particular determination’. Aquinas, Summa, Ia IIae, qu. 95, art. 2 and 4, pp. 959–​60, 961–​2. See also Jean-​Marie Aubert, Le droit romain dans l’œuvre de saint Thomas (Paris: J. Vrin, 1955), pp. 91–​108, especially at pp. 99–​105. 61  Aquinas, Summa, IIa, IIae, qu. 57, art. 3, 1330. See also Haggenmacher, Grotius, pp. 327–​30.

58    sources in the scholastic legacy natural law.62 The positive law option is clearly taken in the ordinary lectures, where Vitoria neatly differentiates ius gentium from ius naturae and declares it founded ‘on the common consent of all peoples and nations’.63 In his solemn lecture De potestate civili he goes even one step further, considering it not only as proceeding from ‘a compact and convention among men’, but as having in addition force of law; indeed, he explains, it is enacted ‘by the authority of the whole world’, the totus orbis appearing ‘in some way as one single commonwealth’ endowed with authority to ‘edict equitable laws convenient for everyone, such as are found in the law of nations’.64 One decade later, in the Relectio de indis, Vitoria veers round and chooses the naturalist option: on the authority of Justinian (and Gaius) he equates ius gentium with a rational law binding on the whole of mankind, including indigenous populations who have never even heard of it before.65 The reason for this volte-​face is simple, for a genuine consent was difficult to construe in this transatlantic setting, so that Vitoria preferred to appeal to common human nature in order to bring the ‘natives’ under one common legality with their colonizers. And yet, a little further on in the same discussion, he has no qualms about shifting back, as a possible alternative, to his earlier ‘positivist’ tack, with the totus orbis again acting as a supreme, quasi-​ parliamentary legislator: granted that some of the ius gentium does not derive from natural law, he argues, it might still obligate the Indians, even against their will, if it was adopted for the general welfare by consent of the greater part of the world (satis videtur esse consensus maioris partis totius orbis).66 Vitoria’s teachings, as reported by the notes of his students, betray a genuine reflection on ius gentium as a source of law, not just in general as with Aquinas, but specifically among nations. His preferred illustration is the law of embassy with its central principle, the inviolability of ambassadors. Yet his observations on ius gentium remain largely unsystematic; at least in the relectiones they are no more than scattered, context-​bound hints and clues; only in the ordinary lecturae on Aquinas do we find the inklings of a coherent theory.67 Even its properly international dimension remains somewhat vague and inarticulate. This is so in spite of the above-​mentioned passage of the Relectio de indis where, owing to a drastically shortened quotation of Gaius’ definition, ius gentium appears as valid inter omnes  Haggenmacher, Grotius, pp. 334–​41.  Vitoria, De justitia, ed. Vicente Beltrán de Heredia (Madrid:  Publicaciones de la Asociación Francisco de Vitoria, 1934), in 2.2. qu. 57, art. 3, pp. 12–​17. Somewhat paradoxically, Vitoria takes the ‘positivist’ stance when commenting on the Secunda secundae, where Aquinas had dealt with the ‘naturalist’ aspects of ius gentium. 64  Vitoria, Relectio de potestate civili, 21, in Obras, pp. 191–​2. 65  Vitoria, Relectio de indis prior, part III, 2, 1°, in Obras, p. 706. 66   ibid., part III, 4, 2°, in Obras, p. 710. 67   For a similar appreciation, see Brian Tierney, ‘Vitoria and Suárez on ius gentium, natural law and custom’, in Amanda Perreau-​Saussine and James B. Murphy, eds, The Nature of Customary Law (Cambridge: Cambridge University Press, 2007), pp. 101–​24, 110–​11. 62 63

peter haggenmacher   59 gentes instead of inter omnes homines. A careful reading of the passage reveals that Vitoria had no intention whatsoever of anticipating Zouche’s comprehensive presentation of ius inter gentes as a specifically interstate law. His main point in this particular demonstration was to link up ius gentium with natural law, in order to make it binding even on peoples hitherto unknown to each other. What mattered for him in Gaius’ definition was, therefore, that it made ius gentium proceed from naturalis ratio, instilling a general sense of hospitality, not between, but among all gentes: it is indeed apud omnes nationes, as Vitoria explains, that receiving strangers badly is normally deemed inhuman, whereas behaving kindly towards them is considered humane and duteous.68 Instead of Zouche’s ius inter gentes, Vitoria was rather anticipating Kant’s ius cosmopoliticum, quite in tune with his totus orbis conception of humanity as one single family in spite of its division into several nations.69 It was after Vitoria’s demise, by the middle of the sixteenth century, that ius gentium was made the theme of a wider debate among his followers as well as among humanist jurists such as François Connan and Alberico Gentili.70 The most outstanding among the theologians was again the Jesuit Francisco Suárez, who was first to give a fully fledged theory of ius gentium. He decisively clarified the concept in three respects. In the first place he considers it as purely positive law, severing thereby its age-​old association with natural law. Secondly, as to its formation and enactment, he sees no other means than custom, in the absence of a legislator among independent nations; which of course perfectly accords with its feature as unwritten law. Finally, Suárez draws a crucial distinction between two types of ius gentium, removing thereby another of its traditional ambiguities:  the expression could indeed denote, on the one hand, a set of municipal law institutions common to all or most nations (ius intra gentes), which was in fact how the Roman jurists had mostly understood it; on the other hand, it could mean a category of properly inter-​ national law (ius inter gentes) which entailed true legal relationships between states; and he obviously considered this as the preferable acceptation, maybe without fully realizing that it was fairly new.71  Vitoria, Relectio de indis prior, part III, 1°, 2, in Obras, p. 706. For similar renderings of Gaius’ ius gentium as ius inter omnes gentes by several of Vitoria’s contemporaries, without the least ‘internationalist’ connotation, see Haggenmacher, Grotius, p. 340, fn. 1633, as well as Haggenmacher, ‘La place de Francisco de Vitoria parmi les fondateurs du droit international’, in Antonio Truyol Serra, Henry Mechoulan, Peter Haggenmacher, Antonio Ortiz-​Arce, Primitivo Marino, and Joe Verhoeven, Actualité de la pensée juridique de Francisco de Vitoria (Brussels: Bruylant, 1988), 27–​80, 57–​64, and Haggenmacher, ‘L’idéologie de la conquête et la notion de droit international chez les grands auteurs espagnols’, in 1492. Le choc de deux mondes. Ethnocentrisme, impérialisme juridique et culturel, choc des cultures, droits de l’homme et droits des peuples (Paris: La Différence, 1993), 210–​22, 218. 69   Haggenmacher, ‘Kant et la tradition du droit des gens’, in Pierre Laberge, Guy Lafrance, and Denis Dumas, eds, L’année 1795. Kant. Essai sur la Paix (Paris: J. Vrin, 1997), 122–​39, 127–​8. 70  Haggenmacher, Grotius, pp. 341–​3 and 353–​6. 71  Suárez, De legibus, bk II, ch. 19, pp.  187–​91, and bk VII, ch. 3, para. 7, pp.  779–​80. See also Haggenmacher, Grotius, pp. 348–​51. 68

60    sources in the scholastic legacy This threefold specification does not, however, imply that Suárez’s ius gentium by itself formed a complete, self-​contained, and self-​sufficient system of international law as was to be the case with Zouche’s ius inter gentes less than half a century later. In fact, these consuetudines totius orbis, quae ius gentium constituunt,72 merely comprise some particular rules and institutions (aliqua specialia iura),73 complementing the very general natural law principles which, though in essence inter-​personal, equally apply to the relations between independent nations and their rulers. It is only in combination that both ius naturae and ius gentium would form together something like today’s general international law (treaties being still considered as a wholly distinct matter, since they are merely contractual arrangements inter partes devoid of properly legal force): this is the vision of the international legal order Suárez outlines in a celebrated passage of his monumental treatise, as a striking counterpart to Vitoria’s totus orbis.74 The two scholastics here again found an eminent continuator in Hugo Grotius, whose definition of ius gentium corresponds in essence to that given by Suárez. He also divides it into two kinds, one being merely common domestic law, the other properly international law; and in all probability he reached this distinction by himself in his first work on the law of war, the De iure praedae, a disquisition written in his early twenties as a young lawyer, several years before the publication of Suárez’s legal treatise. The manuscript, which remained unknown for over two-​and-​a-​half centuries, contains a stupendous system of sources of law calling to mind a composite baroque fountain, where ius gentium springs up, from opposite points, in the two variations distinguished by Fernando Vázquez de Menchaca in the wake of the medieval Bartolists: ius gentium primarium boils down to natural law as applied to human beings as such, whereas ius gentium secundarium comprises various rules and institutions freely adopted by civilized nations.75 This positive kind of ius gentium is in turn subdivided in a manner reminiscent of Suárez’s ius intra gentes and ius inter gentes.76 In his mature work on the law of war and peace, Grotius reformulated his system of sources of law, probably under the impression of Suárez’s De legibus, which had been published in the meantime. The two sorts of ius gentium he had distinguished as a youth were relabelled ius naturae and ius gentium, respectively.77 73   ibid., bk VII, ch. 3, para. 7, p. 779.   ibid., bk II, ch. 19, para. 9, p. 191.   ibid., bk II, ch. 19, para. 9, pp. 190–​1. 75  Grotius, De iure praedae commentarius (1604–​1606), ed. Gerard Hamaker (The Hague: Martinus Nijhoff, 1868), ch. II, p. 12 and pp. 26–​7. See also Fernandus Vasquius Menchacensis, Illustrium controversiarum aliarumque usu frequentium pars prima, tres priores libros continens (1564) (Lyon: Iacobus Stoer and Franciscus Faber, 1599), bk II, ch. 89, paras 23–​39, pp. 743–​9. 76  Grotius, De iure praedae, ch. II, p. 27. See also Haggenmacher, Grotius, pp. 358–​99, and ‘Genèse et signification du concept de “ius gentium” chez Grotius’, Grotiana New Series, 2 (1981): 44–​102. 77  Grotius, De iure belli ac pacis, bk I, ch. I, paras X and XIV. For the distinction between ius gentium intra se and inter se, see Grotius, De iure belli ac pacis, bk II, ch. III, para. V, and ch. VIII, para. I. In line with Suárez, Grotius characterizes ius illud gentium proprie dictum as pertaining ad mutuam gentium inter se societatem; but instead of insisting on its customary origin, he stresses the fact that it has vim pacti inter gentes. Rather than being contradictory, the two approaches would appear as 72 74

peter haggenmacher   61 Just as with Suárez, the law of nations fulfils a merely interstitial function, completing the principles of natural law by more specific regulations tacitly agreed upon by all, or most nations. Here too, it is only in combination that the two categories of rules would form something resembling international law as we know it. * * * Not before the second half of the seventeenth century would the expression Jus Gentium (as it was by then spelt in its full majesty) stand for the whole of the Law of Nations as a legal discipline of its own. As stated earlier, it was not Zouche who led the way in this respect; while he had outlined and charted the discipline, he preferred to name it ius fetiale, the archaic law governing Rome’s foreign relations. If in spite of him the appellation ius gentium soon carried the field, it may well have been owed to the tremendous prestige of his almost exact contemporary, Thomas Hobbes. Strangely so, since Hobbes was later to become the figure-​head of the so-​called ‘deniers of international law’. His ‘law of nations’ indeed boils down to what he named ‘law of nature’ inasmuch as it applied between sovereigns; and this lex naturalis was merely a set of prudential injunctions calculated to facilitate man’s survival in an essentially lawless and hostile state of nature by inducing him as far as possible to ‘endeavour Peace’ instead of making war.78 Although these ‘naturall lawes’ were ‘found out by Reason’,79 they had more in common with scientific laws such as known to modern physics, physiology, or psychology than with the Thomistic ius naturae of Suárez and the Ciceronian recta ratio of Grotius. Hobbes remained somewhat elusive as to the normative status of his law of nations: it was not law in the ordinary sense which exists only under constituted authorities wielding effective power; and yet it could properly be called law inasmuch as the ‘theorems’ and ‘conclusions’ of the law of nature were ‘delivered in the word of God, that by right commandeth to all things’80 and especially ‘to the Consciences of Soveraign Princes and Soveraign Assemblies’.81 Whatever may have been Hobbes’ true thought in the matter, the important point in our context is that the entire range of the relations between sovereign powers was identified with the law of nations. Hardly less important was the fact that Hobbes’ conception was taken up by Samuel von Pufendorf, the most influential legal philosopher on the Continent during the Ancien Régime. Explicitly referring to Hobbes (with whom he shared a marked taste for Euclidian geometry and a hearty aversion for Aristotelian complementary, since custom was generally supposed to rest on an implicit ‘pact’; but the divergence nevertheless tends to mark their reciprocal independence. Custom was usually disparaged as a source of law; it had no part either in Vitoria’s ius gentium, except incidentally as consuetudo et usus belli at Relectio de iure belli, 49, in Obras, pp. 850–​1. 78   Thomas Hobbes, Leviathan, or The Matter, Forme, and Power of a Common-​Wealth Ecclesiasticall and Civil (1651) (Oxford: Clarendon Press, 1965), part I, ch. 14, p. 100. 79   ibid., part I, ch. 14, p. 99. 80   ibid., part I, ch. 15, pp.  122–​3. See also Thomas Hobbes, Elementa philosophica de cive (1642) (Amsterdam: Apud Henricum et Viduam Th. Boom, 1742), ch. III, para. 33, pp. 95–​6. 81  Hobbes, Leviathan, part II, ch. 30, p. 273.

62    sources in the scholastic legacy scholasticism), he considered ius gentium to be merely ius naturae writ large as applied between sovereign nations, rather than a distinct, positive source of law as Grotius (and Suárez) would have it.82 In fact the whole of Pufendorf ’s system of universal jurisprudence was thoroughly Hobbesian in character, however much he made it look Grotian. On this appearance, however, Grotius was soon perceived as the founding hero of an entirely new science of Jus Naturae et Gentium; that is, a purely rational, secular natural law and the pseudo-​law of nations that went with it like a shadow.83 The true structure of his law of war and peace with its twofold source in nature and consent—​a core of immutable principles interlaced with a web of complementary usages—​was thereby largely overlooked, no less than its far-​flung scholastic ancestry. Without perceiving them yet as the twin ‘sources’ of an integrated ius inter gentes, and still less as dynamic ‘law-​making processes’, the schoolmen from Aquinas to Suárez had indeed decisively contributed to crystallizing in themselves what were to become the two main components of classical international law. Perhaps one could even suggest that by their way of going about it—​not as jurists pragmatically distinguishing traditional categories of rules from each other but as moral theologians speculatively retracing their principles of validity—​they may at least indirectly and unwittingly have fostered the emergence of the very concept of formal sources of law.

Research Questions • Could it be that the dualistic system of sources devised by Suárez and Grotius, combining as it does a permanent core of natural law principles with a loose set of positive rules of ius gentium, reflects a basic and enduring structure of international law as a legal discipline, beyond changing fashions and terminologies? • Notoriously, Sir Gerald Fitzmaurice numbered natural law among the formal sources of international law: how far is that claim tenable in modern international law, which likes to think of itself as exclusively ‘positive’?  Samuel von Pufendorf, Elementorum jurisprudentiae universalis libri duo (1660), 2nd edn (Cambridge: John Hayes and John Creed, 1672), bk I, def. 13, pp. 190–​2; De Jure Naturae et Gentium libri octo (1672) (Frankfurt am Main: Friedrich Knochius and Johann Friedrich Andreae, 1706), bk II, ch. III, para. 23, pp. 216–​19. 83   The main propagators of that distorted vision were Pufendorf ’s disciple Christian Thomasius and his translator Jean Barbeyrac, who saw Grotius ‘as the one who broke the ice’ after the long scholastic winter, and as first to lay the true foundations of a system of natural law. Samuel von Pufendorf, Le Droit de la Nature et des Gens, ou Système général des Principes les plus importans de la Morale, de la Jurisprudence, et de la Politique, trans. Jean Barbeyrac (Amsterdam: Chez Henri Schelte, 1706), Préface du Traducteur, para. XXVIII, p. LXXVII. 82

peter haggenmacher   63

Selected Bibliography Choderow, Stanley, Christian Political Theory and Church Politics in the Mid-​Twelfth Century. The Ecclesiology of Gratian’s Decretum (Berkeley: University of California Press, 1972). Flückiger, Felix, Geschichte des Naturrechtes. Vol. I:  Altertum und Mittelalter (Zollikon-​ Zürich: Evangelischer Verlag, 1954). Haggenmacher, Peter, Grotius et la doctrine de la guerre juste (Paris: Presses Universitaires de France, 1983). Kaser, Max, Ius gentium (Köln: Böhlau Verlag, 1993). Larequi, J., ʻDel “Jus Gentium” al Derecho internacional. Francisco de Vitoria y los teólogos españoles del siglo XVIʼ, Razón y Fe 83 (1928): 21–​37. Larequi, J., ʻEl P.  Suárez creador del concepto de Derecho internacionalʼ, Razón y Fe 83 (1928): 225–​40. Schuster, Johann B., ʻWas versteht Franz Suarez unter ius gentium?ʼ, Zeitschrift für öffentliches Recht 16 (1936): 407–​95. Soder, Josef, Die Idee der Völkergemeinschaft: Francisco de Vitoria und die philosophischen Grundlagen des Völkerrechtes (Frankfurt am Main: A. Metzner, 1955). Soder, Josef, Francisco Suarez und das Völkerrecht: Grundgedanken zu Staat, Recht und internationalen Beziehungen (Frankfurt am Main: A. Metzner, 1973). Welzel, Hans, Naturrecht und materiale Gerechtigkeit, 4th edn (Göttingen: Vandenhoek und Ruprecht, 1962).

Chapter 2

SOURCES IN THE SCHOLASTIC LEGACY THE (RE)CONSTRUCTION OF THE IUS GENTIUM IN THE SECOND SCHOLASTIC

Annabel S. Brett

I. Introduction Chapter 1 aptly lays out the problem of including the second scholastic in a volume on the sources of international law.1 Later scholastic authors have no doctrine of ‘sources’. Nor is the phrase ‘ius gentium’, as they employ it, appropriately translated by ‘international law’. It is true that, using the tripartite division found at the beginning of the Digest of Roman law, they identified a domain of ius, meaning both ‘law’ and right’, which covers all peoples but is not natural law (ius naturale). Moreover, given that for them the ius gentium is not natural (and still less divine), it must have come from some human institution. It could not have been created by the authority of any   See ­chapter 1 by Peter Haggenmacher in this volume.

1

annabel s. brett   65 particular commonwealth, because then it would be civil law (ius civile). Therefore, the ius gentium must have originated in some way from all nations, omnes gentes (or ‘almost all nations’, fere omnes gentes). This thesis of origins is one way in which we can try to apply the notion of ‘sources’ in respect of it. But even if we do, it is still critically important to understand that the ius gentium, for them, was not something that is still being made from these origins. It is something that has already come into being. As we shall see, while it can theoretically be changed, in practice it cannot, except ‘in part’; and even of this there was only one example, the practice of Christian nations in not enslaving their own captives in war. Scholastic writers did not understand specific contemporary legal arrangements like peace treaties between commonwealths as part of the ius gentium. For them, the ius gentium was instead the unwritten juridical framework in which all such arrangements are necessarily accommodated. The task that later scholastics set themselves was a kind of hermeneutic reconstruction of the principles of that domain of unwritten law—​a reconstruction that was always, of course, at the same time a construction of their own position.2 From that position they might, in their lectures and published texts, subsequently comment or even pronounce on the legality of events or practices of their contemporary world, but they would not have understood themselves to be making law in so doing. In this sense, while we may read their works as works ‘of ’ international law, they themselves did not. No sixteenth-​or seventeenth-​century scholastic production could be a work ‘of ’ the ius gentium as they understood it. This simple instance of untranslatability should serve sufficiently to establish the difference between the two concepts. The focus of this chapter, therefore, is upon how and why later scholastic theologians reconstructed the ius gentium in the way that they did. In order to answer those questions, we have to see how they themselves understood their broader enterprise, both intellectual and political.3 While members of the second scholastic were familiar with law—​civil law, canon law, and to some extent the laws of particular commonwealths, especially Castile—​by profession they were not lawyers   The title of a recent edited volume aptly captures the politics of their legal enterprise: Kirstin Bunge, Stefan Schweighöfer, Anselm Spindler, and Andreas Wagner, eds, Kontroverse um das Recht. Contending for Law. Beiträge zur Rechtsbegründung von Vitoria bis Suárez. Arguments about the Foundation of Law from Vitoria to Suárez (Stuttgart-​Bad Cannstatt: Frommann-​Holzboog, 2012). 3   The most recent comprehensive survey of the Dominican ‘School of Salamanca’ is Juan Belda Plans, La escuela de Salamanca y la renovación de la teología en el siglo XVI (Madrid: Biblioteca de Autores Cristianos, 2000). Harro Höpfl, Jesuit Political Thought. The Society of Jesus and the State, c. 1540–​1630 (Cambridge: Cambridge University Press, 2004), concentrates on the Jesuit political self-​ understanding and enterprise. An earlier account which handles Jesuit as well as Dominican authors can be found in Quentin Skinner, The Foundations of Modern Political Thought (Cambridge: Cambridge University Press, 1978), vol. II, ch. 5; reflections in Annabel S. Brett, ‘Scholastic Political Thought and the Modern Concept of the State’, in Annabel S. Brett and James Tully, eds, Rethinking the Foundations of Modern Political Thought (Cambridge: Cambridge University Press, 2006), 130–​48. Annabel S. Brett, ‘Later Scholastic Philosophy of Law’, in Fred D. Miller and Carrie-​Ann Biondi, eds, A History of the Philosophy of Law from the Ancient Greeks to the Scholastics, 2nd edn (Dordrecht: Springer, 2015), 335–​75, offers a full survey of Dominican and Jesuit legal thinking. 2

66    sources in the scholastic legacy but theologians, and the distinction between the two professions was an important element of their self-​understanding. They worked primarily in a university context, within faculties of theology, delivering lectures on the Summa theologiae of Thomas Aquinas. Aquinas had treated the question of law and right (ius: the Latin term in our authors can mean both, and sometimes both at the same time) in the course of his Summa, and his Dominican and then Jesuit successors in the sixteenth and seventeenth centuries followed suit. In one sense, then, their enterprise in discussing the ius gentium was simply part of their normal academic activity in teaching theology, including moral theology, to their students. Certainly, Aquinas had given law a centrality that it had not had prior to his work. Half of the Summa—​the whole of the second part, including the Prima secundae and the Secunda secundae—​is given over to an exhaustive theological treatment of human agency. Law as a command of reason figures as an external principle of moral action in the Prima secundae, and right as what is objectively just figures in the discussion of justice in the Secunda secundae, justice being a virtue and hence one of the internal principles of moral action. Thus the theologians of the second scholastic, inheriting and developing a theology in which agency and action were central categories, also developed the questions of law and right that those categories involved. The ‘founder’ of the Dominican ‘School of Salamanca’, Francisco de Vitoria, had deliberately introduced the Summa (which he had come to know as a student of Peter Crockaert at the Collège de Saint-​Jacques in Paris) as a replacement for the Sentences of Peter Lombard as the text upon which to lecture from his chair in Salamanca. One of the advantages of the Summa over the Sentences was precisely the way in which it allowed professors to handle moral theology systematically. The demand for such treatment was not purely academic. The later Middle Ages had seen a major rise in the publication of casuistic theology designed for the forum of conscience. These works, aimed at priests in their capacity as confessors, gave increasing space to questions of the legality and rightfulness of individual actions, especially contracts of all kinds: questions that were becoming ever more intricate with the development of the monied economy.4 One of Vitoria’s base references, even if he was not always very respectful towards it, was the Summa summarum of the Italian Dominican Sylvester Mazzolini da Prierio, a massive alphabetical treatment of the rights and wrongs involved in potential cases of conscience.5 Such works had already digested the mass of Roman and canon law into a theologically usable resource upon which theologians of the second scholastic could draw, although it is clear that some members of the school did not merely derive their knowledge of law second-​hand, but read with interest works by medieval and contemporary 4   See Wim Decock, Theologians and Contract Law. The Moral Transformation of the Ius Commune (ca. 1500–​1650) (Leiden: Brill, 2013), ch. 2 for background. 5   For Mazzolini, see Michael Tavuzzi, Prierias. The Life and Works of Sylvestro Mazzolini da Prierio, 1456–​1527 (Durham: Duke University Press, 1997).

annabel s. brett   67 jurists, and had even studied law themselves. Nevertheless, despite the centrality of law in their moral theology, they distinguished their theological treatment of law from law as practised by lawyers.6 Law as handled by a theologian was law in relation, ultimately, to God. It was because of this that theologians could pronounce on the rationale of law in a way that professional lawyers could not. They worked within their given field of law, and were expert as such. But they were not competent, as theologians were, to pronounce on matters of general legal principle or on any legality outside their specific field. The importance of the ‘forum of conscience’ in how these theologians constructed the domain of ius (both law and right) is increasingly being recognized.7 By contrast, another context, that of European expansion and the conquest of the New World, has always been acknowledged, whether this is viewed in a positive or a negative light. The violent encounter with peoples and lands totally alien to the European world threw up questions of law and right that theologians felt themselves to be in a privileged position to answer:  not merely because, as members (often) of missionary orders, their information as to what was actually going on was often superior, but primarily because their theological handling of the juridical universe did not tie them to any European law, canon, civil, Castilian, or anything else. The ius gentium thus came to be central to the theologians’ claim not merely to intellectual authority but also to political relevance and involvement. Especially for the first generation of the School of Salamanca, it was in this sense definitional for their intellectual enterprise, and the need to articulate it breathed new life into the entire study of law and right that they had inherited from Aquinas.8 Two extra-​civil spheres of law, then, the law of conscience and the law of nations, formed the basis of the late scholastic engagement with law and right, leading to a proliferation of theological treatments of these subjects cut free from the traditional format of commentary on the Summa theologiae. It is important, however, to see that these two domains were not separate in their handling. For the later scholastics, as we shall see, the central element of the ius gentium was what they called, following the Roman law, dominia distincta, ‘divided domains’: relationships of property and of lordship that belonged to separate individuals or bodies. But dominia distincta were also at the heart of the casuistry of conscience in its late medieval, contract-​ orientated form. Moreover, although the ius gentium was theoretically enforceable 6   See, in relation specifically to Francisco Suárez, the editors’ introduction in Oliver Bach, Norbert Brieskorn, and Gideon Stiening, eds, ‘Auctoritas omnium legum’: Francisco Suárez’ De legibus zwischen Theologie, Philosophie und Jurisprudenz (Stuttgart-​Bad Cannstatt: Frommann-​Holzboog, 2013), xiii–​xxvii. 7   See e.g., Decock, Theologians and Contract Law. 8   Andreas Wagner considers the relationship between ius gentium and ius per se in ‘Zum Verhältnis von Völkerrecht und Rechtsbegriff bei Francisco de Vitoria’, in Kirstin Bunge, Anselm Spindler, and Andreas Wagner, eds, Die Normativität des Rechts bei Francisco de Vitoria. The normativity of law according to Francisco de Vitoria (Stuttgart-​Bad Cannstatt: Frommann-​Holzboog, 2011), 255–​86.

68    sources in the scholastic legacy through a just war, in practice most violations of the ius gentium could only ever be convicted, if at all, in the court of conscience. Vitoria made the intersection between the two spheres of law very clear at the beginning of his ‘relection’ On the American Indians (1539): I say that it is not the province of lawyers, or not of lawyers alone, to pass sentence on this question. Since these barbarians we speak of are not subjects [of the Spanish Crown] by human law (iure humano)  .  .  .  their affairs cannot be judged by human statutes (leges humanae), but only by divine ones . . . since this is a case of conscience, it is the business of priests, that is to say of the Church, to pass sentence upon it.9

II.  Reconstruction from Authorities Understanding in this way the place of the ius gentium within the legal thought of the second scholastic, and the work it had to do, we can now ask how the theologians reconstructed its more specific content. One part of the answer is, simply, through the traditional scholastic method: that is, through the creative use of ‘authority’ as a source of argument. Scholastic theologians deliberately worked within a tradition of inherited discourse that stretched back not only to Aquinas and the Middle Ages, but back beyond that to the great patristic scholars, to all the writings of Antiquity and to the Bible itself. That hinterland gave them a vast repository of authoritative pronouncements upon which to draw. The Salamanca theologian and pupil of Vitoria, Melchor Cano, listed ten major types of ‘authority’ as the ten ‘places’ from which theological arguments could be drawn in his De locis theologicis, published posthumously in 1563.10 These were, in order: the authority of Scripture; the authority of the traditions of Christ and the apostles; the authority of the Catholic Church; the authority of Church Councils; the authority of the Roman Church; the authority of the old saints; the authority of scholastic theologians, including those learned in 9  Francisco de Vitoria, Vitoria. Political Writings, eds Anthony Pagden and Jeremy Lawrance (Cambridge: Cambridge University Press, 1991), p. 238. For commentary on this work see, in addition to Bunge et al., eds, Die Normativität des Rechts, Norbert Brieskorn and Gideon Stiening, eds, Francisco de Vitorias ‘De indis’ in interdisziplinärer Perspektive. Interdisciplinary Views on Francisco de Vitorias ‘De indis’ (Stuttgart-​Bad Cannstatt: Frommann-​Holzboog, 2011). 10   Melchor Cano, De locis theologicis, ed. Juan Belda Plans (Madrid: Biblioteca de Autores Cristianos, 2006), ch. 3.  For Cano, see Belda Plans, La escuela de Salamanca, ch. 6.  For the idea of arguments ‘coming out of ’ common places in sixteenth-​century rhetorical theory, see Quentin Skinner, Reason and Rhetoric in the Philosophy of Hobbes (Cambridge:  Cambridge University Press, 1996), p.  115 on Erasmus, who pictured loci communes as little houses from which, if one knocked at the door, an argument might emerge.

annabel s. brett   69 canon law; the authority of natural reason; the authority of philosophers, including those learned in civil law; and the authority of human history. These broad ‘authorities’ lay behind the more specific authority of particular texts. Only one text, the Bible in the Vulgate translation, was authoritative as a text. But as the continued use of the Vulgate itself demonstrated, the Bible was not regarded as self-​interpreting. In the Counter-​Reformation period in which these authors wrote, the authority of Church tradition was central to the Catholic repudiation of the Lutheran hermeneutic principle sola scriptura, and thus the Bible had to be understood through the Church and through generations of inherited exegesis. In this context, the texts of the Church Fathers were high in authoritative status, and they were understood to have been written with some kind of divine illumination, although not with the direct inspiration of Scripture. Other, lesser but sometimes equally important textual authorities had been constituted as such precisely through the scholastic practice of appealing to them. In principle, then, any text with some claim to authoritative status within the tradition could be used as an argument for the nature of the ius gentium. In practice, particular ‘authorities’ sedimented around particular topics and indeed became part of the definition of that topic. On the nature of the ius gentium, the opening title of the Digest of Roman law, De iustitia et iure, was a key reference, especially D. 1.1.5 (l. Ex hoc iure) and D. 1.1.9 (l. Omnes populi). The latter linked the ius gentium firmly with natural reason. But the former listed a series of institutions which did not appear to be strictly natural: ‘[o]‌f this law of nations wars were brought in, peoples separated, kingdoms founded, properties distinguished (dominia distincta), boundaries put on fields, buildings set in place, trade, buyings and sellings, lettings and hirings, and obligations instituted: except for some that were brought in by civil law’. This mixed bag of contents, covering both public bodies and private individuals, continued to define the ius gentium in scholastic thought up until the beginning of the seventeenth century. Canon law similarly constituted an authority on the subject, especially the excerpt from Isidore of Seville’s Etymologies at Decretum D. 1 cap. 6: ‘the ius gentium is so-​called because almost all nations (gentes) use that law’. Clearly, too, for these authors Aquinas was another fundamental authority, although scholastic theologians did not feel bound to follow him in everything. Patristic authors, especially Augustine pronouncing on the subject of the Roman empire and the justice of war in The City of God, and pagan philosophers such as Aristotle in Book I of the Politics could also be brought in to frame a question, say, on slavery as an institution of the ius gentium. Occasionally, too, historical and contemporary examples played a role, as for example in Vitoria’s mention of the alliance of the Tlaxcalans in On the American Indians, or in a series of Jesuit authors referring to the practice of the Chinese in not admitting strangers to the interior of their country. These ‘authorities’ functioned in two ways. In one way, they served as a kind of intellectual handrail to the theologian in approaching a potentially controversial topic. To proceed without such a handrail—​not to appeal to any authorities

70    sources in the scholastic legacy for what one was thinking or saying—​would have been regarded as ‘temerity’: too bold, unsafe, disrespectful.11 But such authorities also served, in the same breath, as rhetorical trump cards in the argument in which every scholastic theologian was always engaged, either with an imaginary adversary or with a real adversary, whether named or not. Authorities were persuasive to audiences as well as genuine supports of arguments. The two functions cannot be separated in scholastic intellectual and literary forms. Textual ‘authorities’ on the subject of the ius gentium, then, were not sources of the ius gentium, but resources for its theological reconstruction—​for, as said at the outset, the theologians with whom we are concerned did not think that their doctrine itself constituted part of the ius gentium. However, the high degree of convergence of textual authorities on the nature of the ius gentium did, in fact, function as a kind of informal ‘source’ in a different way. As we shall see, human consensus—​ the consensus gentium, or consensus totius orbis—​was held to be the true ‘source’ of the ius gentium, in the sense of that from which it originated. Such pan-​human consensus was, however, not something that could be easily pointed to. Thus it, too, had to be argued for. As we shall see, one main route for doing so involved the demands of natural reason, and thus of natural law; the other involved an appeal to universal human practice. But the agreement of textual authorities on the content of the ius gentium served as an index of both, for those authorities came from different times and different places, and were both Christian and non-​Christian. In this sense, textual authorities, while not a true source (in the informal sense of ‘origin’), functioned as a kind of proxy source.

III.  Reconstruction From Natural Reason and Natural Law Heirs to the Thomist tradition, all the theologians of the second scholastic posited a natural law in human beings that was connected, in some sense, to the natural human capacity for the exercise of reason. As Professor Peter Haggenmacher has outlined, by the sixteenth century controversy had arisen over whether natural law was the work of human reason participating in God’s reason, as Aquinas had held, or whether it was instead an act of God’s will.12 Even the voluntarist Francisco 11  See Annabel S. Brett, ‘Authority, Reason and the Self-​ Definition of Theologians in the Spanish “Second Scholastic” ’, in George H. Tucker, ed., Forms of the ‘Medieval’ in the ‘Renaissance’. A Multidisciplinary Exploration of a Cultural Continuum (Charlottesville: Rookwood, 2000), 63–​90. 12   See ­chapter 1 by Peter Haggenmacher in this volume.

annabel s. brett   71 Suárez, however, who held the latter position in his De legibus ac Deo legislatore of 1612, nevertheless also posited that the natural law contains necessary truths of right and wrong that are accessible to natural human reason; no one endorsed what they saw as the extreme voluntarism of William of Ockham, in which even the content of natural law (not just its character as a command) was dependent on God’s free will. The most radical thinking about natural law in fact came from the other side of the debate: Suárez’s opponent Gabriel Vázquez held the intellectualist position to such a degree that he thought that the ius naturale in its primary sense was not a law in the sense of a command at all (whether of will or of reason), but rather a ius in the sense of an objective rightness accessible to natural reason.13 Whatever the precise position on this issue, natural law was held to constitute a series of precepts for right action that were accessible to every human being who had the use of their natural reason. They were summed up in the ‘Golden Rule’: do not to another that which you would not have done to yourself (quod tibi fieri non vis, alteri ne facias). But, as Aquinas had made clear, natural reason and natural law themselves dictated that human beings must live in society with each other; and for the regulation of that society, natural law needed to be supplemented by laws that human beings themselves established. According to his treatment of law in the Prima secundae of the Summa, ‘human law’ is either the ius gentium or the ius civile.14 Both, he argued, ultimately derived from natural law, but the ius gentium is generated in the manner of a conclusion deduced from a principle, whereas the ius civile has a looser connection, being a kind of ‘determination’ of the natural law principle in specific circumstances. This meant that, although the ius gentium is a positive law, it is not contained in human law ‘as solely laid down (“posited”) by law’, tanquam sola lege posita; it also has ‘something of force’, aliquid vigoris, from natural law. By contrast, in the Secunda secundae, Aquinas tackled the subject from the perspective not of law but of ius or ‘right’ in the sense of iustum, ‘what is right’, the object of the virtue of justice. Here, he placed the ius gentium under natural rather than positive right: natural not in an ‘absolute’ or unqualified sense, but by a form of comparison, which is the work of natural human reason.15 These hesitations over what to do with the ius gentium, somewhere between natural and human law, were reflected in the first generation of the School of Salamanca. The Dominicans Vitoria and Domingo de Soto were clear that the ius gentium could not be natural law, because it covered things like slavery and private property, which no one thought   Gabriel Vázquez, Commentariorum ac disputationum in Primam Secundae Sancti Thomae, Tomus secundus (Lyon: 1620), disp. 105 [recte 150], cap. 3; Francisco Suárez, De legibus ac Deo legislatore, ed. Luciano Pereña, 6 vols (Madrid: CSIC, 1971–​80), Lib. II, cap. 8. 14   Thomas Aquinas, Summa theologiae, ed. Leonina (Rome: 1893), Prima secundae, q. 95, esp. a. 2 and a. 4. 15  ibid., Secunda secundae, q. 57, esp. a. 3. The relationship between the two dichotomies (natural/​ human, natural/​positive) is unclear, but on the meaning of ‘positive’ in Aquinas see the discussion in James Murphy, The Philosophy of Positive Law (New Haven: Yale University Press, 2005), ch. 2. 13

72    sources in the scholastic legacy were part of natural law. But it was not clear what precisely made the difference. In the face of this challenge, they negotiated different ways of introducing a moment of human institution into the ius gentium, irreducible to natural law and yet not as remote from it as was the civil law of specific commonwealths. Vitoria seemingly made a decisive move in shifting the ius gentium away from natural law. He first addressed the question in his 1528 ‘relection’ On civil power, in which he posited some sort of human establishment as its origin. Sketching that origin in the briefest manner, he argued that the ius gentium does not simply arise ex pacto et condicto, from a kind of contractual undertaking; it also has the force of law, vim legis. Although not entirely clear, what he seems to be saying is that the ius gentium is not merely an inter-​human juridical arrangement that gives rise to ‘right’ in the sense of the object of justice adjudicated by a judge, but is rather a true law or lex. Asserting that it has the force of law, however, involved his crediting the whole human race with legislative power, ‘as if it were a commonwealth’. That is, the legislative force of the ius gentium cannot be thought about without thinking of the world as a united body that is the locus of quasi-​political power.16 By contrast, in his lectures on the Summa which date from the 1530s, Vitoria failed entirely to discuss the ius gentium under the heading of lex in the Prima secundae, except to remark that Thomas appeared to contradict himself. Vitoria dealt with the subject only in his commentary on the Secunda secundae. Here he effected his famous move from the ‘objective’ right of Aquinas to a ‘subjective’ sense of right as belonging to the individual, and indeed equivalent to dominium in a broad sense.17 It does not seem that he entirely reduced the ius gentium to subjective rights, but it is clear that dominium, divided among individual persons or bodies (dominia distincta, as the l. Ex hoc iure had it), was at the heart of it.18 This ius (law in the sense of a domain of law) that was effectively a system of iura (subjective rights) was not a form of natural but of positive right, ‘positive’ in the sense of based on agreement.19 It had a human origin in ‘the consensus of all peoples and nations’ or ‘of the whole world’.20 Despite his insistence on the positive character of the ius gentium, however, Vitoria followed Aquinas in seeing it as arising from the operation of natural reasoning processes. It retained a close proximity to natural ‘right’ both in being a  Vitoria, Political Writings, p. 40.  See Daniel Deckers, Gerechtigkeit und Recht. Eine historisch-​ kritische Untersuchung der Gerechtigkeitslehre des Francisco de Vitoria (1483–​1546) (Freiburg:  Herder, 1992); Annabel S. Brett, Liberty, Right and Nature. Individual Rights in Later Scholastic Thought (Cambridge:  Cambridge University Press, 1997), ch. 4; Brian Tierney, The Idea of Natural Rights (Atlanta:  Scholars Press for Emory University, 1997), ch. 11. 18   For the consequences of putting dominium at the heart of the ius gentium, see Martti Koskenniemi, ‘Empire and International Law: The Real Spanish Contribution’, University of Toronto Law Journal 61 (2011): 1–​36. 19  Vitoria, Comentarios a la Secunda secundae de Santo Tomás, ed. V. Beltrán de Heredia (Salamanca: 1934), vol. III, q. 57 a. 3, nn. 1–​5. 20   ibid., q. 57, a. 3, nn. 4 and 5. 16 17

annabel s. brett   73 result of natural reasoning, and in functioning to protect the operation of natural law: it ‘is necessary to the conservation of natural right’.21 Thus, the teleology of the ius gentium is the same as that of natural law. In the ‘relection’ On the American Indians, Vitoria moved the ius gentium closer still to natural ius in legitimating his notorious ius communicandi, the right of migration, trade, and settlement. Here he wrote that the ius gentium either is, or is almost the same as, ius naturale.22 Despite Vitoria’s seemingly strong rejection of Aquinas’ position, then (‘the right of peoples does not necessarily follow from natural right, nor is it absolutely necessary to the conservation of natural right, because if it necessarily followed from natural right, it would just be natural right  .  .  .’),23 in fact the link that he wanted to maintain between the ius gentium and natural reason brought their positions closer together in the end. Vitoria’s colleague, Soto, concurred but stayed closer to Aquinas’ logic. More than Vitoria, Soto slimmed down the content of natural law to those precepts that can be known immediately to practical reason, without any further discursive process of thought. That made the list of precepts of natural law very short, and very basic: along with the Golden Rule, Soto only offered one more, ‘[l]‌ife is to be lived together tranquilly and peacefully’. He described these precepts as semina, seeds implanted in the nature of our reason that enable us to carry out the further reasoning that is necessary for achieving our ends.24 This, then, opened up the space for the ius gentium, which for Soto is constituted by natural reason working from the principles of natural law to more specific conclusions, as Aquinas had argued in the Prima secundae. For Soto, it was its source in this discursive process or ratiocination that made the ius gentium human law rather than natural law. But equally important to his understanding of its origins were the circumstances that gave rise to such reasoning. Soto positioned the ius gentium following the Fall, circumstances in which the earth did not naturally provide for human needs and therefore labour was necessary. It is this that necessitated the division of dominium, which equally as for Vitoria was for him at the heart of the ius gentium. Differently from Vitoria, Soto did not see the need for any legislative power or body to make the ius gentium; the discursive reasoning that gives rise to it is done by individual human beings by themselves.25 But because the conclusions are reached from principles of natural law that are immediately known to natural reason, the result is a consensus of all gentes or peoples on the content of the ius gentium. Vitoria’s commentaries on the Summa remained unpublished, but, as we have seen, he had already made an objection to the kind of Thomist solution that Soto had offered which would be taken up by subsequent theologians: anything derived  ibid., n. 4.   22 Vitoria, On the American Indians, p. 278.  Vitoria, Comentarios, q. 57, a. 3, n. 4. 24  Soto, De iustitia et iure (Salamanca: 1556), Lib. I, q. 5, a. 1. 25   ibid., Lib. I, q. 5, a. 4; Lib. III, q. 1, a. 3; Lib. IV, q. 3, a. 1.

21

23

74    sources in the scholastic legacy necessarily from natural law, as conclusions from principle, is already contained within natural law and does not mark a separate domain of ius. Subsequent writers within the later scholastic tradition agreed: the ius gentium must be positive law of some kind. This position was clearly stated by Suárez in De legibus: . . . nor do we agree with the mode of talking of some theologians, who think that the law of nations has an intrinsic necessity in its precepts, and differs from natural law only in that natural law is evident without discursive reasoning, or with the easiest discursive reasoning, while the law of nations is gathered from several and more difficult inferences . . . because many things are said to belong to the law of nations which do not have that intrinsic necessity, like the division of property, slavery and other things. . . .

It follows that the law of nations does not command anything as being of itself necessary for good morals, nor does it prohibit anything that is intrinsically evil . . . rather, all these things belong to natural law.26

For Suárez, then, the ius gentium is clearly positive law, in the sense of stemming from human establishment. This required him to confront the question of who or what legislates it; we shall look at his answer to that question in section IV. Meanwhile, however, despite its strongly positive character, the ius gentium still retained for Suárez a connection with natural reasoning processes. Thus, considering that aspect of the law of nations which allows an injured nation to avenge itself against an aggressor without having to seek any further authorization to do so, Suárez acknowledges, as he must for all the precepts of the law of nations, that ‘of the force of natural reason, it was not necessary that this power should be in the commonwealth that had been attacked; for human beings could have instituted another mode of vengeance, or committed that power to a third prince as an arbiter with coercive power’. Nevertheless, ‘because the mode that is now observed is easier and more in agreement with nature, therefore it was introduced, and is so just that it cannot rightfully be resisted’.27 While natural law and natural reason are not the immediate origin of the ius gentium, then, they retain an important background role in shaping it. Suárez’s treatment of the ius gentium, like his treatment of natural law, was partly directed at combatting the arguments of his fellow-​Jesuit, and rival, Gabriel Vázquez.28 In Vitoria and Soto, as we have seen, the ius gentium oscillates between being ius in the sense of ‘law’ and ius in the sense of ‘right’, centrally understood as dominium. Suárez, however, was very clear that it contained both of these dimensions separately. Every domain of ius, he held, contained both precepts (i.e. laws), and spheres of dominium (i.e. rights). This position was directed against Vázquez, 27  Suárez, De legibus, Lib. II, cap. 17, nn. 8–​9.  ibid., n. 8.   For the difference between Suárez and Vázquez on the ius gentium, see John P. Doyle, ‘Francisco Suárez on the Law of Nations’, in Mark W. Janis and Carolyn Evans, eds, Religion and International Law (The Hague: Martinus Nijhoff, 1999), 103–​20; Annabel S. Brett, Changes of State. Nature and the Limits of the City in Early Modern Natural Law (Princeton: Princeton University Press, 2011), ch. 3. 26 28

annabel s. brett   75 who had argued that the ius gentium is simply not a law at all.29 What it is, in fact, is nothing more than a series of rights, for example the right to wage war. There is no law, he pointed out, which says that an injured nation must avenge itself against its aggressor. It simply has the right to do so if it sees fit. Thus, that aspect of the ius gentium which is the ius belli is not ‘the law of war’ but ‘a right of war’; and Vázquez suggested that it was the same for all aspects of the ius gentium. The only law among nations was, then, natural law; it is natural law, not any law of nations, which is violated when, for example, a nation abuses its right of war. Suárez and others insisted against him that there was indeed such a thing as a law of nations, as well as rights. But it was not particularly easy to point out what it was. Suárez himself had had to concede that under the law of nations an injured nation was itself judge as to whether or not to avenge itself. Not for the first time, Vázquez’s radical thinking had exposed a weak point in some well-​worn and uncontested scholastic assumptions.

IV.  Reconstruction from Human Practice and Human History As we have seen, the basic thrust of later scholastic thinking on the ius gentium was to understand it as positive law, that is, law created by human beings. However, it seemed that this must be human beings in some kind of informal capacity, because there was no formal body with the legislative power to enact the ius gentium. The world commonwealth to which Vitoria had referred in his early work was only, as we have seen, a mental move, ‘quasi a commonwealth’; and thereafter he had referred simply to totus orbis, ‘the whole world’, or omnes gentes, ‘all peoples’, without insisting on the specific capacity in which those bodies were acting, or even whether they were acting as bodies or as individuals. Soto, as we have seen, more decidedly saw individual reasoning as the origin of the ius gentium, obviating the idea that the ius gentium might require a public person or prince. In both authors, the informal origins of the ius gentium are connected with its proximity to natural reasoning and natural law. ‘Peoples’ or ‘human beings’ have the authority to legislate the ius gentium as a true ius—​whether in the sense of law or of right—​because, taken across the whole world, they will all reason both rightly and in much the same way. These two things coincide because reasoning rightly and reasoning similarly are both accounted for by natural reason and natural law.  Vázquez, Commentariorum ac disputationum in Primam Secundae Sancti Thomae Tomus secundus, disp. 157, cap. 3. 29

76    sources in the scholastic legacy In accounting for the difference between natural law and the ius gentium, both Vitoria and Soto laid weight on the concrete circumstances of human life. Human beings do not just naturally reason; they reason in specific situations, in which the teleology of natural law needs to be mediated through specific arrangements which are not given in nature.30 The most important circumstance is the need to cultivate the earth following the Fall of man and the expulsion from Eden. Aristotelians as they were, Vitoria and Soto held that human beings naturally reasoned to the conclusion that dominium over the fields must be divided so that they can be better cultivated and also in order to prevent quarrels over them. It is in thinking about how this division was enacted that both of them stress its informal origins. Unlike Soto, Vitoria does allow for a public authority or prince legislating in his capacity as head of the commonwealth. But the emphasis is laid much more upon the tacit consent of individuals. The simple fact of one individual or family going in one direction and another going in another (after the example of Abraham and Lot) is held to represent tacit consent to division of landed property.31 A second circumstance is geographical space, through which people need to travel. Hence, for both Vitoria and Soto, the ius gentium contains a prohibition against the arbitrary blocking of movement, since natural reason would never have supported such an impediment to the fulfilment of human needs in the circumstances of a humanity which is dispersed all over the globe.32 These two Dominican writers, then, conceived the ius gentium as a function of human practice in concrete space and time, the terraqueous globe with its history of human settlement.33 It was generated following the Fall but also, and crucially, following the Flood, after which the descendants of Noah, according to the Vulgate, ‘by their increase filled even the islands’. The repopulation of the world was the first truly global moment, and the law that governed it was a law both of division, into separate lands, and communication between those lands. As Vitoria put it in On the American Indians: in the beginning of the world, when everything was in common, everyone was allowed to visit and travel through any land he wished. This right was clearly not taken away by the division of property: it was never the intention of the nations to prevent men’s free mutual intercourse with one another by this division. Certainly it would have been thought inhuman in the time of Noah.34

  Compare Annabel S. Brett, ‘Human Rights and the Thomist Tradition’, in Miia Halme-​Tuomisaari and Pamela Slotte, eds, Revisiting the Origins of Human Rights (Cambridge:  Cambridge University Press, 2015), 82–​104. 31  Vitoria, Comentarios a la Secunda secundae, q. 62, a.1, nn. 21–​3. 32  Vitoria, On the American Indians, q.  3, a.  1; Domingo de Soto, In causa pauperum deliberatio (Salamanca: 1566; first published 1545), Cap. 4. I have discussed this text in Changes of State, ch. 1. 33   See Soto, De iustitia et iure, Lib. IV, q. 4, a. 2: ‘we call “the world” the whole globe and compass of lands (terrarum) and waters (aquarum)’, in the context of arguing that the Roman emperor is not ‘lord of all the world’. 34  Vitoria, On the American Indians, p. 278. 30

annabel s. brett   77 While Suárez equally linked the ius gentium to human practice, he no longer associated it with the specific historical and geographical narrative in which it was embedded for Vitoria and Soto. Rather, his interest in human practice lay in its potential to solve the problem of demarcating the law of nations from natural law on the one hand, and civil law on the other. He appealed, however, not simply to a generalized conception of practice, but to the specific legal notion of custom. This simultaneously solved the problem of the authority to legislate, since custom was well established as a possible origin of law in both jurisprudence and theology. Thus he wrote: [t]‌he commands of the law of nations differ in this from the commands of civil law, that they consist not in writing but in customs, and not of one or another city or province but of all or almost all nations. . . . If [something] is introduced by the customs of all nations and obliges them all, then we believe that this is properly the law of nations; and it differs both from natural law, because it rests not on nature but on customs, and from civil law in its origin, basis and universality, as explained.35

Suárez was careful to note that the ius gentium did not require absolutely every nation to concur in the relevant customs; relying on Isidore in the Decretum (quoted in section II), he suggested that fere, ‘almost’, meant that occasional customs involving ignorance and error could be excluded from the law-​forming practice of ‘well-​ educated nations’. Suárez’s most revolutionary move, however, was to make a distinction between two ways of talking about the law of nations. The appeal of Vitoria and Soto to situated human practice had served to explain the division of dominium into private properties and also the practices which mediate between that division—​trade, travel, etc. The ius gentium in this sense is policed by commonwealths, in the form of war, but is not exclusive to commonwealths—​indeed, it is more private than public. Suárez, however, broke with this tradition to distinguish practices that are exclusively between nations (ius inter gentes) from practices that cross nations (ius intra gentes): in one way, because it is the law that all peoples and nations ought variously to keep amongst themselves; in another way, because it is the law that individual cities and provinces observe within themselves, but which is called the law of nations by similitude and appropriateness. . . . The first way seems to me most properly to contain the law of nations, which is different in itself from civil law . . .36

The latter are really civil law practices, even if they are universal or near-​universal. Suárez was not the first to connect the ius gentium with civil law: Fernando Vázquez de Menchaca, in his Controversiae illustres of 1564, had suggested that the ius gentium  Suárez, De legibus, Lib. II, cap. 19, n. 6. See Brian Tierney, ‘Vitoria and Suarez on Ius Gentium, Natural Law, and Custom’, in Amanda Perreau-​Saussine and James Murphy, eds, The Nature of Customary Law (Cambridge: Cambridge University Press, 2007), 101–​24. 36  Suárez, De legibus, Lib. II, cap. 19, n. 6. See further J. Schröder, ‘Die Entstehung des modernen Völkerrechtsbegriffs im Naturrecht der frühen Neuzeit’, Jahrbuch für Recht und Ethik 8 (2000): 47–​7 1. 35

78    sources in the scholastic legacy in this sense was originally civil law that had spread out across the whole world.37 But Suárez was certainly the first to say that this law governing property was not the ius gentium properly speaking, and that the ius gentium in its proper sense was a function of the customs of commonwealths, not individuals. Nevertheless, Suárez continued to insist, like his Dominican predecessors, on the unity of the human race, which he called a moral and political unity. For him, it supplied the rationale of the ius gentium, if not its source.38 Suárez’s theoretical distinction between the ius inter gentes and the ius intra gentes was novel. However, even before he made this move, the discussion concerning the possibility of abrogating the ius gentium had revealed a fissure within the old conception. Vitoria had been clear that, because the ius gentium was positive and not natural ius, it could potentially be abrogated just like civil law. However, he argued that since the ius gentium originated from the consensus omnium gentium, the agreement of all nations, it could not be universally abrogated except by the same consensus, which was now impossible. Nevertheless, he conceded that it could be abrogated in part, because (and here Vitoria followed a standard position) the law permitting the enslavement of captives in a just war had been abrogated among Christian nations.39 Two Dominican theologians of the next generation, Bartolomé de Medina and Domingo Bañez, confronted the issue of abrogation not merely in the context of this specific example, but also by asking per se whether the ruler of one commonwealth had the power to abrogate the ius gentium within his commonwealth.40 Bañez’s careful response began by distinguishing between a kingdom and its king. For the abrogation of an element of the ius gentium, he argued, the consent of the entire kingdom was necessary, even if the king were an absolute monarch. This is because it is in the interest of the kingdom as well as the king to enjoy the benefit of the ius gentium, and therefore the power to renounce it must lie with both of them rather than with the king by himself. Nevertheless, with that proviso, it would be licit—​albeit he would commit a mortal sin in so doing—​for the king to outlaw private property among his subjects, that is, an element of the ius gentium within his own commonwealth. However, the king could not unilaterally abrogate a provision of the ius gentium that applied between commonwealths, for example the inviolability of ambassadors. Nevertheless, he could do so with the consent of the other party or parties. Without reaching the formal position of Suárez, therefore, Bañez’s discussion of abrogation put pressure on the traditional, unitary concept of the ius gentium, which included elements of what we would now call both private and public law. Unilateral abrogation on the part of one nation was possible in 37   Fernando Vázquez de Menchaca, Controversiarum illustrium libri tres (Frankfurt: 1572), Lib. II, cap. 88, n. 25. 38  Suárez, De legibus, Lib. II, cap. 19, n. 9. 39  Vitoria, Comentarios a la Secunda secundae, q. 62, a. 3, n. 5. 40  Bartolomé de Medina, Expositio in primam secundae angelici doctoris D. Thomae Aquinatis (Venice: 1580), q. 95, a. 4; Domingo Bañez, Decisiones de iure et iustitia (Venice: 1595), q. 57, a. 3.

annabel s. brett   79 the case of things that concerned individuals within the kingdom—​for example, private property—​but not in the case of things that concerned relations between commonwealths. It is noticeable, however, that in both cases Bañez’s discussion is framed purely in terms of abrogation. He adhered, that is, to the fundamental idea that the ius gentium has already come into being, entire, and thus can only now be altered through abrogation; he does not envision any new precept of the ius gentium being generated. His work encountered a mixed response. Suárez’s almost exact contemporary, the Jesuit Juan de Salas, dismissed Bañez’s reasoning. Both private property and servitude, he argued, are not commands of the ius gentium, but only permissions or rights that are held under it. There is no problem, therefore, in individual nations or Christian nations collectively ceding their right to enslave captives. If servitude in war were a command, it could not be abrogated except either by the universal consent of the human race, or by the authority of the Pope, whose care of spirituals allows him to abrogate or to dispense in the ius gentium. Just as for Bañez, however, it is noticeable that these rights have already been given under the ius gentium, and thus renouncing them does not represent a change in the ius gentium, but is contained within it.41 By contrast, Suárez’s notion of custom theoretically allowed for open change, even within the ius inter gentes. However, he argued that it was in practice (‘morally’) impossible for a new custom to be adopted in so widespread a fashion as universally to alter the ius inter gentes. What was possible was for it to be changed ‘in part’. But he conceptualized such ‘change’, yet again, as the negative change involved in not keeping a part of the ius gentium. His only example, moreover, was the familiar one of the Christian practice of not enslaving captives in war, and he attributed this not to multiple Christian nations agreeing among themselves, but to the ‘ancient custom of the Church’ which had generated ‘a special law of the faithful people’, gens fidelis.42 He did not further explain how one nation (gens) can lawfully unilaterally alter a precept of the ius gentium in its public, inter-​commonwealth dimension.

V. Conclusion The foregoing considerations should sufficiently have shown that, although interesting questions of authority and of origins can be raised concerning the ius gentium in the handling of late scholastic authors, the notion of the sources of international   Juan de Salas, Tractatus de legibus (Lyon: 1611), Q. 91, Tract. 14, fo. 40.  Suárez, De legibus, Lib. II, cap. 20, nn. 7–​9.

41

42

80    sources in the scholastic legacy law cannot straightforwardly be applied to their thought. It is not merely because they did not have any formal doctrine of ‘sources’ in the modern sense. It is also, and more fundamentally, because they did not think of the ius gentium as ‘international law’ in the modern sense. The distinctive temporal framing of the ius gentium that dominates much of the late scholastic discussion precludes that. Two authors we have looked at, Gabriel Vázquez and Suárez, did—​in very different and indeed opposing ways—​suggest routes out of the old way of thinking. And yet the former’s suggestion found very few supporters, even if Hugo Grotius’ placing of just war (as opposed to formal war) within a natural rights framework was not, in fact, so very far distant; while the latter could not find any concrete procedures for making international law in the modern age apart from the unilateral custom of one ‘faithful’ nation, the Church. In this sense, the ius gentium and its sources in late scholastic thought must serve as a counterpoint to later conceptions, rather than as part of a continuous history.

Research Questions • How do writers of the second scholastic conceive of time in relation to the ius gentium (law of nations)? • How do writers think about ‘authorities’ in the specific context of the ius gentium?

Selected Bibliography Belda Plans, Juan, La escuela de Salamanca y la renovación de la teología en el siglo XVI (Madrid: Biblioteca de Autores Cristianos, 2000). Brett, Annabel S., Changes of State. Nature and the Limits of the City in Early Modern Natural Law (Princeton: Princeton University Press, 2011). Brett, Annabel S., ‘Later Scholastic Philosophy of Law’, in Fred D. Miller and Carrie-​Ann Biondi, eds, A History of the Philosophy of Law from the Ancient Greeks to the Scholastics, 2nd edn (Dordrecht: Springer, 2015), 335–​75. Brieskorn, Norbert, and Gideon Stiening, eds, Francisco de Vitorias ‘De indis’ in interdisziplinärer Perspektive. Interdisciplinary Views on Francisco de Vitorias ‘De indis’ (Stuttgart-​Bad Cannstatt: Frommann-​Holzboog, 2011). Bunge, Kirstin, Anselm Spindler, and Andreas Wagner, eds, Die Normativität des Rechts bei Francisco de Vitoria. The Normativity of Law According to Francisco de Vitoria (Stuttgart-​ Bad Cannstatt: Frommann-​Holzboog, 2011).

annabel s. brett   81 Bunge, Kirstin, Stefan Schweighöfer, Anselm Spindler, and Andreas Wagner, eds, Kontroverse um das Recht. Contending for Law. Beiträge zur Rechtsbegründung von Vitoria bis Suárez. Arguments About the Foundation of Law from Vitoria to Suárez (Stuttgart-​Bad Cannstatt: Frommann-​Holzboog, 2012). Deckers, Daniel, Gerechtigkeit und Recht. Eine historisch-​ kritische Untersuchung der Gerechtigkeitslehre des Francisco de Vitoria (1483–​1546) (Freiburg: Herder, 1992). Decock, Wim, Theologians and Contract Law: The Moral Transformation of the Ius Commune (ca. 1500–​1650) (Leiden: Brill, 2013). Fidora, Alexander, Matthias Lutz-​Bachmann, and Andreas Wagner, eds, Lex und ius: Beiträge zur Begründung des Rechts in der Philosophie des Mittelalters und der Frühen Neuzeit. Lex and ius: Essays on the Foundation of Law in Medieval and Early Modern Philosophy (Stuttgart-​Bad Cannstatt: Frommann-​Holzboog, 2010). Haggenmacher, Peter, Grotius et la doctrine de la guerre juste (Paris: Presses universitaires de France, 1983).

Section  I I

SOURCES IN THE MODERN TRADITION

Chapter 3

SOURCES IN THE MODERN TRADITION AN OVERVIEW OF THE SOURCES OF THE SOURCES IN THE CLASSICAL WORKS OF INTERNATIONAL LAW

Dominique Gaurier

I. Introduction Early writers on what is presently referred to as international law are not numerous. In general, these authors were mostly concerned with the law of war and the law of peace. They also addressed related matters, such as the rules concerning diplomats and diplomacy, frontiers, neutrality, prisoners, hostages, questions about treaties, and other related topics. These works and authors were situated in countries and cultures very different from our own, and their intellectual and cultural assumptions must be read in that context. This equally applies to an examination of the sources they used. These authors did not work in the same mode of thinking that we presently follow and were generally consulting many and sundry sources available in their times, almost none of which were grounded in international European practice. Their approach

86    sources in the modern tradition was more theoretical than practical. They did not hesitate to resort to their common knowledge, especially Roman or canon law, and rarely referenced the actual practice of the nations. Practice was only referred to when nothing could be found in the traditional sources they were consulting. Every author had their own concern and explained it through their personal views, which were taken from their own cultural context, irrespective of their reliance upon natural law. It is therefore necessary to look into the sources of the sources that inspired the authors of the classical works on international law. While natural law was long a well-​renowned source inspiring many of these authors, other sources also contributed to the doctrines postulated in their respective works. These sources can be identified as follows: first, Roman law; secondly, canon law; thirdly, history of the Antiquity or extracted from the Bible; and, eventually, modern and contemporaneous history. While authors from the sixteenth and seventeenth centuries were deeply connected with natural law, natural law does not have the same place in all their works. Some authors, especially those from the seventeenth century, became indifferent to it. Other authors, who preferred to look at the law of their own country, can be called adherents to the so-​called national school of international law; the eighteenth-​century author Cornelius van Bynkershoek (1673–​1743) provides the best example. This last group of authors looked more at the rules considered as well as established in the common practice of European countries, which, in their view, constituted the real grounding of the European law of nations. Many were also inspired by their predecessors, sometimes very clearly, sometimes more obliquely. This contribution examines each of these sources and attempts to establish a kind of classification highlighting how each author engaged with them.

II. Roman Law It is well known that Roman law was the main source of law in continental European countries. Less well known is that Roman law had been interpreted by the various commentators from the thirteenth to the sixteenth centuries and had become a so-​called ‘learned law’, readapted as necessary to address contemporary challenges. Even England did not totally escape this influence, as seen in the seminal work of Henry of Bracton (1210–​1268) entitled On the Laws and Customs of England, where he made great use of the twelfth-​century glossator, Azo.1 All authors commonly referred to Roman law as ratio scripta, i.e. the highest art of rational law.   The question was discussed at length by Frederic W. Maitland in Select Passages from the Works of Bracton and Azo (London: Selden Society, 1895), p. xiv, where Maitland states that Bracton was using 1

dominique gaurier   87 Roman law was certainly the first source of inspiration for the authors of works on international law who were mainly interested in the law of war and peace. This was the case with Pietrino Belli, Alberico Gentili, Hugo Grotius, Richard Zouche, and, to a certain extent, also with Bynkershoek. Pietrino Belli (1502–​1575) was a military justice in Italy, in the army of the king of Spain, Philip the Second, after which he joined the Duke of Savoy to serve as his counsellor. He published his work De re militari et bello in 1563. He reviewed about 1,600 cases taken from his own experience, probably decided by himself or by some of his colleagues. He very often solved the issues arising in these cases with the help of Roman law, and primarily Roman law as understood in the works of commentators from the thirteenth century onwards, such as Bartolo, Baldo, Cino de Pistoia, Curzio, and De Afflitto, among others. Roman law was taken either from the Digest or from the Code of Justinian, as interpreted by those commentators. All through his work, Belli quoted many references taken from these major Roman law sources and generally treated them as applicable positive law in his time. This approach was largely in keeping with his formation in the Italian law schools teaching Roman law as a common law for the diverse Italian principalities. The role of Roman law was even more apparent in the Three Books on the Law of War by Alberico Gentili (1552–​1608). The first question he asked in the beginning of that work was ‘Quid juris?’ or, ‘What of the law?’. Soon after his arrival to England, Gentili was appointed Regius Professor of Roman law at Oxford, and was consequently very well acquainted with Roman law. The first work he wrote was devoted to Roman law as interpreted by the traditional commentators such as Bartolo, Baldo, and others.2 Because no rules were well established to govern the relationships between European nations, when Gentili wrote his seminal work on the law of war he considered Roman law to be the most practicable law to apply. Roman law was then seen as a kind of jus commune of the European countries. While Gentili mostly referred to the Digest and the Code of Justinian, he also relied upon the interpretations of a great number of ancient or contemporary commentators, some of them from the late fifteenth or sixteenth centuries, and very often the same ones as used by Belli. This use of the opinions held by commentators was much more prevalent in his last book, Hispanicæ advocationis libri duo, posthumously published by his younger brother Scipio.3 Gentili’s use of commentator’s opinions, however, is not as slavish as many thought, as he reinterpreted these opinions in connection with questions presented to him at the time. Hugo Grotius (1583–​1645) published two works on international law. The first addressed the liberty of the sea, Mare liberum (1609); the second concerned the very only elementary textbooks and not the Corpus juris civilis itself, being therefore unprepared to understand a more complex literature on Roman Law.   Alberico Gentili, De juris interpretibus dialogi sex (London: Apud Johannem Wolfium, 1582).   Alberico Gentili, Hispanicæ advocationis libri duo (Hanau: Apud Guilielmum Antonium, 1613).

2 3

88    sources in the modern tradition classical area of the law of war and of peace, De jure belli ac pacis libri tres (1625).4 Mare liberum is a chapter taken from a more comprehensive book on prizes and booty which was never published, De jure prædæ.5 That book dealt with a question asked by the East Indian Company of Holland concerning the capture of a Portuguese merchant ship by Dutch ships in the Strait of Malacca. When Grotius decided to publish ­chapter 12 of this work, he completely rewrote it as an independent volume. In the manuscript, some chapters in the beginning of that work concerned the law of just war and entailed many elements that he reused in his master work, The Law of War and of Peace, which was published some years later, in 1625. Yet, it is difficult to accept The Law of War and of Peace as a pure work on international law, because it addresses many other unrelated topics, such as contracts, goods, the law of graves, and penalties. All these matters gave Grotius an occasion to explore in greater depth his method of reasoning from human nature. Even though questions belonging to international law were not absent, it would be disproportionate to consider this to be the major source of modern international law and to consider Grotius the Gründungsheros of international law, as maintained by Frantz Wieacker.6 It seems more accurate to see Grotius as the Gründungheros of the modern school of natural law, which locates the source of natural law in human nature, as opposed to God’s commands. Which is not to say that Grotius rejected God—​he was certainly not a laïcist—​but he nevertheless secularized and modernized the old religious classical conceptions of natural law. Grotius addressed many issues exclusively through the prism of Roman law, and he often quoted from the Digest to suggest some solutions which he viewed as both reasonable and possible. In his view, Roman law was the most reasonable pattern and offered the most reasonable answers to many questions. In this sense, Grotius is probably the last of these authors still in connection with the traditional Roman culture coming from the Middle Ages. In many respects, Grotius can be considered a go-​ between in that he took both the past and the present into account, as evidenced by the title of his major work.7 At the same time, he also launched a new way of reasoning, in which the human being became the centre of the actual reflection, rather than referring to any specific idea of God. His preliminary chapter states it clearly: ‘etsi Deus non daretur’, ‘as if there were no God’.8 Richard Zouche (1590–​1660) taught at Oxford as a professor of Roman law and succeeded Gentili in this function. He published his work on international law in 1650 under the Latin title Juris et judicii fecialis, sive juris inter gentes, et quæstionum

4   Hugo Grotius, De jure belli ac pacis libri tres, in quibus jus naturæ et gentium, item juris publici præcipua explicantur (Paris: 1625). 5   Hugo Grotius, De jure prædæ, ed. H.-​G. Hamaker (The Hague: Martinus Nijhoff, 1869). 6   Frantz Wieacker, Privatrechtsgeschichte der Neuzeit, 2nd edn (Göttingen: Vandenhoek & Ruprecht, 1967), p. 299. 7 8   See Grotius, De jure belli ac pacis.   ibid., Prolegomena, para. XI.

dominique gaurier   89 de eodem explicatio.9 Although Zouche was a Roman lawyer, citations to Roman law in that work, if not absent, are quite rare. As a consequence of his teachings at Oxford, Zouche relied on the traditional commentators of Roman law as well, though not as frequently as Gentili. His work, which is the first to address the law of peace before the law of war, is especially interesting for its method of exposition of the different matters, which reflects the influence of Roman law. Zouche begins with what he calls jus (settled questions), followed by judicium (controversies), status (the conditions prevailing between human beings and their nations in times of peace and war), dominium (questions of sovereignty and property), debitum (obligations), and delictum (torts). This method demonstrates a technical point of view extracted from Roman law. As for the necessity for familiarity with the law, authors who were writing about diplomatic affairs or who were themselves diplomats rarely appealed to legal knowledge, except for two:  the French author Jean Hotman (1552–​1636), in his work Du devoir de l’ambassadeur, thought it necessary for an ambassador to have some knowledge of his country’s public law,10 and the German author Hermann Kirchner (1562–​1620) particularly insisted on the necessity of knowing public law for an ambassador in his Legatus published in Latin in 1604.11 But, except for these two figures, authors who were speaking of diplomacy never considered it necessary to hold a pure technical knowledge in any given field, not even the knowledge of the language of the country to which they served as emissaries.

III. Canon Law Some of these authors also appealed to canon law. As with Roman law, canon law was used through the commentators’ interpretations and also constituted a ‘learned law’. The first authors were themselves members of the Catholic Church, such as Francisco de Vitoria (1480–​1546), a Dominican predicator, or Francisco Suárez (1548–​1617), a Jesuit. Although Vitoria greatly respected his faith, he nevertheless recognized a strict separation between the spiritual and the temporal powers: the former concerned only spiritual matters and did not interfere with the latter; he posited a true balance of the two powers which maintained their respective   Richard Zouche, Juris et judicii fecialis, sive iuris inter gentes, et quaestionum de eodem explicatio (Oxford: 1650). 10   See Laurent Bouchel, La Bibliothèque ou Trésor du droit françois (Paris: Jacques d’Allin, 1667), vol. I, p. 144, col. 2. 11   Hermann Kirchner, Legatus (Lich: 1604), II, cap. 1, nb 95. 9

90    sources in the modern tradition autonomy. As a theologian, he made use of the collection of the Decretals and other collections of the Pontifical legislation.12 Suárez, however, was more concerned with theological questions and insisted more on religious matters than on material ones. He was certainly not a jurist and presented moral considerations based on theology or on other canonical sources in his major work, De legibus et Deo legislatore.13 While it may seem more surprising, Belli, a lay author, also relied heavily on canon law. As mentioned above, Belli was a military judge. He seems to have been totally disappointed with the cruelty of his contemporary world which had come to reject the old idea of a pacific Respublica christiana. Canon law reflected the time where the world was ruled by the pacific government of the Roman Church and the wise direction of the popes. For Belli, this was much preferable to, and contrasted sharply with, the harsh and cruel competition between States, which he perceived as the inhuman consequence of the demise of the traditional Christian values. As a result, he constantly recalled the Decretals of the Popes of Rome, which were enforcing those Christian and immortal values. In a certain sense, Belli remained a man attached to a long medieval and moral past which was by that time irreversibly disappearing. Gentili is famous for his peremptory injunction launched to the theologians in general: ‘silete theologi in munere alieno’ (‘keep silence, theologians, in what concerns the charge of others’).14 Nevertheless, no matter how strong a Protestant he could have been, he did not hesitate to cite from the old Decret of Gratian or from the Decretals of the Roman Popes. While this may seem inconsistent, other contradictions are also present in his work. While Roman law remained his major source, he also relied not only on the history of the Antiquity, like the majority of authors, but also on contemporary history, to which he appealed to provide support for many of the examples he cited. As a result, Gentili can clearly be classified among the pre-​positivist authors and his long stay in England certainly had a profound influence on him. By the seventeenth century, canonical sources were increasingly abandoned and it became rare to find an author who relied on such sources. At the beginning of the seventeenth century, Grotius seems to have been an exception with his frequent references to authors from the second scholastic, such as Mariana or Vasquez de Menchaca on the theme of sovereignty, or to canon law itself taken from the Corpus juris canonici, especially in his work on prizes and booty, De jure prædæ.

12   Æmilius Friedberg, ed., Corpus juris canonici (Leipzig: 1881). That collection includes the Decretum Gratianum, the Decretals, the Sext, the Clementins, and the Extravagants. 13   Fransisco Suárez, Des lois et du Dieu législateur, trans. Jean-​Paul Coujou (Paris: Dalloz, 2003). The original work was published in Coimbra in 1612. 14   Alberico Gentili, Les trois livres sur le droit de la guerre, trans. Dominique Gaurier (Limoges: Presses universitaires de Limoges, 2012), p. 132.

dominique gaurier   91

IV.  Customary Law and Treaties It was very rare, though not unheard of, for classical authors to refer directly to customary law. Generally, they were speaking about the ‘laws of war’, intending to refer to the customs practiced during the war. Even if customary law was neither considered nor qualified as a real source of international Law, some authors, such as Belli or Gentili, authored chapters of their works indicating that custom could provide a legal ground for the war.15 Nevertheless, none of the authors clearly expressed that customary law could be a source of international law, even in their analyses of the law of war. Grotius and those who followed him saw in customary law the practice accepted by some peoples, but considered it impossible to say how it was introduced or to identify its specific constitutive elements. Custom, however, was never relied upon in considering the decision of whether to wage war, but, instead, in relation to the crimes committed on the battlefield. Grotius clearly said that customary law could never be taken as the ‘law of nations properly said’.16 At the end of the seventeenth century, only one author declared that custom was a source of international law: in his short dissertation De jure gentium, Samuel Rachel (1628–​1691) clearly stated that custom was one of the sources of international law.17 In that respect, he seems to have been unique in his time and can be classified among the so-​called positivists. In the same way, treaties were never approached as a source of the law of nations. Their binding force for the nations which signed them was often debated, but never as a true source of the law of nations. Grotius is once more very clear on this point, as he specifies that a treaty is only a part of the voluntary law of nations, which means that treaties, as contracts made between two nations, are binding only for the consenting States.18 The vocabulary which Grotius uses is clear: he speaks of sponsions (promises), and explains that such treaties, even if they could be called public, concerned alliances, peace, or commerce.19 He never considered that treaties were a real source of international law and tended to address them from the point of view of a private law jurist. What was said about Grotius is equally true for the other authors up to the end of the seventeenth century. It was not until the following century, when the matter of international law became less theoretical and more practical, that the question of the   See Pietrino Belli, De re militari et bello (Venetiis: 1563); Alberico Gentili, De jure belli libri tres (London: 1585). 16   See Hugo Grotius, Le droit de la guerre et de la paix, trans. Paul Pradier-​Fodéré (Paris: Presses universitaires de France, 1999), liv. II, chap. VIII, I. 2, p. 285. 17   See Samuel Rachel, ‘Dissertatio altera de jure gentium’, in De jure naturae et gentium dissertations (Kiel: Johannes Reumann, 1676), sec. II and III, 233‒4. 18   See Grotius, Le droit de la guerre et de la paix, liv. III, chap. I, I, p. 784. 19   See ibid., liv. II, chap. XV, VI. 1–​3, p. 382. 15

92    sources in the modern tradition true sources of that law became a focus. It was only at the end of the seventeenth century that authors began to set natural law aside and preferred to argue on the positive sources of the European law of nations throughout the common practice of the nations; from then on, treaties were seen as the only sources of international law (see section VI: Natural Law versus Positive Law). Rachel certainly set a milestone on that path when he clearly affirmed that treaties were the second source of international law.20 Notably, Zouche recognized custom as a source when he defined the law of nations in the beginning of his work, saying that the law of nations was what was received with reason by the common consent of a large number of nations, that is, by custom: ‘[a]‌nd must be held for a law between nations, outwards the common customs, what on which the peculiar nations did agree between themselves with other peculiar nations, such as agreements, conventions and treaties’.21 He then added that the law of nations was also established by what was commonly agreed, that is, by treaties.22 In support of his definitions, he quoted the Institutes of Gaius as summarized in the Digest of Justinian,23 but he did not further elaborate on this question. Zouche is certainly a positivist, in that he did not consider that the law of nature had a place in international law. Rachel, in his dissertation De jure gentium, explored the origins of the law of nations, which were taken from the Roman jus feciale, as it appeared in the work of Zouche. He firmly asserted that ‘the Law of Nations is founded on the agreement of Nations. For one State has no authority over another, nor one free people . . . By means of that Law, [the Nations] are formed into a Society and are bound to one another.’24 Rachel then asserted very clearly that this arbitrary law was based on two fundamental sources: international custom and treaties. In these customs, Rachel read an implicit consent of the States, because they are free and cannot conclude agreements otherwise than with mutual consent. The law coming from the treaties solely bound the States which consented to them, creating a sort of specific law of nations which could be developed into a more general law. This view is ultimately very modern.   See Samuel Rachel, Secunda dissertatio, De jure gentium (Kiel: 1676), para. I, pp. 233–​4.   See Richard Zouche, Juris et judicii fecialis, part 1, sect. 1, p. 2. See also, Richard Zouche, Explication du droit entre les nations, trans. Dominique Gaurier (Limoges:  Presses universitaires de Limoges, 2009), p. 38. 22   See Zouche, Juris et judicii fecialis, part  1, sect. 1, p.  1; Zouche, Explication du droit entre les nations, p. 37. 23   D. 1, 1, 9, extract of the Institutes of Gaius, bk I: ‘All people governed under laws and customs observe in part their own special law and in part a law common to all men. The law that each nation has set up for itself is special to that particular civitas and is called jus civile, civil law, as being that which is proper to the particular civil society. By contrast, that law which natural reason has established among all human beings is among all observed in equal measure and is called jus gentium, as being the law which all nations observe’ (translation by author). 24   See Samuel Rachel, Dissertations on the Law of Nature and of Nations, trans. John Pawley Bate (The Classics of International Law) (Washington: Carnegie, 1916), vol. 2, paras. II–​III, p. 157. 20 21

dominique gaurier   93

V.  The History of the Antiquity and Modern History For most classical authors, Biblical, Greek, and Roman history is a major collection of exempla. Ancient history was then thought as an unsurpassable pattern and served very often as a reserve of the best examples, if not as a real source, for reference in modern times. It was seen as offering not only pictures of an exalted past, but also as useful for the present times which still had to be inspired by such examples. The exempla given by the ancient historians are meant to reveal both an indelible wisdom and the voice of natural reason. Thus, ancient history can offer lessons, and even rules, for the future. It is very rare, however, to read an author who affirmed the importance of knowing modern history. The best example is certainly Grotius, who never referred to modern history. His preferred focus on ancient history, however, leaves the work operating on a very theoretical level and the reader may feel lost in abstractions without any contact with material reality. Of the authors who were dealing with diplomatic law, very few of them considered modern history to be a necessary body of knowledge for diplomats. All made a great use of ancient historians, either Greek or Roman, such as Polybius, Titius-​ Livius, Dio Cassius, Quintus Curtius, or Xenophon. Among the sixteenth-​century authors, almost all of whom were lawyers themselves, ancient history was considered more relevant than modern history because it was thought to give ambassadors a catalogue of the best exempla from which to choose when addressing their contemporary challenges. With the exception of Jean Hotman, who was convinced that modern history was more useful for an ambassador than ancient history (even though he also referred to ancient history in his writings), the majority of other authors considered historical materials to be a supply of examples from which to draw support for their reasoning, but not a ‘source’ of law.

VI.  Natural Law Versus Positive Law Between the sixteenth and seventeenth centuries, the meaning of natural law evolved. Natural law was no longer conceived as the law coming from God, but as the law written in the soul of mankind. This mutation occurred progressively, and its starting point was certainly the seminal work De jure belli ac pacis by the

94    sources in the modern tradition prominent Hugo Grotius. As explained above, in this book Grotius expounded the method of a secularized natural law much more than he wrote a book on international matters. He attempted to structure a new method of reasoning which placed the human being, rather than God, at its centre. That is certainly not to say that Grotius rejected God as such, but he thought that the divinity was no longer necessary for determining how to rule the affairs of mankind. Rather, it was reason, which Grotius viewed as a gift from God, that was to be used for that purpose. That point explains clearly why Grotius’ work was more of a methodological treatise than a treatise about international law. In this respect, the influence of that work was fundamental because it based continental civil law on natural law conceived as a law giving mankind its autonomy. Among Grotius’ followers, Samuel von Pufendorf (1632–​1694) was widely perceived to be his intellectual heir; this opinion, however, has to be revised, because Thomas Hobbes’ influence on Pufendorf is certainly much more conspicuous. Pufendorf followed Grotius when he affirmed that international law was a secular law. He considered international law to be part of civil law insofar as the latter was reasonable and equitable, but he differed from Hobbes in that he thought that international law did exist, an idea rejected by Hobbes. There were real positivists among the seventeenth-​century authors, especially Zouche, Rachel, and Johann Textor (1638–​1701). One must perhaps also add the great Gottfried Wilhelm Leibniz (1646–​1716) to this enumeration, even if he was not strictly an internationalist. Nevertheless, in prefacing his Codex juris gentium diplomaticus in 1697, Leibniz affirmed that having knowledge of the sources was absolutely necessary not only for those interested in history, but also for those interested in States’ affairs, because, he argued, the acts passed between the States were the best sources of knowledge of how an issue had been confronted in the past and thus, useful also for what could be done in the present.25 It is more difficult to classify the views of Gentili, who could be taken as a precursor of positivism, because he very rarely referred to the law of nature as a true source of the law of war. At times, he quoted the law of nature or referred to it, but more as an appeal to reasonableness than as a source. He saw in Roman law the true legal source which he had to use in attempting to establish a corpus of legal rules. But he never distinguished other specific sources as such, like treaties or international custom. What is meant by the terms ‘positive’ or ‘substantive’ law? In English, the expression is very often translated as ‘statutory’ law, but this does not exactly convey what opposes natural law and positive law. Natural law refers to an intellectual conception of the law as written in the souls of human beings. Positive law refers to a more practical view of the law as enacted in a statute or stipulated in a contract. The law   See the preface to the reader in Gottfried Wilhelm Leibniz, Codex juris gentium diplomaticus (Hannover: Apud. Joh. Christoph. Meisnerum, 1693) (unpaginated). 25

dominique gaurier   95 of contracts refers to two legal institutions, the custom and the contract, or, in other words, the treaty. In international law, the first one is a major source of law, and the treaty, a sort of international contracts between nations, is the second one, as seen above in section IV: Customary Law and Treaties. The last two authors, Rachel and Textor, rejected the law of nature as a valid source of international law. Zouche also did not use the law of nature as a possible criterion which could influence the law of peace and war. As seen above, Zouche and Rachel were only two authors in the seventeenth century who especially insisted on positive law rather than on natural law. For Rachel, there is no place at all for natural law, because ‘[i]‌t is clear, then, that the Law of Nations in the proper sense is a species of Arbitrary Law, and a very important species too, and that is quite wrong to confuse the Law of Nations with the Law of Nature’.26 The second author, Textor, is the maternal great-​great grandfather of Goethe. He published his Synopsis juris gentium two years after Rachel’s dissertation.27 His conception of the relation between the law of nature and the law of nations was different to Rachel’s. He treated the law of nature as a part of the law of nations, asserting that the sources of the law of nations were, first, ‘reason, which, as the proximate efficient cause, dictates to the various nations that this or that is to be observed as Law among the human race, secondly the Usage of nations, or what has been in practice accepted as Law by the nations’.28 He then went on to rely on Grotius to assert that: A Law of nations is impossible without this mutual obligation, contained in a pact, too, and even although the matter has been dictated by reason and received as Law by nations; for, [Grotius] says, this would rather be an extension of the Civil Law of diverse States, such as they can individually abolish.29

To sum up, Textor did not abandon the law of nature as drastically as Rachel, but he clearly recognized that the two sources of international law were actually custom and the agreements between the nations as an extension of their own civil law (i.e. treaties). He continued to rely on Grotius, whom he quoted very often. Nevertheless, Textor can be counted among the positivists because he focused on the same sources as Rachel. Although Textor’s work, with his ‘old-​fashioned’ attention to Grotius, was perceived to offer a more profound analysis than that of Rachel, it is to be remembered that Rachel’s work, while less developed, also represented a significant contribution. Because of this, Textor certainly appeared less modern than Rachel.

  See Rachel, Dissertations, para. IV, p. 158.   Johann Textor, Synopsis juris gentium (Basel: 1680). 28   See Johann Textor, Synopsis of the Law of Nations, trans. John Pawley Bates (The Classics of International Law) (Washington: Carnegie, 1916), vol 2, chap. 1, nb 2, p. 1. 29   See ibid., vol. 2, chap. 1, nb 7, p. 3. 26 27

96    sources in the modern tradition

VII.  The Use of Personal Experience as a Practitioner Very few classical authors had personal experience in the area of international law. Almost all who did were diplomats, and two names can be quoted here. The first is Conrad Braun (1491–​1563), who wrote the first work on diplomatic law, which was published in Mainz in 1548.30 He was employed as a diplomat between German princes long before the crisis of the Thirty Years War. He could then focus on his own experience as a Catholic priest in the German world, whose unity was being quashed by the protestant reform. His work is not only very acute and well organized, but it also sheds light on the traditional constitution of the German Empire before the Thirty Years War. Carlo Pasquali, who was ambassador in the Swiss province of Grisons, deserves to be quoted as well. Unfortunately, he never relied upon his own experience and preferred to pile up general considerations without any reference to the role he played as an ambassador serving the kingdom of France. As a reflection of his privileged education, he essentially focused on general issues to which he annexed numerous references to the ancient Greek or Roman literature. It may also be useful to examine the perspectives of two authors who were considering these issues in their roles as military justices. The first one is Belli, who was mentioned above. He served as a military justice for the troops of the Emperor Charles the Fifth of Spain and his son, Philip the Second, after which he served for the troops of the Duke of Savoy in Piemont. The book he wrote is much more a collection of cases he judged—​some 1,500 of them—​than a work on international law proper.31 The format of his book allowed it to be taken in a pocket and consulted when necessary. Belli can be classified as a ‘military’ author. The second military figure is Baltazar de Ayala (1548–​1584). He was born in Antwerp in northern Belgian Flanders at the time when the seven northern provinces of the Netherlands were attempting to escape from Spanish power. He also served as a military justice in the troops of the Prince of Parma, Alexander Farnese, well known for the atrocities he committed in the southern provinces of the Netherlands during the war against the Spanish army. He provided first-​hand

  See Conrad Braun, De legationibus libri quinque (Mainz: Ex officina Francisci Behem, 1548); see also, Conrad Braun, Les cinq livres sur les ambassades, trans. Dominique Gaurier (Limoges: Presses universitaires de Limoges, 2008). 31   See Belli, De re militari et bello. 30

dominique gaurier   97 information on the civil war which ruined the southern Belgian provinces, and he was certainly the best direct witness of it.32

VIII. Conclusion The last question to be asked as a conclusion is to examine how the thoughts of these authors affected or influenced the present-​day doctrines of international law. The first thing worth mentioning is that in the beginning of the nineteenth century, the doctrine’s writings kept some important previous tracts, almost from the work of Emer de Vattel, which provide a good summary of the actual international practice of the European States.33 The major part of the ancient authors was considered to be as founding figures, if at all, but their writings fell in disuse. Their role was appreciated much later, especially by the contemporary doctrine of international law. With the exception of Gentili, who saw himself as a pioneer, these authors rarely thought of themselves as precursors. In the second part of the nineteenth century, international matters experienced a rapid revolution in the wake of new problems such as the colonization of African and Asian countries. The ways of making war were also revolutionized, and the First World War led to the creation of an international organization, the League of Nations. New doctrines appeared, relying now on sociology, a new science which prompted a reassessment of traditional concepts and debates such as nation vs citizen, or the role and place of States as nations. Ancient authors became totally inadequate for these new questions, which necessitated new methods and new regulations. It is certain that these early authors were never conscious of having set a starting point in these debates. They had clarified some aspects of international law that were relevant to their societies and their times. Grotius is perhaps an exception, since he endeavoured to develop a set of rational principles and methods which would be perpetually valid, but which is in fact very dated and turned out largely to correspond to the intellectual queries of the seventeenth century. The decline of the law of nature understood as a fundamental source of the law of nations would still unfold over a long period, and it is still not clear that this disconnection has actually been fully achieved, given the current revival of concepts which were thought   See Balthazar de Ayala, De jure et officiis bellicis, et disciplina militari, libri tres (Duaci: Ex officina Joannis Bogardi, 1582). 33   See Emer de Vattel, Le droit des gens ou principes de la loi naturelle (London: 1758). 32

98    sources in the modern tradition to have been abandoned, particularly the criterion of just war invoked in so many occasions today. This tendency appears very worrying because it might be seen as a true regression of thought.

Research Questions • Is the classification of the themes used by the authors the most difficult research question, because none of them were addressing considerations issued from practice but generally building a purely theoretical inquiry? • What were the most seminal elements characterizing those authors, and do they provide a compelling overview of the sources of the sources in the classical works of international law?

Selected Bibliography Braun, Conrad, Les cinq livres sur les ambassades, trans. Dominique Gaurier (Limoges: Presses universitaires de Limoges, 2008). Fassbender, Bardo, and Anne Peters, eds, The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012). Gaurier, Dominique, Une histoire du droit international de l’Antiquité à la création de l’ONU (Rennes: Presses universitaires de Rennes, 2014). Gentili, Alberico, Les trois livres sur le droit de la guerre, trans. Dominique Gaurier (Limoges: Presses universitaires de Limoges, 2012). Gentili, Alberico, Les trois livres sur les ambassades, trans. Dominique Gaurier (Limoges: Presses universitaires de Limoges, 2015). Grotius, Hugo, Le droit de la guerre et de la paix, trans. Paul Pradier-​Fodéré (Paris: Presses universitaires de France, 1999). Haggenmacher, Peter, Grotius et la doctrine de la guerre juste (Paris: Presses universitaires de France, 1983). Pasquali, Carlo, L’ambassadeur, trans. Dominique Gaurier (Limoges: Presses universitaires de Limoges, 2014). Rachel, Samuel, ‘Deux dissertations sur le droit de la nature et des gens’, ‘Seconde dissertation sur le droit des gens’, trans. Dominique Gaurier (Université de Nantes, unpublished). Zouche, Richard, Explication du droit entre les nations, trans. Dominique Gaurier (Limoges: Presses universitaires de Limoges, 2009).

Chapter 4

SOURCES IN THE MODERN TRADITION THE NATURE OF EUROPE’S CLASSICAL LAW OF NATIONS

Randall Lesaffer

I. Introduction This chapter’s purpose is to offer insight into the nature and sources of the classical law of nations (1650–​1775) as it was understood by learned writers and practitioners of international relations at the time. It discusses the different formative sources of the classical law of nations and addresses the relative roles of scholarship and practice. As Peter Haggenmacher explained, the metaphor of a ‘source’ for the origins of legal rules only truly found its way into the literature of the law of nations with Hugo Grotius (1583–​1645).1 It was used sparingly throughout the seventeenth and eighteenth centuries. In this chapter, the term ‘source’ is given three different meanings. Its first meaning is that of an ‘informative source’, a finding-​place for information, inspiration, or authority for legal writers. Its second meaning is that of   See ­chapter 1 by Peter Haggenmacher in this volume.

1

100    sources in the modern tradition a ‘formative source’ of law, referring to law-​making processes and instruments, such as treaties or customs. Its third is that of the foundation of the binding character of a legal rule. In this meaning, it is referred to as a ‘source of authority’. A discussion on the formative sources of the classical law of nations needs to take account of its essentially dualist nature. Far more than the doctrine of formative sources (which only became a central concern of international legal theory during the heyday of legal positivism in the late nineteenth century),2 the relative places and interconnections between natural and positive law were at the heart of the theoretical endeavours of the classical writers of the jus naturae et gentium (‘law of nature and of nations’). The implications of the interplay of both bodies of law during the late seventeenth and eighteenth centuries and their relative weight for the scholars and practitioners of that day and age can only be fully understood from the perspective of this dualism’s historical roots in the literature of the previous century-​and-​a-​half. The discussion on the classical law of nations in section III: The Formative Sources of the Classical Law of Nations (1650–​1775) is therefore preceded by an exposition of the role of Renaissance jurisprudence (1500–​1650) in the transition from the late medieval jus commune (1100–​1500) to the classical jurisprudence of the jus naturae et gentium (1650–​1775). Section II: The Historic, Informative Sources of the Classical Law of Nations draws together the lines set out in the chapters by Haggenmacher, Annabel Brett, and Dominique Gaurier. It indicates how late medieval and Renaissance jurisprudence were major, informative sources of the classical law of nations while at the same time explaining the latter’s dualism as a new, partially secularized version of the old dichotomy between theology/​canon law and Roman law. Students of international law and its history have long and widely held that the European Early Modern Age was the formative period of modern international law and that its history is to be traced back no further than the writings of Grotius or his immediate sixteenth-​century precursors. In some form, these notions predate modern international law. They emerge in the works of some authoritative writers of the law of nations from the eighteenth century. These concurred in acknowledging that it was Grotius who had made the first steps towards forging the law of nations into an autonomous discipline of law, solely applicable to relations among independent polities and distinguished from natural law.3 Modern historiography has challenged and nuanced these understandings, but not overhauled them. To this day, the standard narrative of the history of   See ­chapter 5 by Miloš Vec in this volume.   Georg Friedrich von Martens, Précis du droit des gens moderne de l’Europe fondé sur les traités et l’usage, vol. I (Göttingen:  J.C. Dieterich, 1789), p.  8; Dietrich von Ompteda, Litteratur des gesammten sowohl natürlichen als positive Völkerrechts (Regensburg: Johann Leopold Montags, 1785; reprint Aalen: Scientia Verlag, 1963), p. 21; Christian Wolff, Jus gentium methodo scientifica pertractatum, 2 vols (1749, Classics of International Law, Oxford:  Clarendon Press/​Humphrey Milford, 1934), Praefatio; Robert Ward, An Enquiry into the Foundation and History of the Law of Nations in Europe from the Time of the Greeks and Romans to the Age of Grotius, 2 vols (Dublin: P. Wogan, P. Byrne, W. Jones, and J. Rice, 1795), pp. xii–​xiii. 2 3

randall lesaffer   101 international law retains the view that the European, Early Modern, so-​called ‘classical’ writers of the law of nations mark the beginnings of modern international law.4 This view has constrained historical research into international law in three different modes. While under the recent blossoming of the history of international law each of these three constraints has been unmasked and critically appraised, no alternative grand narrative has yet replaced the reductionist narrative of traditional historiography. First, the traditional narrative is Eurocentric. It presents modern global international law as the product of the European Early Modern Age which, through the double device of colonization and decolonization, was expanded over the globe. Over recent years, scholars have challenged this view by pointing at the formative role of the nineteenth-​century colonial encounter as a two-​sided process. However, this had done little to dislodge Early Modern European scholarship from its central place in the long-​term narrative.5 To the contrary, the ‘turn to empire’ in the historiography of international law has given it new currency.6 Secondly, the originating myth of Grotius and his predecessors has caused historians of international law to neglect prior developments,7 or to treat them as a preliminary.8 It has obscured the formative role of preceding legal scholarship, in particular that of the jus commune, the learned Roman and canon law from the Late Middle Ages, and almost completely ousted it from the historic narrative of international law.9 Thirdly, the study of the Early Modern law of nations has been largely conducted on the basis of the discussion of scholarly writings to the neglect of State practice.10 As there is truth in the claim that the writers of the 4   See e.g., Malcolm N. Shaw, International Law, 7th edn (Cambridge: Cambridge University Press, 2014), pp. 13–​7. 5  Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005). 6   See e.g., Andrew Fitzmaurice, Sovereignty, Property and Empire, 1500–​2000 (Cambridge: Cambridge University Press, 2014); Richard Tuck, The Rights of War and Peace. Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999). This chapter does nothing to break through the constrictions of traditional Eurocentrism. It is consciously limited to the classical law of nations of Europe. This is justifiable as the law of nations of the Latin-​Christian West was, and was considered by contemporaries, a self-​standing system with limited, regional application. This does not exclude that it was part of a more universal body of natural rules, nor that it was partly informed by Europe’s encounter with the outer-​European world. 7   See e.g., Wilhelm G. Grewe, The Epochs of International Law (Berlin: Walter de Gruyter, 2000). 8   See e.g., Stephen C. Neff, Justice among Nations. A History of International Law (Cambridge: Harvard University Press, 2014). 9   The most substantial study to date remains Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Paris: Presses universitaires de France, 1983). 10   A  note on terminology:  ‘jurisprudence’ is used through this chapter, referring to its original meaning of legal expertise (juris prudentia), as a synonym for legal scholarship. The chapter distinguishes ‘scholarship’ (or jurisprudence) from practice. The first term refers to the literature produced by learned men, whether attached to universities or not. The second term refers to the application and understanding of legal rules and arguments by rulers, governments, diplomats, but also private companies and citizens in matters of war, peace, trade, and diplomacy.

102    sources in the modern tradition law of nations of the sixteenth to eighteenth centuries had a significant influence on the writers and practice of the nineteenth century, they merit a significant place in any long-​term history of international law. However, the later influence of their writings does not necessarily imply they had much impact on the State practice of their day, nor that they form a trustworthy reflection of the latter and can be treated as a convenient shorthand for it as historians of international law tend to do. This chapter aspires to correct at least the second and third reduction of the history of international law by first, indicating the impact of late medieval law on the classical law of nations, and secondly, relating scholarship and practice to one another.

II.  The Historic, Informative Sources of the Classical Law of Nations: From Jus Commune to Jus Naturae et Gentium (1500–​1650) The scholarly debate on international relations and law of the sixteenth and early seventeenth centuries was remarkably lively. Theologians, canon lawyers, as well as Roman lawyers, applied their minds to the crisis of the international order of Europe caused by the Reformation and to questions arising from the imperial endeavours in the Indies. To their efforts were joined those of representatives of a newly emerging discipline, that of secular political theory. Whereas modern historiography has rightly valued the innovative, formative force that went out from the neo-​scholastics and humanists of the period, it has erred by overlooking their dependence on late medieval theologians and jurists. For this oversight, two explanations can be forwarded. On the one hand, as far back as the eighteenth century, general historiography has set too much store on the humanists’ attack on late medieval, scholastic scholarship and their claims of independence thereof. The humanist self-​appraisal of having rediscovered classical Antiquity through their direct engagement with ancient sources has caused modern scholars to overlook the humanists’ constant dialogue with their medieval predecessors and the mediating role of the latter in passing on the classical, textual inheritance. This is of particular notice for the study of Roman law, and its canonical text, the codification of Justinian (529–​565).11 On the other hand, if the scholars of   James Mearns, ‘A Consultation by Andrea Alciato on the Laws of War’, Legal History Review 82 (2014): 100–​40. 11

randall lesaffer   103 the Renaissance cannot be credited for many of the conceptions, institutions, and doctrines of the law of nations, they can be credited for having made a crucial step towards its emancipation from theology and general jurisprudence and its evolution into an autonomous legal discipline. Late medieval jurists did not consider the law of nations an autonomous body of law. Matters of war and peace-​making, diplomacy, and trade were not the exclusive preserve of one type of polity, but involved a great variety of polities and actors, from the local to the universal, and from those who yielded public authority to those who only represented their personal interests. The lack of clear separation between the domestic and the international and between the private and the public may have precluded medieval canonists as well as civilians from construing the law of nations as a separate body of law, but it did not prevent them from writing on international relations. On the contrary, they did so extensively and with great sophistication. Many doctrines of modern international law with regard to territory, treaty-​making, war and peace, trade, and diplomacy have their roots in the jus commune. To appreciate the significance of the late medieval jus commune for the history of international law, it is necessary to point out some of its characteristics. First, late medieval jurisprudence was as scholastic as theology. It departed from a canon of textual sources to which absolute authority was granted. This implied that medieval scholars searched for the truth through the exegesis and interpretation of a limited collection of texts which they believed to contain all the truth God had revealed to man. For canon lawyers, these were primarily the Decretum Gratiani (c. 1140) and the great papal codifications from the thirteenth and fourteenth centuries,12 later collated in the Corpus juris canonici. For civilians, this was the Justinanic collection in its medieval version. Secondly, the jus commune was an integral part of the scholastic endeavour to unearth the complete truth which God had bequeathed to man. Together with Christian moral theology, it encompassed a comprehensive and all-​pervasive programme for justice within Christianity. Canon and Roman law embodied the ideal of divine justice and translated it into myriads of concrete rules which dictated human behaviour through all times and at all levels of society. Princes and rulers, as well as any common man, were equally subject to their commands. This implied that international policy was largely perceived in terms of the pursuance of legal rights. Thirdly, as all scholastic science, the jus commune was holistic. Although distinctions such as private and public law existed, the jus commune was not fragmented. All law spoke of the same truth so that every one of its precepts and rules was relevant to different contexts. Rules and institutions which originally had been devised

  Primarily the Liber extra (1234) and the Liber sextus (1298).

12

104    sources in the modern tradition for private matters could easily be applied to matters of public authority, and vice versa. The authoritative texts of canon and Roman law contained few passages that directly dealt with international relations.13 This did not stop late medieval jurisprudents from developing numerous doctrines with regard to international relations and doing so in great detail. For this, they did not hesitate to draw on text fragments that originally pertained to other matters. In particular, Roman private law was brought to bear on questions of war, peace, trade, and diplomacy.14 Fourthly, the claims to absolute authority of the jus commune did not only hold sway among scholars; they were not without consequence for practice either. During the Late Middle Ages, the learned jurisprudence of Roman and canon law developed into a major informative and formative source for the laws and procedures that regulated diplomatic practice. Apart from the intrinsic, absolute authority of the canonical texts, the influence of the jus commune worked through four conduits. First, many of the princes and rulers of late medieval Europe harnessed Roman law to their policies of centralization and bureaucratization because of its unifying force.15 Secondly, from the twelfth century onwards, university-​trained lawyers increasingly occupied positions of power and trust in the central chanceries and councils of Europe’s polities. By the fifteenth century, the standard composition of a diplomatic delegation to negotiate a treaty included at least one learned jurist. Moreover, the drafting of legal documents, including treaties, fell to public notaries, who were university-​trained lawyers. Thirdly, learned professors of the law were frequently asked for advice in international matters. Fourthly, whereas medieval Roman law was professorial law, canon law was also applied through the network of ecclesiastical courts that covered the Latin West. The Church claimed extensive jurisdiction. Many disputes regarding international relations, such as disputes about the justice of war or about the interpretation and violation of treaties, fell within the remit of ecclesiastical courts, with the papal Rota Romana at the apex of its hierarchy.16 More than just a source of inspiration for the articulation of

13   From the Corpus juris civilis, these were primarily D. 1.1, D. 49.15, D.49.16, and D. 50.7, C. 8.50 and C. 12.35, as well as the Libri feudorum and the Pax Constantiae (1183), which had been included in the Volumen parvum. For the Corpus juris canonici, these were C. 23 q. 2 c. 2 and X. 1.34, on the just war, respectively peace and truce. 14   James Muldoon, ‘The Contribution of Medieval Canon Lawyers to the Formation of International Law’, Traditio 28 (1972): 483–​97; Alain Wijffels, ‘Early-​Modern Scholarship on International Law’, in Alexander Orakhelashvili, ed., Research Handbook on the Theory and History of International Law (Cheltenham:  Edward Elgar, 2011), 23–​60, 29–​32; Karl-​Heinz Ziegler, ‘The Influence of Medieval Roman Law on Peace Treaties’, in Randall Lesaffer, ed., Peace Treaties and International Law in European History. From the End of the Middle Ages to World War One (Cambridge: Cambridge University Press, 2004), 147–​61. 15   Harold J. Berman, Law and Revolution. The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983). 16   Walter Ullmann, ‘The Medieval Papal Court as an International Tribunal’, Virginia Journal of International Law 11 (1971): 356–​7 1.

randall lesaffer   105 rules and procedures of jus gentium, medieval canon law was the pillar on which its authority and its enforcement rested. The Reformation tumbled this pillar. By the middle of the sixteenth century, canon law had lost its authority in half of Europe. In short order, appeals to canon law or ecclesiastical jurisdiction disappeared from diplomatic practice, first among Protestants, then among Catholics.17 Around the same time, the conquests in the New World challenged the usefulness of the jus commune as the foundational stone of the international legal order. The rise of powerful dynastic monarchies and their rejection of the final remnants of the universal claims of emperor, pope, and their legal systems, in secular but often also in spiritual affairs, started a process of nationalization of civilian and ecclesiastical jurisprudence. Scholarly writings on the law of nations of the sixteenth and early seventeenth centuries abounded with references to canon and Roman law, both to their authoritative sources and to late medieval and Renaissance jurisprudence.18 Whereas use of canon law withered away more quickly, Roman law remained a source of inspiration all through the seventeenth century, only almost to disappear in the second half of the eighteenth century.19 But under the pens of the neo-​scholastics and humanists and their successors of the classical law of nations, the nature of the learned jus commune as a source of the law of nations radically changed. The jus commune lost its absolute authority. From the perspective of scholasticism, the canonical texts of the jus commune had been considered the source of a divinely inspired truth and justice that were absolute, whole, complete, and immutable. Now, they were thought only to bear testimony to some of the finest human achievements in the field of law. To this, the humanist understanding of the historical contingency of the sources of Roman and canon law was crucial.20 By Grotius’ time, the authority of Roman and canon law had shifted from absolute to relative and their dictates had become historical examples to be studied for inspiration and emulation rather than timeless truths to be applied. This left the legal order of Europe without its traditional basis of common authority. Now that the old universal authorities—​both in terms of institutions and of laws—​had collapsed, natural law was indicated as the new ultimate foundation of the binding character of the law of nations.

  Randall Lesaffer, ‘The Grotian Tradition Revisited:  Change and Continuity in the History of International Law’, British Yearbook of International Law 73 (2002): 103–​39, 114–​15. 18   See chapter 3 by Dominique Gaurier in this volume. 19   See also Kaius Tuori, ‘The Reception of Ancient Legal Thought in Modern International Law’, in Bardo Fassbender and Anne Peters, eds, The Oxford Handbook of the History of International Law (Oxford:  Oxford University Press, 2012), 1012–​34, 1020–​3. For the sources of Grotius, see the annotations in Hugo Grotius, De jure belli ac pacis libri tres, eds Robert Feenstra and C. Persenaire (Aalen: Scientia, 1993). 20   James Gordley, The Jurists. A Critical History (Oxford: Oxford University Press, 2013), pp. 111–​27; Wijffels, ‘Early-​Modern Scholarship’, 35–​55. 17

106    sources in the modern tradition To Grotius falls the merit of having woven together the strands of theology, canon law, and Roman law, as well as those of his more immediate neo-​scholastic and humanist predecessors, into one tapestry. The hallmark of his law of nations was its dualism, which was already clearly present in the work of Francisco Suárez (1548–​1617).21 Grotius distinguished two bodies of law which ruled over the mutual relations of States: on the one hand natural law; on the other, the voluntary or positive law of nations, based on consent.22 Modern historians have distinguished two or three schools among the writers of the law of nations of the later seventeenth and eighteenth centuries: naturalists, positivists, and sometimes those who combine natural and positive law.23 Although this categorization works to map the major streams, it clouds the fact that the vast majority of writers, with the exception of notorious naturalists such as Samuel von Pufendorf (1632–​1694), adhered to the dualist scheme of Grotius. The major difference between the dualists, or Grotians, in the middle and the positivists—​or, as Stephen Neff calls them, pragmatists—​is that the latter focused their attention one-​sidedly on the positive law of nations rather than the fact that they rejected the significance, let alone the existence, of natural law.24 Mainstream doctrine after Grotius fine-​tuned his dualist conception of the law of nations in two major ways. Christian Wolff (1679–​1754) and his Swiss popularizer Emer de Vattel (1714–​1767) offered some of the most systematic articulations of the mature dualist understanding of the law of nations. First, as opposed to Grotius in his De jure belli ac pacis, they distinguished between general natural law, which applied to individuals, and the natural law of nations, under which the precepts of general natural law were adapted for their specific application to the relations of States. Secondly, by the time of Wolff and Vattel, it had become standard to indicate treaties and custom as the two major formative sources of the positive law of nations. Whereas the first was based on express consent, the latter was based on tacit consent.25 Grotius as well as his dualist followers struggled with the question of how to prove that consent was general enough to allow for the creation of rules of the law of nations that were general in application, either at the universal level or at the level of a regional international system such as the European one. The answer to   See ­chapter 1 by Peter Haggenmacher in this volume.   Hugo Grotius, De jure belli ac pacis libri tres, 2 vols (1625, text of 1646, Classics of International Law, Oxford/​London: Clarendon Press/​Humphrey Milton, 1925), Prolegomena 17 and 1.1.14. 23  Neff, Justice Among Nations, pp.  179–​ 219; Grewe, Epochs, pp.  349–​ 60; Karl-​ Heinz Ziegler, Völkerrechtsgeschichte. Ein Studienbuch, 2nd ed. (Munich: Beck, 2007), pp. 155–​63. 24   See e.g., on Cornelius van Bynkershoek (1673–​1743), one of the leading pragmatists: Kinji Akashi, Cornelius van Bynkershoek:  His Role in the History of International Law (The Hague:  Kluwer Law International, 1998). 25  Wolff, Jus Gentium, Prolegomena 3–​10 and 20–​4; Emer de Vattel, Le droit des gens, ou principes de la loi naturelle, 3 vols (The Classics of International Law) (Washington: Carnegie, 1916), Préface and Introduction, 6–​9 and 24–​8. See also ­chapter 3 by Dominique Gaurier in this volume. 21

22

randall lesaffer   107 this was presumed consent. In the scheme of Wolff and Vattel, this took the form of the middle category of the ‘voluntary law of nations’, in between the ‘necessary’—​or natural—​law of nations and the two positive categories, conventional and customary. Whereas the latter two were particular to those States which had clearly consented to a certain rule, the voluntary law of nations was general in application. Its source of authority was presumed consent and the basis for it was a combination of widespread acceptance with the condition that the voluntary law could not contradict natural law. In this way, positive law tied in with the precepts of natural justice. The application of these distinctions to the law of nations as an autonomous body of law was new, but the distinctions themselves were medieval in origin. This concerned the categories of natural and positive law as well as the subtle interaction between those categories which classical jurisprudence suggested. Whereas to the modern mind the operation of two bodies of law, natural and positive, to one field of human activity, may appear strange, from the perspective of tradition this was the most natural of things. First, Grotius and his successors applied natural and positive law at two different levels. Natural law only bound in conscience, in foro interno, and could not be externally enforced upon people or States; positive law applied to the external relations of people and States, in foro externo¸ and was enforceable through human action. Nineteenth-​century jurists, as most famously John Austin (1790–​1859), have found occasion therein to ostracize natural law from the world of law into that of morality,26 but to most writers of the Early Modern Age, natural law was very much law. The division between the internal and external fora went back to medieval theological conceptions of the distinction between the spiritual and temporal. To Christian believers, whether of the Catholic or Protestant denominations, natural law was not unenforceable: it would be enforced by God at the Final Judgement.27 In this respect, rulers and diplomats had a deep personal stake in abiding with the dictates of the natural law of nations. Diversions from it would only be pardoned by God if they occurred in good faith and were covered by the exception of invincible ignorance.28 The positive law of nations adapted the law regulating international relations to the imperfect conditions of human fallibility. It could not contradict the law of nature, but it lessened the consequences of violating its precepts at the level of interstate relations in the here and now. In the absence of the possibility of knowing for certain who held the right claims and acted justly under natural law, some rules of natural justice could not be enforced and their

26  John Austin, The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble (Cambridge: Cambridge University Press, 1995), pp. 19–​21. 27  Grotius, De jure belli ac pacis, n. 22, Prolegomena, p. 20. 28   See the famous dictum by Francisco de Vitoria on the excusability of waging an unjust war under these conditions:  Francisco de Vitoria, Relectio de jure belli, in Anthony Pagden, ed., Francisco de Vitoria, Political Writings (Cambridge: Cambridge University Press, 1995), 2.4–​5.

108    sources in the modern tradition violation remained unsanctioned among men. All this was brought together in the concept of presumed consent: no rule of law could be said to carry general consent if it directly contradicted natural law and natural reason.29 The dualist nature of the classical law of nations was also important to the inheritance of late medieval jurisprudence, and more particularly its Roman law part. Natural law did not only cast the project of the legal regulation of international relations on a new authoritative foundation, but it also served as a vessel for jurisprudents to pour the old doctrines of canon and Roman law in and to recycle them into the jus naturae et gentium. This not only covered doctrines of canon and Roman (private) law that had already been applied to international affairs in the Middle Ages, such as the just war doctrine and the concept of self-​defence. Through the inclusion of large tracts of general private law in many of the great treatises of the jus naturae et gentium,30 the door also remained open to tap private law for new uses into the law of nations, such as the case of the doctrine of occupatio in the context of territorial acquisition outside Europe.31 Natural jurisprudence proved an apt vector to transplant doctrines from late medieval jurisprudence to the classical law of nations and adapt them to the new reality of the sovereign State. Claims to universality and rationality of natural law allowed Early Modern writers to lift old doctrines to a higher level of abstraction and adjust them to relations between sovereign States. After Grotius, natural lawyers generally rejected the old Roman animalistic understanding of natural law by Ulpian,32 which stretched it to cover all living beings. Grotius and the Modern School of Natural Law—​or Vernünftrecht—​adhered to the Ciceronian strand of natural law as the law of human nature, of which the distinctive feature was rationality.33 Under this reading of natural law, Roman law retained some of its exemplary role, as many natural lawyers considered it a primary witness to human rationality applied to law.34 It took until the middle of the eighteenth century for Roman law to dwindle further, after the Enlightenment movement had solidly declared the example of the ancients to be surpassed by the achievements of the modern, rational man.35

 Vattel, Le droit de gens, 3.12.192; Ian Hunter, ‘Vattel’s Law of Nations: Diplomatic Casuistry for the Protestant Nation’, Grotiana New Series 31 (2010): 108–​40. 30   As those of Grotius and Samuel Pufendorf, De jure naturae et gentium libri octo, 2 vols (1672, text of 1688, Classics of International Law, Oxford/​London: Clarendon Press, Humphrey Milford, 1934). 31 32  Fitzmaurice, Sovereignty, Property and Empire, pp. 59–​124.  D. 1.1.5. 33  Grotius, De jure belli ac pacis, Prolegomena, n. 22, pp. 6–​8; Knud Haakonssen, Natural Law and Moral Philosophy. From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996); Patrick Capps, ‘Natural Law and the Law of Nations’, in Orakhelashvili, ed., Research Handbook, pp. 61–​92; Gordley, Jurists, pp. 128–​40. 34   For the resilience of Roman law, see Cornelius van Bynkershoek, Quaestionum juris publici libri duo, 2 vols (1737, Classics of International Law, Oxford/​London: Clarendon Press: Humphrey Milford, 1930); Akashi, Bynkershoek, pp. 27–​31. 35   Charles Perrault, Parallèle des anciens et des modernes (Paris: Coignard, 1688). 29

randall lesaffer   109

III.  The Formative Sources of the Classical Law of Nations (1650–​1775) Grand narratives of the emergence of international law have generally portrayed the classical law of nations, or the public law of Europe, of the century-​and-​a-​half after 1648, in terms of the rise of State sovereignty as its leading principle towards triumph in the late nineteenth century, with the language of right bowing to that of might. There is evidently merit in the statement that the project of the legal organization of Europe during the late seventeenth and eighteenth centuries was more modest than the comprehensive project of the late medieval respublica Christiana and its jus commune, which subjected the actions of princes to the same precepts of justice and massive body of concrete rules as private persons. The challenge to which the classical law of nations had to rise was to create a space for the sovereign States of Europe to pursue their own goals, policies, and interpretations of justice while partaking in a single international society. But the classical law of nations did more than accommodate the liberty of States. Within the context of the ‘society of princes’, it also managed and curtailed that liberty.36 The foremost challenge was to devise a system that allowed States to pursue glory, prosperity, and above all security, without encroaching upon the liberty of others. Moreover, the existence of a stable international order was essential to the legitimacy and stability of the dynastic regimes of the major European players. For most dynasties, international recognition was a condition of survival. Until the early eighteenth century, the consent needed for the formation of a stable order eluded Europe, as foreign policy was dominated by the constant pursuit of myriads of dynastic claims and conflicts were fought out in the crossfire of internal succession crises, civil and religious strife, and international dynastic competition. In the face of French aspirations to hegemony, the old debate between ‘universal monarchy’ and ‘liberty’ long remained unsettled.37 It was only after the compromise of Utrecht-​Rastatt-​Baden (1713–​1714) made an end to the War of Spanish Succession (1700–​1714), that a consent was reached. The Peace Treaties of Utrecht famously introduced the political maxim of the balance of power into the public law of Europe. More importantly, the long-​term cooperation between France and Great Britain (1713–​1739) to sustain the compromise of Utrecht allowed it to outgrow its original context—​the settlement of the Spanish Succession—​and to become a foundational maxim of European order. But the Utrecht compromise was more than a political compromise that fortuitously endured for three decades.   Lucien Bély, La société des princes XVIe–​XVIIIe siècle (Paris: Fayard, 1999).   Franz Bosbach, Monarchia Universalis. Ein politischer Leitbegriff der frühen Neuzeit (Göttingen: Vandenhoeck & Ruprecht, 1986). 36 37

110    sources in the modern tradition It marked the achievement of a major shift in the legal organization of Europe. It expressed the consent that all States had a right to liberty, security, and prosperity and that their own rights were constrained by those of others. It implied that even the legitimate rights of a dynasty, let  alone its political interests, were submitted to the fundamental interests and values of the European society of States as a whole. The strongest, but by no means the only, instance of this was that at Utrecht, France and Spain had to allow their laws of succession to be superseded by the concern for the liberty of all others, and have their concession legally enshrined in treaties. It signified the supersession of constitutional law by treaty law. Common interest was generally expressed under the phrase ‘tranquillity and security of Europe’. It would be a mistake to read this as just a genuflexion to the doctrine of reason of State and the absolute right of self-​preservation, as it did not pertain to the security of a single State, but of all.38 If the classical law of nations provided a space for sovereign States to pursue their own goals, it was a restricted space, and it was a legal space. Its margins as well as the rules of behaviour that applied in it were largely legal. The classical law of nations did not just allow States to pursue their own goals at will in their mutual interactions through a set of rules—​the positive law of nations—​that was ultimately dependent on their consent. It also retained an albeit small number of pervasive restrictions, which found expression in fundamental precepts of justice—​such as the inviolability of treaties—​as well as doctrines—​such as the resilience of the just war doctrine—​both in scholarly writings and in official justifications of war.39 These escaped and transcended the need for States’ consent and were considered part of natural law.40 More importantly, the need for stability and restraint stimulated the retention, gradual adaptation, and further growth of a body of concrete doctrines, institutions, and rules of positive law that permeated all aspects of international relations. The expansion of the jus ad bellum, the jus in bello, the jus post bellum, neutrality law, prize law, maritime law, and trade law through State practice is impressive, and still in dire need of detailed study.41 The expansion of the law of nations did not only pertain to the mutual rights of States themselves, but also to the rights which   Frederik Dhondt, Balance of Power and Norm Hierarchy. British–​French Diplomacy after the Peace of Utrecht (Leiden: Brill/​Nijhoff, 2015). 39   Randall Lesaffer, ‘Too Much History: From War as Sanction to the Sanctioning of War’, in Marc Weller, ed., The Oxford Handbook of the Use of Force in International Law (Oxford: Oxford University Press, 2015), 35–​55, 39–​45. 40   Lesaffer, ‘Grotian Tradition’, pp. 130–​6. 41   Stephen C. Neff, The Rights and Duties of Neutrals. A General History (Manchester: Manchester University Press, 2000); Antonella Alimento, ed., War, Trade and Neutrality. Europe and the Mediterranean in the Seventeenth and Eighteenth Centuries (Milan: FrancoAngeli Storia, 2011); Jean-​ Mathieu Mattéi, Histoire du droit de la guerre (1700–​1819). Introduction à l’histoire du droit international, 2 vols (Aix-​en-​Provence: Presses universitaires d’Aix-​Marseille, 2006); Stephen C. Neff, War and the Law of Nations. A General History (Cambridge: Cambridge University Press, 2008), pp. 112–​30. 38

randall lesaffer   111 States claimed for their subjects from other States. The gradual monopolization of international relations by the State and its emerging claim to represent its subjects at the international level caused some disparate fields of law which played out at different levels—​from local laws to transnational laws such as the lex mercatoria—​to be consolidated at the interstate level into the European law of nations. This pertained to many actions which before had been largely the concern of private actors or local governments, such as the treatment of prisoners of war, the attribution of booty including maritime prize, the restitution of private property after war, the extradition of criminals, and the organization of trade and navigation. Moreover, regardless of States’ claims to the monopoly over international relations, the exclusion of individuals and other private actors from direct participation was never fully achieved, and the term ‘law of nations’ remained, in doctrine as well as in practice, inclusive of both interstate public law and transnational private law.42 In this expansion of the positive law of nations, legal scholarship played a surprisingly small role. It is ironic that historians of international law have devoted the most attention to the legal scholarship that mattered the least to its own time to the stark neglect of the legal scholarship that mattered the most—​that of the Late Middle Ages. The jurisprudents of the jus naturae et gentium struggled with the same dilemmas of balancing liberty with justice and society as rulers, diplomats, and their legal advisers did. Regardless of the grand claims of the universality and timelessness of the precepts of natural justice, they failed to come up with a project of justice through law that was as comprehensive as that of their medieval predecessors. Moreover, legal scholarship had increasingly to accept the competition of the emerging fields of secular political philosophy and political economy, with their discourse of expediency and necessity. The most influential legal writers of the eighteenth century, Vattel foremost among them, had to thank embracing some of this discourse for part of their success.43 Finally, for a long time, scholarship failed to catch the expansion of the law of nations in practice and to give useful surveys of some major branches of it, such as jus post bellum. Scholarship only caught up with practice well into the eighteenth century, when it took a turn towards positive law and drew insights of political thought into the legal framework. First came the documentarists, often men who had worked in or close to practice, 42   Randall Lesaffer and Erik-​Jan Broers, ‘Private Property in the Dutch–​Spanish Peace Treaty of Munster (30 January 1648)’, in Michael Jucker, Martin Kintzinger, and Rainer Christoph Schwinges, eds, Rechtsformen internationaler Politik. Theorie, Norm und Praxis vom 12. bis 18. Jahrhundert (Berlin: Duncker & Humblot, 2011), 165–​95; Heinhard Steiger, ‘Was haben die Untertanen vom Frieden?’, in Heinz Duchhardt and Martin Espenhorst, eds, Utrecht-​Rastatt-​Baden 1712–​1714. Ein europäisches Friedenswerk am Ende des Zeitalters Ludwigs XIV (Göttingen: Vandenhoeck & Ruprecht, 2013), 141–​65. 43  Martti Koskenniemi, ‘The Advantage of Treaties:  International Law in the Enlightenment’, Edinburgh Law Review 13 (2009): 27–​68.

112    sources in the modern tradition who published collections of treaties and other documents of State practice.44 As the century progressed, more commentaries of State practice appeared. Some of these works can be classified as pragmatist to the extent that their authors hardly covered natural law. But also dualists, like Vattel, began to devote more attention to practice. It is no surprise that these writings had a far greater use for practitioners than the mainstream works of the jus naturae et gentium. There are some famous and much-​quoted examples that speak to the influence of the great classical writings of the jus naturae et gentium on practitioners, such as the story that the Swedish King Gustav Adolph (1611–​1632) had a copy of Grotius’ De jure belli ac pacis to hand when he invaded the Holy Roman Empire in 1630 or the fact that the treatises of Grotius and Pufendorf were the basic texts for the study of the law of nations in the short-​lived diplomatic academy in France (1712–​1721).45 Also, some of the classical writers were practitioners themselves.46 But all in all, before the ‘turn to positive law’ in scholarship drew the attention of practitioners to learned writings, instances of their use in practice were rare.47 That did not mean that diplomats and legal advisers were unaware of doctrinal traditions. But the major source of transfer from doctrine to practice might very well have been that university-​trained lawyers, although they had seen their relative position dwindle, were still an important group among diplomats. These lawyer-​diplomats might have had some exposure to the study of the jus naturae et gentium at university, but the major conduit for the transfer of doctrinal knowledge on matters of war, peace, diplomacy, and trade, and of the underlying, general jurisprudence still resided with the study of Roman law. The change and expansion of the law of nations during the late seventeenth and eighteenth centuries was to a large extent the product of practitioners. What were now the formative sources of that law, which diplomats and other practitioners variably referred to as law of nations (droit des gens, jus gentium), public law (droit public, jus publicum), of public law of Europe (droit public de l’Europe, jus publicum Europaeum)? There were four: custom, treaties, political maxims, and natural law precepts. As doctrinal writers would have it, the major formative sources of the law of nations in practice were customs and treaties. The doctrine that the basis for the 44   John C. Rule and Ben S. Trotter, A World of Paper. Louis XIV, Colbert de Torcy, and the Rise of the Information State (Montreal: McGill-​Queen’s University Press, 2014), pp. 321–​8. 45   H. M. A. Keens-​Soper, ‘The French Political Academy, 1712: A School for Ambassadors’, European Studies Review 2 (1972): 329–​50, 340–​2; Michael Roberts, Gustavus Adolphus. A History of Sweden 1611–​ 1632 (London: Longmans & Green, 1958), p. 639. 46   Tetsuya Toyoda, Theory and Politics of the Law of Nations. Political Bias in International Law Discourse of Seven German Court Councillors in the Seventeenth and Eighteenth Centuries (Leiden: Brill/​ Nijhoff, 2011); Martine van Ittersum, Profit and Principle. Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies (1595–​1615) (Leiden: Brill, 2006). 47   Frederik Dhondt, ‘La représentation du droit dans la communauté des diplomates européens des Trente Heureuses’, Legal History Review 81 (2013): 595–​620.

randall lesaffer   113 binding force of customary law was tacit, or for general law, presumed consent offers an apt reflection of legal practice.48 The major criteria for the legal qualification of State practice as a binding custom and the major indication of consent were the longevity, and in the case of general law, the commonality, of its usage.49 Usus, usage, had a double function. It was the material condition (corpus) for a custom to emerge but it also offered proof for its mental acceptance into law (animus). The usages or practices of States on which customs were built were diverse in nature and transpired through a great variety of documents. This can be gleaned from the documentary collections of the late seventeenth and eighteenth centuries, as well as from the treatises of the pragmatists of the mid-​and later eighteenth century. These collections were not primarily made with an eye to document the formative sources of the law of nations, but to document the concrete rights and pretences of princes, dynasties, and republics. Their major function was to feed the continuous debates about historic and dynastic rights to territories into which the geopolitics of Europe translated until well into the eighteenth century.50 But through a process of generalization and abstraction, the common practices on which customary law was based can be detracted from them. That exercise can also be seen at work in the treatises of some of the mid-​and later eighteenth-​century pragmatists.51 Next to documents through which two or more States directly engaged with one another, such as treaties, marriage agreements, or arbitrations, State practice appeared through a variety of unilateral acts and documents. These included constitutional documents, decisions on dynastic succession, testaments, national legislation, executive orders and proclamations such as declarations of war or neutrality, papal bulls, charters and

48   The basis for the following discussion of customary law are the author’s twenty-​year-​long exposition to sources of the law of nations from practice such as treaties and declarations and manifestos of war, and related diplomatic documents, as well as the writings of modern historians quoted in note 46–​7. Also, Charles de Martens, Causes célèbres du droit des gens, 5 vols, 2nd edn (Leipzig: Brockhaus, 1858–​1859). 49   Paul Guggenheim, Contribution à l’histoire des sources du droit des gens, vol. 94, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1958), 5–​82, 36–​49. 50   The most important collections of European treaties are:  Jean Dumont, Corps universel diplomatique du droit des gens, 8 vols and 5 suppl. (Amsterdam/​The Hague:  Brunel/​Husson & Levrier, 1726–​1739) and Georg Friedrich von Martens, Recueil des principaux traités d’alliance, de paix, de trêve, de neutralité, de commerce, de limites, d’échange, etc. conclus par les puissances de l’Europe tant entre elles qu’avec les puissances et états dans l’autre partie du monde depuis 1761 jusqu’à présent, 7 vols (Göttingen: Dieterich, 1791–​1801). For collections of all kinds of documents see e.g., Jean Rousset de Missy, Recueil historique des actes, négotiations, mémoires et traités, depuis la paix d’Utrecht jusqu’au Second Congrès de Cambray inclusivement, 21 vols (The Hague/​Amsterdam:  A. Moetjes/​Meynard Uytwerf, 1734–​1754); idem, Les intérêts presens des puissances de l’Europe, fondez sur les traitez conclus depuis la Paix d’Utrecht inclusivement, & sur les preuves de leurs prétensions particulieres, 14 vols and 3 suppl. (The Hague: A. Moetjes, 1734–​1736). 51   See e.g., Bynkershoek, Quaestionum juris publici; Martens, Précis; Gaspard de Réal de Curban, La science du gouvernement, vol. V: Contenant le Droit des Gens (Paris: Librairies Associés, 1764).

114    sources in the modern tradition privileges, letters, statements in representative assemblies, legal advice, and other bureaucratic memoirs.52 Between the sixteenth and nineteenth centuries, treaties gained greatly in importance as a source for the law of nations. Over this period, treaties became far longer, more elaborate, and juridically detailed documents than ever before. This was particularly true for some categories of treaties, such as peace treaties and treaties of commerce, navigation, and friendship.53 Treaties, as contemporary scholars were well aware, were not only a source of legal obligation but also a formative source of legal rules, either directly or as a basis for general customary law. The first source of inspiration of a treaty were older treaties. Diplomats, when they went to negotiate a treaty, often armed themselves with previous treaties and the documentary evidence of their negotiation. This was one of the major reasons why the French foreign minister Jean-​Baptiste Colbert de Torcy (1665–​1746) created an archival service within his department.54 Treaty clauses were generally copied from older treaties, with the changes in content and language at times the subject of sophisticated altercations during the drafting process. Through this copying, some standardized traditions or lore of treaty practice materialized, which with time and through their general acceptance crystallized into customary law. This regarded the law of treaties itself as well as major substantive fields of the law of nations such as jus in bello, jus post bellum, trade and navigation, or the law of neutrality.55 The creation of general rules through treaties was helped along through different devices which connected treaties to one another. First, though, it needs to be underscored that, with few exceptions, almost all Early Modern treaties were bilateral. Even the great multilateral peace conferences such as those of Westphalia (1648), Utrecht (1713), or Paris (1783) did not produce a general, multilateral peace treaty, but rather sets of bilateral peace treaties.56 Nevertheless, treaties made at such conferences gained a more pervasive influence beyond the confines of their direct application through three devises. First, some clauses could be similar or literally the same for several treaties, giving them a greater salience for future treaty-​makers. Secondly, sometimes treaties made at a single conference confirmed one another.

52   For a good sample, see Wilhelm G. Grewe, ed., Fontes Iuris Historiae Gentium (Berlin: Walter De Gruyter, 1988), vol. II. 53   Randall Lesaffer, ‘Peace Treaties in International History’, in Fassbender and Peters, eds, The Oxford Handbook of the History of International Law, 71–​94, 76–​89. 54   Keens-​Soper, ‘French Political Academy’, pp. 329–​33; Role and Trotter, World of Paper, pp. 321–​5. 55  Jörg Fisch, Krieg und Frieden im Friedensvertrag. Eine universalgeschichtliche Studie über die Grundlagen und Formelemente des Friedensschlusses (Stuttgart: Klett-​Cotta, 1979), pp. 536–​7. 56   The two Peace Treaties of Westphalia of 24 October 1648 have been said to be multilateral but in fact they were bilateral treaties between France, and respectively Sweden and the Holy Roman Empire. The latter was, however, a confederate structure which makes the treaties appear multilateral, see 1 CTS 119 and 271.

randall lesaffer   115 The major practical implication of this was that different treaty parties became guarantors of one another’s commitment. Thirdly, from the end of the seventeenth century all through the eighteenth century, it became customary to confirm older peace settlements—​starting with Westphalia—​as fundamental to the new peace settlement.57 Although this did not create a formal hierarchy between the older and the new treaties, it strengthened the enduring relevance of their clauses and the rules contained therein. Custom and treaties did not exhaust the sources of what seventeenth-​and eighteenth-​century rulers and diplomats considered the public law of Europe. To these were added a few political maxims, as well as precepts and doctrines of natural law, to which frequent reference was made, such as the balance of power, pacta sunt servanda, or the just war. These maxims and precepts had a double function. First, compliance with them formed a criterion to argue whether a usage constituted general custom. The doctrine of presumed consent caught this well. Secondly, natural law was an intrinsically integral part of the law that ruled and constrained the actual behaviour of States. This can be illustrated through the jus ad bellum. Much like doctrine, State practice operated two conceptions of war: just and legal war. All through the Early Modern Age, rulers and governments, when resorting to force or going to war, took great trouble to justify their actions. For this, they clearly and consciously used the discourse of just war, which pertained to natural law doctrine.58 But at the same time, they did not extend the consequences of this to the level of actual warfare or peace-​making. Their claims to one-​sided justice fell largely silent and the jus in bello and jus post bellum were applied under the assumption that all sovereign belligerents had an equal, legal right to contest the war. Nevertheless, the resort to the discourse of just war was more than mere propaganda, as it was not without sanction. To the minds of rulers and their followers who were Christian believers, divine retribution threatened, maybe in the here and now, because God might withhold his favour from the unjust belligerent at the Final Judgement. These religious connotations remained part of the normative discourse governing international relations for many—​albeit not all—​of its participants and addressees until well into the eighteenth century.59 The justice of a belligerent’s claims were also material to the triggering of a casus foederis, the question whether an ally was bound by his treaty obligations to come to a belligerent’s aid.

  Article 2 of the Peace Treaty of Paris (Paris, 10 February 1763, 42 CTS 279).   Anuschka Tischer, Offizielle Kriegsbegründungen in der Frühen Neuzeit. Herrscherkommunikation in Europa zwischen Souveränität und korporativem Selbstverständniss (Berlin: Litt, 2012). 59   Joël Cornette, Le roi de guerre. Essai sur la souveraineté dans la France du Grand Siècle (Paris: Payot & Rivages, 1993), pp. 119–​49. 57

58

116    sources in the modern tradition

IV.  Concluding Remarks For most of the Early Modern Age, the writers of the law of nations did not give the central place to the doctrine of sources that nineteenth-​and twentieth-​century positivist international legal theory did. The main thrust of their theoretical discourse centred on the dualist nature of the law of nations and the relation between natural and positive law. It was the articulation of the positive law of nations as a distinct, if not completely independent body of law over the late seventeenth and eighteenth centuries which urged on the discussion about its sources. By the turn of the eighteenth century, a mainstream position had been formed around a rudimentary theory which placed ‘consent’ at the basis of legal obligation and indicated treaties and custom as the formative sources of the law of nations. This scholarly position was an apt albeit partial reflection of what practitioners understood the law of nations to be. Practitioners had a wider array of sources as they comprehended principles of natural law and political maxims under the notion of law of nations. Moreover, while scholars placed much instance on the role of consent (which can be considered to preconfigure the later doctrine of opinio juris sive necessitatis), in reality customs were accepted on the basis of the longevity and commonality of their application and invocation.

Research Questions • What is the place of the Early Modern jurisprudence of the law of nations in the grand narrative of the history of international law? • What were the sources of the classical law of nations (1650–​1775) according to its writers, as well as to its practitioners?

Selected Bibliography Dhondt, Frederik, Balance of Power and Norm Hierarchy. British–​French Diplomacy after the Peace of Utrecht (Leiden: Brill/​Nijhoff, 2015). Grewe, Wilhelm G., The Epochs of International Law (Berlin: Walter de Gruyter, 2000). Haggenmacher, Peter, Grotius et la doctrine de la guerre juste (Paris: Presses universitaires de France, 1983).

randall lesaffer   117 Hunter, Ian, ‘Vattel’s Law of Nations:  Diplomatic Casuistry for the Protestant Nation’, Grotiana New Series 31 (2010): 108–​40. Jouannet, Emmannuelle, Emer de Vattel et l’émergence doctrinale du droit international classique (Paris: Pedone, 1998). Koskenniemi, Martti, ‘The Advantage of Treaties: International Law in the Enlightenment’, Edinburgh Law Review 13 (2009): 27–​68. Lesaffer, Randall, ‘The Classical Law of Nations (1500–​1800)’, in Alexander Orakhelashvili, ed., Research Handbook on the Theory and History of International Law (Cheltenham: Edward Elgar, 2011), 408–​40. Mattéi, Jean-​Mathieu, Histoire du droit de la guerre (1700–​1819). Introduction à l’histoire du droit international, 2 vols (Aix-​en-​Provence and Marseille:  Presses universitaires d’Aix-​Marseille, 2006). Neff, Stephen, Justice Among Nations. A History of International Law (Cambridge: Harvard University Press, 2014). Wijffels, Alain, ‘Early-​ Modern Scholarship on International Law’, in Alexander Orakhelashvili, ed., Research Handbook on the Theory and History of International Law (Cheltenham: Edward Elgar, 2011), 23–​60.

Section  I I I

SOURCES OF INTERNATIONAL LAW IN THE NINETEENTH-CENTURY EUROPEAN TRADITION

Chapter 5

SOURCES OF INTERNATIONAL LAW IN THE NINETEENTH-​C ENTURY EUROPEAN TRADITION THE MYTH OF POSITIVISM

Miloš Vec

I. Introduction The question of sources in nineteenth-​century international law is part of the debate on ‘international law’s normativity’.1 It addresses a century, the legacy of which is of high relevance for any legal theory of international law. The ‘turn to 1   Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–​85, 165 (emphasis in original).

122   nineteenth-century european tradition history’ in international law had its starting point here.2 The following chapter ana­ lyses sources of international law in the nineteenth-​century European tradition. It is neither a ‘pre-​history’ of Article 38 of the International Court of Justice (ICJ) Statute or twentieth-​and twenty-​first-​century debates on sources, nor a contribution to contemporary discussions, but aims to reconstruct the rich and disputed notions of sources of the nineteenth century as having a historical value of their own while reflecting the underlying concepts of jurisprudence. The focus lies on doctrine, not on State practice.3 It includes scholars and theorists from a range of professions, perspectives, and nationalities (German, English, American, French, Italian, Swiss, Austrian, Dutch, Belgian, Danish, Portuguese, Russian-​Estonian, Chilean, and Argentinean) between 1815 and 1914. This selection is justified by the dominance and academic relevance of these nationalities in that period. The European Law of Nations became the global standard and was adopted by scholars all over the world.4 Further, this contribution refers mainly to the academic writings, considering the fact that the lack of central authority and the ambition to institutionalize this legal field enabled nineteenth-​century scholars to dominate the legal discourse on international law’s sources. Although jurists gained a monopoly and established sovereignty over legal interpretation, my aim is to include also some non-​jurist’s perspectives on the international normative order(s). The nineteenth-​century discourse was dominated by jurists, but philosophers, theologians, and Staatswissenschaftlers still kept writing about the international normative order(s). The departing point of my research is their definition of what international law sources are; such elaborations can be found in all contemporary textbooks in different places and in a great variety. Therefore I searched for consensus and also conflicts within these positions, which vary in principal from author to author. A typology (e.g. country to country or continent to continent) turned out to be impossible to construct. Considering this, it is even more important to discuss the nineteenth century as a period of juridification, universalization, and positivism in international law.5 What did ‘juridification’ and ‘positivism’ mean at the time, and how far were they connected to the current discussions dealing with these terms? Was there only one single take on positivism, and another one on natural law? The adequate understanding of such a  George Rodrigo Bandeira Galindo, ‘Martti Koskenniemi and the Historiographical Turn in International Law’, European Journal of International Law 16 (2005): 539–​59. 3   See Lauri Mälksoo’s illuminative contribution in ­chapter 6 of this volume. 4   Stefan Kroll, Normgenese durch Re-​Interpretation. China und das europäische Völkerrecht im 19. und 20. Jahrhundert (Baden-​Baden: Nomos, 2012); Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–​1933 (Cambridge: Cambridge University Press, 2015); Nina Keller-​ Kemmerer, Die Mimikry des Völkerrechts. Andrés Bellos Principios de Derecho de Jentes (in preparation for 2018); Liliana Obregón, ‘Latin American International Law’, in David Armstrong, ed., Routledge Handbook of International Law (London: Routledge, 2011), 154–​64. 5   Miloš Vec, ‘From the Congress of Vienna to the Paris Peace Treaties of 1919’, in Bardo Fassbender and Anne Peters, eds, The Oxford Handbook of the History of International Law (Oxford:  Oxford University Press, 2012), 654–​78. 2

miloš vec   123 ‘positivism’ as a juridical method was named to be ‘a (or perhaps the) central paradigm in international law’,6 and will also be the overarching focus of this chapter. Hence, the first part will examine definitions of legal sources as well as the sources’ significance for the construction of international law in the nineteenth century (see sections II: The Visible Invisible: What is a Source, Then? and III: Constructing Nineteenth-​Century International Law). The contemporary interest in sources of international law finally led to a turn in the self-​perception of the discipline, but still positivistic approaches did not entirely replace other explanations for international law’s normativity (see section IV: The ‘European Law of Nations’ and section V: Debating International Law’s Normativity). This should reject the often-​heard claim in historical research that nineteenth-​century lawyers made a complete and consequent turn into positivism. In a further step, I confront the (often very formal) impressions and statements from international law theory/​philosophy with international law’s regulatory challenges in that epoch (see section VI: Positivism as Legalization of International Law and section VII: Pluralism without a Hierarchy). How did the international legal argument work here? Again it turns out, that the often-​told story of the end of natural law is only partly true.

II.  The Visible Invisible: What is a Source, Then? When Lassa Oppenheim discussed the issue of international law sources in 1905, he was very critical towards the fuzziness of his colleagues who had previously written on this subject. Oppenheim tried to clarify the notion of ‘source’ by elaborating on the metaphor: Source means a spring or well, and has to be defined as the rising from the ground of a stream of water. When we see a stream of water and want to know whence it comes, we follow the stream upwards until we come to the spot where it rises naturally from the ground. On that spot, we say, is the source of the stream of water. We know very well that this source is not the cause of the existence of the stream of water. Source signifies only the natural rising of water from a certain spot of the ground, whatever natural causes there may be for that rising.7

6   Lauri Mälksoo, ‘The Context of International Legal Arguments. “Positivist” International Law Scholar August von Bulmerincq (1822–​1890) and His Concept of Politics’, Journal of the History of International Law 7 (2005): 181–​209, 185. 7   Lassa Oppenheim, International Law. A Treatise, Volume 1: Peace (London: Longmans, Green & Co., 1905), § 15, pp. 20–​1.

124   nineteenth-century european tradition Thus, Oppenheim called for separating the conception of ‘source’ from ‘cause’. But maybe there was a source for this approach he himself did not name: the German international and criminal lawyer Franz von Holtzendorff had already taken the same literate introduction focusing also on the metaphor into his elaboration of the sources of international law he published in 1885: Whereas every source presents on the one hand a visible start of a water stream and on the other hand points out that the source itself is produced by invisible, naturally inevitable, and physically explorable reasons of humidity-​accumulation, a source of law requires the spirit and actions of a preexisting and continuing legal idea.8

Thus, there are invisible causes for what appears on the surface, which have to be separated from the visible appearances in the physical world. Such a separation limits the question of international law’s sources to a certain extent and at the same time makes clear that there are deeper causes behind the phenomena of this normative order.

1. No Consent on Dissent International lawyers in the nineteenth century undertook numerous efforts to sum up and systematize the sources of what they perceived as the normative order of the law of nations, increasingly called ‘international law’. Obviously their definitions, systematizations, and argumentations widely differed. They used a plurality of terms and points of reference for what appeared to them to be the sources of international law. It is not the aim of this chapter to reconstruct these concepts in detail. However, the differences are significant. For example, the US-​American Henry Wheaton mentioned under the heading of ‘[t]‌he various sources of international law’ as his first point the ‘[t]ext-​writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent’.9 Carlos Calvo agreed: ‘[l]a source du droit international la plus abondante sans contredit consiste dans les œuvres des publicistes’.10 In 1906 John Bassett Moore also recommended to his readers to—​in case of doubt—​look at first ‘to the authority of writers’.11 But in Pasquale Fiore’s textbook, ‘les écrits des   Franz von Holtzendorff, ‘Die Quellen des Völkerrechts’, in Franz von Holtzendorff, ed., Handbuch des Völkerrechts, Volume 1: Einleitung in das Völkerrecht (Berlin: C. Habel, 1885), 77–​155, 79. 9   Henry Wheaton, Elements of International Law, 8th edn (London:  Sampson Low, Son & Co., 1866), § 151, p. 23. 10   Carlos Calvo, Le droit international théorique et pratique, vol. 1, 5th edn (Paris: Arthur Rousseau, 1896), L.1, Sect. II, § 28, p. 158. 11   John Bassett Moore, A Digest of International Law, vol. I (Washington:  Government printing office, 1906), p. 2. 8

miloš vec   125 publicistes’ came only second in the list of sources. In 1906 Moore also listed ‘the decisions of municipal courts’.12 But von Holtzendorff opposed both types of sources (decisions of courts; text-​writers) and maintained that both just provide proof of what was elsewhere legally stated.13 The same indication occurs with ‘analogy’ as a source, where some scholars claim it is a source of international law,14 and others deny this.15 Other aberrations among the positions of the scholars can be identified when comparing the mere quantity and immanent order of listed sources. The Swiss Alphonse Rivier defined in 1896 monolithically: ‘[l]a source première est la conscience juridique commune’,16 whereas other scholars started their analysis by working their way through long lists of possible sources and obviously referred to pluralism.17 Thus, Oppenheim was totally right when observing in 1905 that ‘[t]‌he different writers on the Law of Nations disagree widely with regard to kinds and numbers of sources of this law’.18 It is even more striking that some lawyers, such as Argentinian Carlos Calvo, claimed the contrary and stated that ‘presque tous les publicistes sont d’accord sur l’énumération des sources du droit international’ and conceded only that there is disagreement in terms of their classification and importance.19 The opposite is true: there was no consensus on the disagreement among the authorities of late nineteenth-​century international law.

2. Rare Definitions of ‘Source’ One reason for the difficulty in naming the dissent was that only a minority of authors gave clear and explicit definitions of what seemed to them a ‘source’. It is no coincidence that Holtzendorff and Oppenheim did so in their ambition to separate the question of sources from other fundaments of international law.  Moore, A Digest of International Law, p. 2.   Holtzendorff, ‘Die Quellen des Völkerrechts’, p. 84. 14   Friedrich Saalfeld, Grundriß eines Systems des europäischen Völkerrechts (Göttingen: J. F. Röwer, 1809), p. 1; Introduction, II A 3, p. 5; Karl Heinrich Ludwig Pölitz, Die Staatswissenschaften im Lichte unsrer Zeit, Fünfter und letzter Theil: Practisches (europäisches) Völkerrecht; Diplomatie; und Staatspraxis, 2nd edn (Leipzig: Hinrichssche Buchhandlung, 1828), p. 16; Egidius R. N. Arntz, Programme Du Cours Droit des Gens (Brussels: Alliance typographique, 1882). 15   Carl Baron von Kaltenborn von Stachau, Kritik des Völkerrechts (Leipzig: Gustav Mayer, 1847), p.  235; Alphonse Rivier, Principes du Droit des Gens (Paris:  Arthur Rousseau, 1896), T 1, L.1, § 2, 5, IV, p. 33. 16  Rivier, Principes du Droit des Gens, p. 27. 17   Henry W. Halleck, Elements of International Law and Laws of War (Philadelphia: J.B. Lippincott & Co., 1872), C. II §§ 18–​30 (pp. 36–​41); Arntz, Programme Du Cours Droit des Gens, Introduction, II A 1–​11, pp. 4–​6. 18  Oppenheim, International Law, p. 20. 19  Calvo, Le droit international théorique et pratique, p. 158. 12 13

126   nineteenth-century european tradition Holtzendorff defined in 1885: ‘[a]‌source of international law in its actual sense is a commonly noticeable act of a—​either within or by a State—​recognized power, which obliges to a certain behaviour or omission and which might be enforceable’.20 Oppenheim put it quite differently, leaving the element of State aside and introducing the historical dimension: ‘ “[s]ource of Law” is therefore the name for an historical fact out of which rules of conduct rise into existence and legal force’.21 More definitions could be added easily, many different, few similar, hardly two or three ever identical. But for the purpose of this chapter it is sufficient to make clear that there was a wide range of definitions of where rules came from and that there was not even consent on the underlying dissents among the authors.

III.  Constructing Nineteenth-​Century International Law: Source Matters The question of sources was without any doubt one of the key issues of nineteenth-​ century international law, which is indicated by various elements the following paragraphs exemplify. It was discussed prominently and at length.

1. No Source of Sources The relevance of the question was historically even heightened through the fact that there was no contemporary (legal) authority who or which had defined the canon of sources. A similar definition or a functional equivalent to Article 38 of the ICJ Statute was absent. No universal list summed up what international law sources should be, theory and legal practice were manifold, and no authority coordinated this pluralism. Hence, the authors were quite free in their construction and systematization of sources, and this probably aroused their genius and creativity.

2. If It Matters, Put It Into the Title The question of sources was traditionally so important that many textbooks took it directly or indirectly into the title. There are two well-​known and prominent variants.   Holtzendorff, ‘Die Quellen des Völkerrechts’, p. 79.  Oppenheim, International Law, p. 21.

20 21

miloš vec   127

a. A Pre-​Modern Tradition Continued: Nineteenth-​Century ‘Law of Nature and of Nations’ First, there was the pre-​modern tradition of the Ius Naturae et Gentium. Not only jurists were its authors,22 but also theologians,23 and philosophers.24 International law was conceptualized as a universal natural law which was its primary (and often only) source. The rules were often derived by the so-​called ‘domestic analogy’.25 Primarily defined for the individual, the rules were transferred to the State by analogy.26 This approach did not cease at the turn of the nineteenth century. On the contrary, the genre of Ius Naturae et Gentium treatises continued in many countries and languages after Latin had stopped being the dominant language of the legal discourse. For many decades, in France, Italy, Spain, and the Netherlands, the main place for the discourse on international law was the textbooks on natural law which comprised elaborated sections on the normative order of international relations. Authors like Gérard de Rayneval,27 Charles-​Jean Baptiste Bonnin,28 Claude Louis Samson Michel,29 Louis Barnabé Cotelle,30 and Léopold Malepeyre in France,31 Pietro Baroli,32 Guglielmo Audisio,33 or Nicola Caputi in Italy,34 or Hendrik Cock 22   See e.g., Lauritz Nørregaard, Natur-​og Folke-​Rettens Første Grunde (Copenhagen: Gyldendals Forlag, 1776); Giovambattista Almici, Institutiones iuris naturae et gentium secundum catholica principia (Madrid: Saluatoris Faulí, 1789); Johann Friedrich Weidler, Institutiones Iuris Naturae et Gentium (Wittenberg: Heinr. Schwarz, 1781). 23  See e.g., Augustin Schelle, Praktische Philosophie zum Gebrauch akademischer Vorlesungen. Zweyter Theil, welcher das Natur-​und Völkerrecht, und die Staatsklugheit enthält (Salzburg: Hof-​und akad. Waisenhausbuchhandlung, 1785). 24   Gottlob August Tittel, Erläuterungen der theoretischen und praktischen Philosophie nach Herrn Feders Ordnung. Natur-​und Völkerrecht (Frankfurt am Main: J. G. Garbe, 1786). 25  Martti Koskenniemi, From Apology to Utopia:  The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) (reissue with a new epilogue), p. 89, with further references in n. 66. 26   See e.g., Jean Jacques Burlamaqui, Principes du Droit Politique, vol. 2 (Amsterdam:  Zacharie Chatelain, 1751), p. 6; Thomas Rutherforth, Institutes of Natural Law [1st edn, Cambridge 1754–​1756], 2nd American edn (Baltimore: William and Joseph Neal, 1832), B.II, C.IX, I, p. 484; Johann Gottlieb Heineccius, Elementa Juris Naturae et Gentium (Neapel: Typographia Balleoniana, 1764), L.II, C.I, § 1, p. 293. 27   Gérard de Rayneval, Institutions du droit de la nature et des gens (Paris: Leblanc, 1803); new edition (Paris: A. Durand, 1851). 28   Charles-​Jean Baptiste Bonnin, Traité du Droit, contenant les Principes du Droit Naturel et du Droit des Nations (Paris: Garnery, 1808). 29   Claude L. S. Michel, Considérations nouvelles sur le droit en général et particulièrement sur le droit de la nature et des gens (Paris: Delaunay, 1813). 30   Louis B. Cotelle, Abrégé Du Cours élémentaire du Droit de la Nature et des Gens (Paris: Gobelet-​ Cotelle & Janet-​Louis Janet, 1820). 31   Léopold Malepeyre, Précis de la science du droit naturel et du droit des gens (Paris: Bachelier, 1829). 32  Pietro Baroli, Diritto Naturale Privato E Pubblico. Volume V-​VI:  Diritto Naturale Pubblico Esterno (Cremona: G. Feraboli, 1837). 33   Guglielmo Audisio, Iuris naturae et gentium privati et publici fundamenta (Rome:  Propaganda Fide, 1852). 34   Nicola Caputi, Elementi del Diritto di Natura e delle Genti (Bari: Libreria e stamperia Capasso, 1840).

128   nineteenth-century european tradition in the Netherlands,35 were, before the birth of international law as an autonomous discipline,36 the main reference for all those who wanted to read about the rank of States, the rules for warfare, and the rights and duties of diplomats. But this tradition was also upheld in the United States and in Great Britain. The law of nations was treated in the context of natural law, as by the theologian Johan Daniel Gros in 179537. James Mackintosh came first with ‘the study of the law of nature and nations’ in 1797, but was reprinted not only in 1799 and 1800, but also in 1828, 1835, 1836, and 1843;38 Leone Levi published a similar title in 1855,39 and both referred primarily to natural law as a source. Even when the tradition of such treatises became extinct, its methodological premises did not. Such doctrines as the ‘fundamental rights and duties of States’ outlived the genre and operated with its constructions when stating international law rules—​but often denying their natural law origin.40

b. Vorsprung Durch Technik: Modernization through Historical Sources This title page tradition to name natural law as the source of international law was continued by a discontinuity in the field of treatises that came up in the second half of the eighteenth century. Textbooks on the law of nations were published that claimed to elaborate the rules on a new fundament. It was so important for them that they took the new fundament into their titles, and it was about sources, too. Georg Friedrich von Martens is the best known of this group of authors. The English translation of the Philadelphia edition of his textbook in 1795 reads as ‘Summary of the Law of Nations, founded on the Treaties and Customs of the Modern Nations of Europe; with a list of the principal treaties . . .’.41 But there were also many other authors publishing very similar titles before the turn of the eighteenth century, such as Pierre Joseph Neyron,42   Hendrik Cock, Natuur-​Staats-​en Volkenregt (Leyden: J. G. la Lau, 1837).  Luigi Nuzzo and Miloš Vec, eds, Constructing International Law—​The Birth of a Discipline (Frankfurt am Main: V. Klostermann, 2012). 37   Johan Daniel Gros, Natural Principles of Rectitude (New York: T. & J. Swords, 1795). 38   James Mackintosh, Discourse on the Study of the Law of Nature and Nations (Boston:  Pratt & Co., 1843). 39  Leone Levi, The Law of Nature and of Nations as Affected by Divine Law (London:  W. & G. Cash, 1855). 40   Miloš Vec, ‘Grundrechte der Staaten. Die Tradierung des Natur-​und Völkerrechts der Aufklärung’, Rechtsgeschichte. Zeitschrift des Max-​Planck-​Instituts für europäische Rechtsgeschichte 18 (2011): 66–​94. 41  Georg Friedrich von Martens, Summary of the Law of Nations, founded on the Treaties and Customs of the Modern Nations of Europe; with a list of the principal treaties, concluded since the year 1748 down to the present time, indicating the works in which they are to be found, trans. William Cobbett (Philadelphia: Thomas Bradford, 1795). 42   Pierre Joseph Neyron, Principes Du Droit Des Gens Européen Conventionnel et Coutumier, ou bien Précis historique politique & juridique des droits & obligations que les Etats de l’Europe se sont acquis & imposés par des conventions & des usages reçus (Braunschweig:  Bronswic, Librairie des Orphelins, 1783). 35

36

miloš vec   129 or Karl Gottlob Günther.43 Martens’ book ran through many editions in the nineteenth century and was translated into various languages.44 A modernization of the science of international law took place and the new technique focused primarily on historical sources, treaties, and customs, instead of the eternity of natural law.

3. Other Systematical Locations The question of sources was also treated in various places within the textbooks. I suggest considering five different possibilities.

a. Monographs on Sources First, some monographs appeared during the nineteenth century that depicted mainly the issue of international law sources by dealing with treaties and their relevance for contemporary international law. The most prominent books in this genre were probably the Estonian-​Russian Carl Bergbohm’s Staatsverträge und Gesetze als Quellen des Völkerrechts from 187645 and Georg Jellinek’s Die rechtliche Natur der Staatenverträge, which was published in 1880.46 Lesser known, but of similar relevance is the Swiss Otfried Nippold’s book from 1894 on international treaties.47

b. Defining International Law through its Sources Secondly, international lawyers sometimes referred prominently to the question of sources when defining international law. So did Johann Ludwig Klüber in 1819, when he stated under the headline of ‘Définition et parties du droit des gens’: On appelle gens ou nations libres les états indépendans, considérés dans leurs rapports mutuels comme personnes morales. L’ensemble de leurs droits réciproques et parfaits, du droit des états entr’eux, forme le droit des gens ou droit des nations (jus gentium, jus civitatum inter se). Ce droit est naturel, en tant qu’il dérive de la nature même des relations qui subsistent entre les états: positif, lorsqu’il est fondé sur des conventions expresses ou tacites.48  Karl Gottlob Günther, Europäisches Völkerrecht in Friedenszeiten nach Vernunft, Verträgen und Herkommen mit Anwendung auf die teutschen Reichsstände, vol. 1 (Altenburg:  Richtersche Buchhandlung, 1787), vol. 2 (Altenburg: Richtersche Buchhandlung, 1792). 44  Peter Macalister-​ Smith and Joachim Schwietzke, ‘Bibliography of the Textbooks and Comprehensive Treatises on Positive International Law of the 19th Century’, Journal of the History of International Law 3 (2001): 75–​142, 100–​1. 45   Carl Bergbohm, Staatsverträge und Gesetze als Quellen des Völkerrechts (Dorpat: C. Mattiesen, 1876). 46   Georg Jellinek, Die rechtliche Natur der Staatenverträge. Ein Beitrag zur juristischen Construction des Völkerrechts (Wien: Alfred Hölder, 1880). 47   Otfried Nippold, Der völkerrechtliche Vertrag, seine Stellung im Rechtssystem und seine Bedeutung für das internationale Recht (Bern: Wyss, 1894). 48   Jean Louis Klüber, Droit des Gens moderne de l’Europe, vol. 1 (Stuttgart: Librairie de J. G. Cotta, 1819), § 1, p. 11. 43

130   nineteenth-century european tradition Wheaton and Calvo made similar references in their definition of international law on its sources.49

c. Explicit Chapters on Sources The most common variant however is, thirdly, the elaboration on the sources of international law within a distinct chapter of the textbook. These chapters are often to be found at the very beginning of the textbooks.50 The most comprehensive and differentiated tract I  know on this topic is Holtzendorff ’s previously mentioned nearly eighty-​pages-​long section in his own four-​volume Handbuch.51 Conversely, it is striking when authors do not include such explicit chapters in their textbooks or do not prominently mention the term ‘source’ in this context.52

d. Implicit References in International Law Histories Fourthly, the question of sources is also treated when authors undertake retrospectives on the history of the writings on international law. These retrospectives were often critical in their approach and they formulated them clearly as a self-​legitimation of their own writings.53 Thus they developed their own ideas by displaying and commenting on the former theories and [d]iverses écoles,54 of international law.55

e. Discussing Sources when Contending Rules Fifthly, international lawyers discussed the various sources when they treated concrete rules. They discussed rights and duties of the various actors in a certain situation or conflict and thus had to refer to anything that seemed suitable to justify the claim that such rules existed and such a behaviour was lawful—​or not.

f. A Dualistic Structure: The ‘Practical’ and the ‘Philosophical’ Law of Nations The plurality of possible sources of international law (see section III.2. a and b) led, for some decades between the late eighteenth and the nineteenth centuries, to a dualism in the tracts. The Viennese natural lawyer Martini formulated the dualism within the discipline when he differentiated between the ‘natural—​philosophical  Wheaton, Elements of International Law, p. 23; Calvo, Le droit international théorique et pratique, p. 139.   See e.g., Pasquale Fiore, Nouveau Droit International Public, vol. 1 (Paris: A. Durand & Pedone-​ Lauriel, 1868), T. I, C. 4, pp. 84–​94. 51   Holtzendorff, ‘Die Quellen des Völkerrechts’, pp. 77–​155. 52  See e.g., William Edward Hall, A Treatise on International Law, ed. J. B. Atlay, 5th edn (Oxford: Clarendon Press, 1904) (introductory chapter, pp. 1–​16, mentions ‘source’ only at pp. 6, 10—​I have no explanation for that). 53   Martti Koskenniemi, ‘A History of International Law Histories’, in Fassbender and Peters, The Oxford Handbook of the History of International Law, pp. 943–​7 1. 54  Fiore, Nouveau Droit International Public, pp. 30–​54. 55   See e.g., Oppenheim, International Law, pp. 90–​3. 49

50

miloš vec   131 or the posited—​historical’ international law.56 Therefore, some nineteenth-​century authors—​jurists and Staatswissenschaftlers—​ included two separate sections in their books on international law. One, usually the first, dealt with the so-​called ‘Philosophical Law of Nations’. This section incorporated international law theory, mainly developed on the basis of natural law. The second section, named ‘The practical (or Positive) Law of Nations’ comprised the concrete regulations, established by treaties and the custom of States. Such dualistic presentation can be found in the writings of Robert von Mohl,57 Pölitz,58 Bülau,59 Droste-​Hülshoff,60 and others. This dualism, based on a dichotomic confrontation of international law’s sources, ends in the last third of the nineteenth century. I have the suspicion that the radical dualism of such presentations might have been a German specialty. However, the relation between the philosophical and the positive law of nations was not, and it was discussed earnestly and intensely.61

IV.  The ‘European Law of Nations’: A New Disciplinary Self-​Understanding as a Result of a Paradigm Shift in Sources The above-​mentioned shift to a new group of sources which was displayed in the titles of Martens, Neyron, Günther, and others, had its consequences for the self-​understanding of the discipline. As a paradigm change the denomination of the science altered. ‘Europe’ went into the explicit focus of the law

  Karl A. Freiherr von Martini, Lehrbegriff des Natur-​Staats-​und Völkerrechts. Vierter Band, welcher das Völkerrecht enthält (Wien: Sonnleithnerische Buchhandlung, 1784), § 13 (p. 18, emphasis in original). 57   Robert von Mohl, Encyklopädie der Staatswissenschaften (Tübingen: Laupp’sche Buchhandlung, 1859), Philosophisches Völkerrecht: §§ 54 ff., pp. 402 ff.; Positives europäisches Völkerrecht: §§ 68 ff., pp. 461 ff. 58  Pölitz, Die Staatswissenschaften im Lichte unsrer Zeit, Erster Theil: das Natur-​und Völkerrecht, das Staats-​und Staatenrecht, und die Staatskunst, 2nd edn (Leipzig: Hinrichssche Buchhandlung, 1827), pp. 120–​45; Pölitz, Die Staatswissenschaften im Lichte unsrer Zeit, Fünfter und letzter Theil; Karl Heinrich Ludwig Pölitz, Staatswissenschaftliche Vorlesungen für die gebildeten Stände in constitutionellen Staaten, vol. 3 (Leipzig: Hinrichssche Buchhandlung, 1833), p. 83. 59   Friedrich Bülau, Encyclopädie der Staatswissenschaften, 2nd edn (Leipzig: C. E. Kollmann, 1856), starts with elaborations on the ‘philosophischen Staatenrechts’, pp. 395 ff.; additionally, he treats the ‘praktisches europäisches Völkerrecht’, pp. 440 ff. 60  Clemens August von Droste-​Hülshoff, Lehrbuch des Naturrechts oder der Rechtsphilosophie (Bonn: Adolph Marcus, 1823), § 166, p. 250. 61   See e.g., Pölitz, Die Staatswissenschaften im Lichte unsrer Zeit, Fünfter und letzter Theil, p. 9; Kaltenborn von Stachau, Kritik des Völkerrechts, pp. 13, 16–​20. 56

132   nineteenth-century european tradition of nations.62 The new academic approach labelled the books additionally with the adjective ‘European’.63 The treatises were named Primae lineae iuris gentium Europaearum practici,64 Inleiding tot de Wetenschap van het Europesche Volkenregt,65 Grundlinien des europäischen Gesandschaftsrechtes,66 or Grundriß eines europäischen Völkerrechts.67 This became a dominant label which persisted until the last quarter of the nineteenth century. The focus on Europe was a result of the focus on empiricism: treaties and custom were possible among States and other political entities all over the world, but in fact the heavy weight of the treaty relations lay on this continent. Empiricism and Europeanization went hand in hand. The former natural law-​universalism was rejected through this shift to positive law. Henry Wheaton declared the limited applicability of rules: Is there a uniform law of nations? There certainly is not the same one for all the nations and States of the world. The public law, with slight exceptions, has always been, and still is, limited to the civilized and Christian people of Europe or to those of European origin.68

The new discipline was at the same time European, practical, and modern, and the titles of the treatises took this set in various combinations to attract readers with the promise of juridical validity, as opposed to mere philosophical speculation in a Christian Wolff-​manner.69

V.  Debating International Law’s Normativity International law’s normativity was debated controversially in these treatises. The authors discussed which legal sources existed, their systematization, their interrelation, and many other issues. But first, one fundamental step had to be taken. 62  Karl-​Heinz Lingens, ‘Europa in der Lehre des “praktischen Völkerrechts” ’, in Irene Dingel and Matthias Schnettger, eds, Auf dem Weg nach Europa. Deutungen, Visionen, Wirklichkeit (Göttingen: Vandenhoeck & Ruprecht, 2010), 173–​86. 63   Julius Schmelzing, Systematischer Grundriß des praktischen Europäischen Völker-​Rechtes, 3 vols (Rudolstadt: Verlag der Hof-​, Buch-​und Kunsthandlung, 1818–​1820). 64   Georg Friedrich von Martens, Primae lineae iuris gentium Europaearum practici (Göttingen: J. C. Dieterich, 1785). 65   See e.g., Gabinus de Wal, Inleiding tot de Wetenschap van het Europesche Volkenregt (Groningen: Cornelius Star Numan, 1835). 66  Anon., Erste Grundlinien des europäischen Gesandschaftsrechtes (Mainz: Andreas Craß, 1790). 67   Karl G. Günther, Grundriß eines europäischen Völkerrechts nach Vernunft, Verträgen, Herkommen und Analogie (Regensburg: Montagische Buchhandlung, 1777). 68  Wheaton, Elements of International Law, pp. 17 ff. 69   Janus L. A. Kolderup-​Rosenvinge, Grundrids af den positive Folkeret. Til Brug ved Forelæaesninger, 2nd edn (Copenhagen: Gyldendalske Boghandlings Forlag, 1835); Philipp Thomas Köhler, Einleitung

miloš vec   133

1. If not Morality: The Minority Report Their starting point was mostly the assumption that international law was a juridical system of norms. As we all know, not all scholars shared this view. Some nineteenth-​century authors claimed that the interpower-​normativity was not based on law, but on the mere morality of States;70 others saw its source in domestic law, not in international legal normativity. Among this academic minority were such eminent lawyers as Gustav Hugo,71 Georg Friedrich Puchta,72 John Austin,73 theologians as Thomas Rutherforth,74 but also philosophers John Stuart Mill,75 or Georg Friedrich Wilhelm Hegel.76 This group—​often labelled as ‘deniers’ of international law—​was heterogeneous, and generalizations are hard to make. But the vast majority of jurists clearly rejected this view strongly in practice and theory. They had many good arguments,77 and general overviews on nineteenth-​ century jurisprudence hardly debated the issue of international law, being not a proper field of international juridical order, but an extra-​legal normativity or founded in mere State law.78 Rudolf von Jhering terminated his discussion with the clear statement: ‘[t]‌he legal character of international law is . . . unquestionable’.79

2. Claims and Candidates for ‘Positivism’ But if international law was constructed in the nineteenth century as a juridical discipline, was its normativity in the concepts of jurists and other scholars solely based on posited sources of law?

in das praktische europäische Völkerrecht (Mainz:  Andreas Graß, 1790); Karl T. Pütter, ‘Über das Princip des practischen Europäischen Völkerrechts’, Zeitschrift für die gesammte Staatswissenschaft 6 (1850): 535–​62. 70  Kristina Lovrić-​Pernak, ‘Morale internationale’ und ‘humanité’ im Völkerrecht des späten 19. Jahrhunderts. Bedeutung und Funktion in Staatenpraxis und Wissenschaft (Baden-​Baden: Nomos, 2013), pp. 28–​31. 71   Gustav Hugo, Lehrbuch eines civilistischen Cursus. Erster Band, welcher als allgemeine Einleitung die juristische Encyclopädie enthält, 8th edn (Berlin: August Mylius, 1835), pp. 73 ff. 72   Georg Friedrich Puchta, Das Gewohnheitsrecht, Erster Theil (Erlangen: Palm’sche Verlagsbuchhandlung, 1828), p. 142. 73   John Austin, The Province of Jurisprudence Determined (London: J. Murray, 1832), p. 147. 74  Rutherforth, Institutes of Natural Law, p. 483. 75  Casper Sylvest, ‘International Law in Nineteenth-​ Century Britain’, British Year Book of International Law 75 (2004): 9–​70, 36. 76   Georg Friedrich Wilhelm Hegel, Grundlinien der Philosophie des Rechts (Berlin: Nicolai, 1821), §§ 330–​40, pp. 337–​43. 77   See e.g., Ferdinand Walter, Juristische Encyclopädie (Bonn: Adolph Marcus, 1856), § 341, p. 335. 78   Adolf Merkel, Juristische Encyclopädie (Berlin/Leipzig: J. Guttentag, 1885), § 828, p. 363; 2nd edn (Berlin/​Leipzig: J. Guttentag 1900, ed. Rudolf Merkel), § 855, p. 306. 79   Rudolph von Jhering, Der Zweck im Recht, vol. 1, 3rd edn (Leipzig:  Breitkopf & Härtel, 1893), C. VIII: Die gesellschaftlichen Zwecke, 10. Das Recht—​Bedingtheit desselben durch Zwang, pp. 324 ff.

134   nineteenth-century european tradition

a. The Never-​Ending End of Natural Law The claim of the end of natural law during the nineteenth century and the turn to ‘positivism’ is classical and it is still widespread in academia. German Diplomat and scholar of the history of international law Wilhelm Georg Grewe wrote that ‘in the continental conception of international law a clear and unequivocal positivism increasingly prevailed’.80 Eminent scholar Heinhard Steiger generalized in 1997:  ‘[t]‌he German jurisprudence of international law  .  .  .  changed from a natural law based doctrine to a positivistic one’.81 In 2007 Karl-​Heinz Ziegler made a very similar statement: ‘[w]ithin the doctrine of international law positivism, which was already dominating in many other fields of jurisprudence, achieves common acceptance in continental Europe’.82 Anthony Anghie seems to share this view.83 In her recently published book, Mónica García-​Salmones Rovira captions a chapter with the ‘Fall of Natural Law’.84 This assertion of the decline of natural law in the nineteenth century often lacks a definition or discussion of what ‘positivism’ would or should signify in this context. But there were and are some exceptions—​in sources and in secondary literature. Oppenheim proclaimed his understanding of positivism in a high tone in 1905: ‘[o]‌nly a positive Law of Nations can be a branch of the science of law’.85 Lauri Mälksoo, depicting and contextualizing such statements, argued in 2005 that ‘[t]‌he central strategy of the positivist legal tradition has been to claim the separation of law from politics. In playing down the political, socioeconomic, historical context of legal arguments and doctrines, the mainstream legal tradition relies on the absolutist programme.’86 Neff distinguishes three different approaches to positivism in the nineteenth century.87 Hence, ‘positivism’ is a term that was and   Wilhelm Georg Grewe, The Epochs of International Law, trans. and rev. Michael Byers (Berlin: De Gruyter, 2000), pp. 503 ff; Epochen der Völkerrechtsgeschichte, 2nd edn (Baden-​Baden: Nomos, 1988), p. 592. 81  Heinhard Steiger, ‘Völkerrecht und Naturrecht zwischen Christian Wolff und Adolf Lasson’, in Diethelm Klippel, ed., Naturrecht im 19. Jahrhundert. Kontinuität—​Inhalt—​Funktion—​Wirkung (Goldbach: Keip, 1997), 45–​74, 45. 82   Karl-​Heinz Ziegler, Völkerrechtsgeschichte. Ein Studienbuch, 2nd edn (Munich: C. H. Beck, 2007), § 40 III 2, p. 172. 83  Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005), pp. 9, 32 ff., 40 ff. 84   Mónica García-​Salmones Rovira, The Project of Positivism in International Law. The History and Theory of International Law (Oxford: Oxford University Press, 2013), pp. 30–​35. 85  Oppenheim, International Law, p.  92. See Amanda Perreau-​Saussine, ‘Lauterpacht and Vattel on the Sources of International Law: The Place of Private Law Analogies and General Principles’, in Peter Haggenmacher and Vincent Chetail, eds, Vattel’s International Law in a XXIst Century Perspective (Boston: Martinus Nijhoff Publishers, 2011), 167–​85, 179. 86   Mälksoo, ‘The Context of International Legal Arguments’, p.  182; see also Lauri Mälksoo, ‘The Science of International Law and the Concept of Politics. The Arguments and Lives of the International Law Professors at the University of Dorpat/​Iur’ev/​Tartu 1855–​1985’, British Year Book of International Law 76 (2005): 383–​502, 500–​1. 87  Neff, Justice Among Nations (Cambridge/​London: Harvard University Press, 2014), p. 226. 80

miloš vec   135 is understood in many different ways and historically lacked consent on the underlying criteria. My ambition is to discuss this assertion of the decline of natural law in the nineteenth century critically and to refute as a legal historian some of the claims combined with this phrase.

b. Some Classical Candidates for ‘Positivism’ This disputed and broad understanding of positivism within the writings of many jurists led to numerous nineteenth-​century international lawyers being labelled as ‘positivists’ (some of them with constraints). The list of suspects and the corresponding names of the nominees is impressive: Martens, Johann Ludwig Klüber, August Wilhelm Heffter, Robert Phillimore, August von Bulmerincq, Adolph Hartmann, as well as Thomas Joseph Lawrence, Thomas Alfred Walker, John Westlake, Emanuel von Ullmann, Franz von Liszt, Karl Gareis, Hannis Taylor, and, at the end of the pre-​World War I period, of course, Oppenheim himself.

3. Secularization: Divine Law as a Source? One of the master narratives of international law is the idea of secularization. Did this also affect the sources? If the often-​told story of ‘positivism’ should be true, one would have to assume that. But a brief look at the theory of sources refutes this hypothesis. Quite a number of eminent nineteenth-​century lawyers claimed still that divine law is a source of international law. Casper Sylvest has pointed this out for John Austin and Oke Manning,88 where such positions could be found. Robert Phillimore claimed in this very sense:  ‘[t]‌he Primary Source, then, of International Jurisprudence is Divine Law. Of the two branches of Divine Law which have been mentioned, natural law, called by jurists jus primarium, is to be first considered.’89 Interestingly, Phillimore nevertheless claimed that this international law was also binding non-​Christian States.90 Henry Wager Halleck wrote in 1872 that international law is divided: ‘[t]he most common of these general divisions is, into the natural law of nations, and the positive law of nations. The first of these branches has been sub-​divided into the divine law, and the application of the law of God to States.’91 Rivier claims that ‘[l]e droit des gens est positif et pratique’, but informs the reader that God has created and still is creating the universal order of natural law for the relations among peoples.92   Sylvest, ‘International Law in Nineteenth-​Century Britain’, pp. 16, 21.   Robert Phillimore, Commentaries upon International Law, vol. 1 (Philadelphia: T. & J. W. Johnson, 1854), C. III, Nr. XXIII, p. 56. 90  Phillimore, Commentaries upon International Law, p. 59. 91  Halleck, Elements of International Law and Laws of War, pp. 30 ff. 92  Rivier, Principes du Droit des Gens, pp. 28–​9. 88

89

136   nineteenth-century european tradition In 1855 English jurist Leone Levi treats ‘The Law of Nature and of Nations as affected by Divine Law’.93 Even the top candidate for positivism, August Bulmerincq, referred prominently at the very end of his 1853 published habilitation to divine law when he writes that: ‘international law is subordinated under divine law, which humankind is supposed to fulfil. This law proclaims that the leadership of the present authorities is not without purpose. The representatives and preservers of positive international law are established by God.’94 Mälksoo concluded that there were different Bulmerincqs: [t]‌he positivist asked for a separation of law and politics, but the political Bulmerincq did not hesitate to instrumentalize legal issues for political needs.95

4. Positivism as the End of Natural Law Textbooks? Another variant of positivism is the claim that the nineteenth century terminated the tradition of natural law textbooks. This is true, but not to the extent that many writers believe. The tradition of ‘law of nature and of nations’ books displayed some late works (see section III.2. a). Additionally, the whole genre of natural law books was much more alive than it is often assumed. German legal historians Diethelm Klippel and Jan Schröder have devoted much of their work to the proof of how vivid these writings still were, not only in late eighteenth,96 but also in the nineteenth centuries.97 Schröder identifies a flourishing of natural law theories in early nineteenth-​ century jurisprudence, some of them inspired by Kant’s legal reasoning and Hegel’s legal philosophy.98 Often, only the terminology changed. The context of treating international law shifted from ‘natural law’ to ‘law of reason’ as in the case of Rotteck,99 or, in the case  Levi, The Law of Nature and of Nations as Affected by Divine Law.   August Bulmerincq, Das Asylrecht und die Auslieferung flüchtiger Verbrecher. Eine Abhandlung aus dem Gebiete der universellen Rechtsgeschichte und des positiven Völkerrechts (Dorpat: J. C. Schünmann’s Witwe & C. Mattiesen, 1853), p. 160. 95   Mälksoo, ‘The Science of International Law and the Concept of Politics’, p. 418. 96   Diethelm Klippel, ‘Das deutsche Naturrecht am Ende des 18. Jahrhunderts’, in Vanda Fiorillo and Frank Grunert, eds, Das Naturrecht der Geselligkeit. Anthropologie, Recht und Politik im 18. Jahrhundert (Berlin: Duncker & Humblot, 2009), 301–​25. 97   Jan Schröder and Ines Pielemeier, ‘Naturrecht als Lehrfach an den deutschen Universitäten des 18. und 19. Jahrhundert’, in Otto Dann and Diethelm Klippel, eds, Naturrecht—​Spätaufklärung—​ Revolution (Hamburg: Meiner, 1995), 255–​69; Diethelm Klippel, Naturrecht und Rechtsphilosophie im 19. Jahrhundert: Eine Bibliographie. Band I: 1780 bis 1850 (Tübingen: Mohr Siebeck, 2012), pp. 270–​92. 98   Jan Schröder, Recht als Wissenschaft. Geschichte der juristischen Methodenlehre in der Neuzeit (1500–​1933), 2nd edn (München: C.H. Beck, 2012), p. 205. 99   Carl von Rotteck, Lehrbuch des Vernunftrechts und der Staatswissenschaften. Erster Band: Allgemeine Einleitung in das Vernunftrecht. Natürliches Privatrecht (Stuttgart:  Hallberger’sche Buchhandlung, 93

94

miloš vec   137 of Pölitz,100 a replacement of ‘natural law’ through ‘philosophical law’ took place. Another indicator of the continuing interest in this tradition is the ongoing publication of abundant versions of Emer de Vattel’s Le droit des gens ou principes de la loi naturelle (1758). It received numerous editions and translations during the nineteenth century.101

5. Persistence of Natural Law as a Source The claim that natural law persisted in many ways during the nineteenth century is also true beyond the ongoing tradition of textbooks treating international law as a part of it without, or with only terminological changes in their titles.

a. Nineteenth-​Century International Law Sources Theory: Natural Law is Still Alive and Kicking Analogous observations can be made in the theory of sources. The starting point of exposure is in the first half of the nineteenth century, still very often an open reference to natural law. The Chilean scholar and author of the first Latin American treatise on international law Andrés Bello writes in 1832: El derecho de jentes no es pues otra cosa que el natural, que, aplicado a las naciones, considera al jénero humano, esparcido sobre la faz de la tierra, como una gran sociedad de que cada cual de ellas es miembro.102

Portuguese jurist Vicente Ferrer Neto Paiva defined the topic of his book on international law strictly in the same manner by a reference to natural law: ‘[d]‌ireito das Gentes é a sciencia, que tracta das modificações do Direito Natural Puro, applicado ás relações sociaes, que existem entre as nações (D. N. §. 44.) tanto no tempo de paz, como de guerra’.103 In the first edition of his textbook in 1819, Klüber stresses 1829); von Rotteck, Dritter Band (der besondern Staatslehre erster Band):  Materielle Politik:  1.) Auswärtige Angelegenheiten (Politik im engsten Sinne; insbesondere das Völker-​und Staaten-​Recht) (Stuttgart: Hallberger’sche Verlagshandlung, 1834), pp. 1–​166. 100  Pölitz, Die Staatswissenschaften im Lichte unsrer Zeit, Fünfter und letzter Theil, p. 3: the ‘philosophical law of nations’ is founded on ‘reason’. 101   On nineteenth-​century Vattel reception, see Vincent Chetail, ‘Vattel and the American Dream: An Inquiry into the Reception of the Law of Nations in the United States’, in Pierre-​Marie Dupuy and Vincent Chetail, eds, The Roots of International Law/​Les fondements du droit international. Liber Amicorum Peter Haggenmacher (Leiden: Martinus Nijhoff Publishers, 2014), 251–​300; Elisabetta Fiocchi Malaspina, L’eterno ritorno del ‘Droit des gens’ di Emer de Vattel (secc. XVIII-XIX). L’impatto sulla cultura giuridica in prospettiva globale (Frankfurt am Main: Max Planck Institute for European Legal History, 2017). 102   Andrés Bello, Principios de Derecho de Jentes (Santiago de Chile: Imprenta de La Opinión, 1832), Preliminares, 2, pp. 1s. 103   Vicente Ferrer Neto Paiva, Elementos de direito das gentes, 3rd edn (Coimbra: Imp. da Universidade, 1850), P.I, Sec. I, § 1, p. 1.

138   nineteenth-century european tradition the importance of natural law as the foundation for international law principles and its subsidiary validity in this field.104 Other authors, such as Belgian Professor Arntz, also addressed the latter function of natural law.105 Mackintosh was treating ‘the natural law of States’.106 This claim that such a natural law-​based law of nations existed was not limited to the first half of the nineteenth century and writers like Bello and Mackintosh. Also in the second half of the nineteenth century theologians and Staatswissenschaftlers stated that the main source of international law was to be found in natural law. Italian jurist Pasquale Fiore shared this point: Puisque le fondement de tout le droit international est la loi naturelle des nations, on comprend clairement que la première source directe doive être la raison. La loi naturelle, en effet, n’est pas écrite, elle n’a jamais été formulée en aucune langue humaine, ni promulguée par un législateur; elle se révèle immédiatement à notre raison.107

The link that Fiore spoke about at the beginning of this statement was more radically taken by other authors. Instead of ‘natural law’, the source of international law was being found in ‘reason’—​such positions can be found in Wheaton’s treatise: ‘[i]‌nternational law . . . may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations . . .’.108 Thus, the denominations changed: reason, raison, Vernunft, Natur der Sache, nature des choses,109 were the functional equivalents for the recourse on natural law which went terminologically out of fashion.

b. References to Natural Law in Various Regulatory Fields This ongoing reference to natural law as a source can also be traced in various regulatory fields. The principle of non-​intervention, for example,110 was, according to the Italian lawyer Carnazza-​Amari, one of the hotspots of nineteenth-​century international legal arguments.111  Klüber, Droit des Gens moderne de l’Europe, vol. 1, p. 4.  Arntz, Programme Du Cours Droit des Gens, p. 5; Pölitz, Die Staatswissenschaften im Lichte unsrer Zeit, Fünfter und letzter Theil, p. 17. 106  Mackintosh, Discourse on the Study of the Law of Nature and Nations, p. 45. 107  Fiore, Nouveau Droit International Public, p. 84. 108  Wheaton, Elements of International Law, p. 23. 109   Albert Fritot, Esprit Du Droit, 2nd edn (Paris: E. Pochard, 1825), p. 108. 110   I refer here to my former publication: Miloš Vec, ‘Intervention/​Nichtintervention. Verrechtlichung der Politik und Politisierung des Völkerrechts im 19. Jahrhundert’, in Ulrich Lappenküper and Reiner Marcowicz, eds, Macht und Recht. Völkerrecht in den internationalen Beziehungen (Paderborn: Ferdinand Schöningh, 2010), 135–​60. 111   Giuseppe Carnazza-​Amari, ‘Nouvel exposé du principe de non-​intervention’, Revue de droit international et de législation comparée 5 (1873): 352–​89 and 531–​65, 352. 104 105

miloš vec   139 But when debating this issue, the points of reference were preferably: ‘natural law’,112 ‘law of reason’,113 ‘a reasonable theory of law’,114 ‘the reasonable’,115 ‘the general grounds of reason’.116 This had, of course, something to do with this special field where law left the leeway for (power) politics and could not establish a general undisputed principle in positive law. Thus, the recourse on natural law was less surprising in the field of intervention than in others where treaties and custom existed.

c. Entanglements between Natural and Positive Law Thus, natural law was not expelled from nineteenth-​century sources of international law. On the contrary, it played an eminent role. Even scholars like Martens, who claimed in the late eighteenth century to have modernized the discipline through their turn to customs and treaties,117 did not deny the existence of a natural law of nations.118 Martens frequently referred to the perspective of natural law when discussing regulatory matters.119 Those nineteenth-​century writers who claimed the opposite and said that their international law system was nowadays only based on positive law were heavily flouted by Carl Bergbohm in 1892, who saw the persistence of natural law more critically than probably anybody else: I just recall the law of traffic, the law of intervention, the doctrines of just and unjust war etc., which are all beyond the realm of positive law. The real traits of positive international law are not perceivable due to well-​disposed disguise! If one revised according to my definition of natural law all the writings, which label themselves as international law or at least claim to be juridical, and eliminated all the sections, which are wholly or

112  Karl Hermann Scheidler, ‘Natural Law’, Nachtrag [on Art. Intervention (völkerrechtlich)], in Carl von Rotteck and Carl Welcker, eds, Das Staats-​Lexikon oder Encyklopädie der sämmtlichen Staatswissenschaften für alle Stände, vol. 7, 2nd edn (Altona: Hammerich, 1847), 434–​47, 442. 113  Carl von Rotteck, ‘Intervention (völkerrechtlich)’, in Rotteck and Welcker, eds, Das Staats-​ Lexikon, vol. 8 (Altona: Hammerich, 1839), 377–​94, 377. 114   ibid., p. 386. 115   Albert F. Berner, ‘Intervention (völkerrechtliche)’, in Johann Caspar Bluntschli and Karl Brater, eds, Deutsches Staats-​Wörterbuch, vol. 5 (Stuttgart/​Leipzig: Expedition des Staats-​Wörterbuchs, 1860), 341–​54, 350. 116  Wilhelm T. Krug, Dikäopolitik oder neue Restaurazion der Staatswissenschaft mittels des Rechtsgesetzes (Leipzig: Hartmann, 1824), p. 324. 117   Georg Friedrich Martens, Versuch über die Existenz eines positiven Europäischen Völkerrechts und den Nutzen dieser Wissenschaft (Göttingen:  J. C.  Dieterich, 1787). On Martens see Martti Koskenniemi, ‘Into Positivism: Georg Friedrich von Martens (1756–​-​1821) and Modern International Law’, Constellations. An International Journal of Critical and Democratic Theory 15 (2008): 189–​207. 118   Georg Friedrich Martens, Einleitung in das positive Europäische Völkerrecht auf Verträge und Herkommen gegründet (Göttingen: J. C. Dieterich, 1796), Einleitung, p. 2. 119   ibid., pp. 28, 46, 50, 52, 56, 58, 59, 61, 75, 76, 93, 106, 116, 119, 135, 147, 170, 206, 298, 352, 378.

140   nineteenth-century european tradition partly deduced from natural law, he would approve that I  refrain from compiling this poor bibliography.120

Natural law and other sources went together; the authors separated and combined them from case to case and depending on their interests. Casper Sylvest thus concludes correctly that ‘. . . there is no clear distinction to be discerned between legal positivism and legal naturalism in nineteenth century international legal thought; for most of the century the two co-​existed, but especially in the later decades they did so in a distinctive fashion that secured the coherence and respectability of the subject’.121 Martti Koskenniemi comes to the same result and focuses on the attitude of the international lawyers. They had their ‘cultural and moral sensibilities’ which led them to be more than ‘mere describers of valid (positive) law’.122 Koskenniemi concludes: It is precisely such shifting [between fact and evaluation, MV] that makes it pointless to try to class these writers—​any one of them—​as ‘positivists’ or ‘naturalists’. They were always both at the same time—​their arguments about valid positive law implying loaded assumptions about political worth, and their humanitarian sentiments always receiving expression in their practices of their own States or in some sociological understanding of the fact of the European civilization.123

6. A Century of Principles This tendency to political assumptions was furthermore expressed in the widespread affection to principles nineteenth-​century lawyers displayed.124 International lawyers formulated and postulated a whole bunch of principles when constructing international law. They needed these principles to fill the gaps in positive international law, to make statements about the nature of international relations, and to include values into the system of international law. Heinhard Steiger saw these principles as the last outcome of the natural law school (which he believed to have declined) within the science of international law. Whereas natural law had lost its 120   Carl Bergbohm, Jurisprudenz und Rechtsphilosophie. Band 1: Einleitung. Erste Abhandlung: Das Naturrecht der Gegenwart (Leipzig:  Duncker & Humblot, 1892), p.  352. Wrong attribution of the Bergbohm quotation to Jellinek by Jochen von Bernstorff, ‘Georg Jellinek—​Völkerrecht als modernes öffentliches Recht im fin du siècle?’, in Stanley Paulson and Martin Schulte, eds, Georg Jellinek. Beiträge zu Leben und Werk, (Tübingen: Mohr, 2000), 183–​206, 184, n. 10. 121   Sylvest, ‘International Law in Nineteenth-​Century Britain’, p. 12. 122   Martti Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870–​ 1960 (Cambridge: Cambridge University Press, 2001), p. 95. 123  Koskenniemi, The Gentle Civilizer of Nations, p. 96. 124  Miloš Vec, ‘Principles in 19th Century International Law Doctrine’, in Nuzzo and Vec, eds, Constructing International Law—​The Birth of a Discipline, 209–​27.

miloš vec   141 juridical validity, such principles did not, although being a product of the same school.125 Amanda Perreau-​Saussine has similarly highlighted the function of principles between law and politics, also addressing them as a product of natural law: Principles of natural law, on this account, are a product of politics: they are legal principles—​ and not simply disguised policy decisions, as in the second account, above—​but the justifying grounds of the relevant legal obligations are to be found within official practices and positive law themselves, within an imposed nexus of pacts, practices, and customs.126

VI.  Positivism as Legalization of International Law What could positivism then mean? One variant was the ambition of nineteenth-​ century international lawyers to push back politics from their juridical science. Such statements can be found in various treatises, many of them written by the leading figures in the field, like Klüber,127 or Heffter.128 Klüber strived for a separation between the legal status of international law and other kinds of normativity.129 Others like Saxon Staatswissenschaftler Pölitz were not so sure about this and made stronger links from the positive law of nations to the maxims of Staatsklugheit (politics) as a source of international law.130 But Pölitz was atypical, and the tendency of his statement might be explainable through the fact that he was not a lawyer and thus had no ambition to keep law’s and lawyers’ realm clean from unlawful contaminations. This tendency of ‘legalization of international law’ can be recognized on many levels of nineteenth-​century international law.131 Jurists became the only authoritative writers. The sum of positive explicit legal rules among States increased impressively. In practice it meant that, as the moral philosopher William Whewell already noted, ‘the body of International Law, in the course of the jural and moral progress of   Steiger, ‘Völkerrecht und Naturrecht zwischen Christian Wolff und Adolf Lasson’, p. 50.   Perreau-​Saussine, ‘Lauterpacht and Vattel on the Sources of International Law’, p. 182. 127  Klüber, Droit des Gens moderne de l’Europe, vol. 1, p. 14. 128   August Wilhelm Heffter, Das Europäische Völkerrecht der Gegenwart, 2nd edn (Berlin: Schroeder, 1848), p.  VI. See also Ingo J. Hueck, ‘Pragmatism, Positivism and Hegelianism in the Nineteenth Century. August Wilhelm Heffter’s Notion of Public International Law’, in Michael Stolleis and Masaharu Yanagihara, eds, East Asian and European Perspectives on International Law (Baden-​Baden: Nomos, 2004), 41–​55. 129  Klüber, Droit des Gens moderne de l’Europe, vol. 1, p. 14. 130  Pölitz, Die Staatswissenschaften im Lichte unsrer Zeit, Fünfter und letzter Theil, pp. 9–​10. 131   Besson, ‘Theorizing the Sources’, p. 165. 125

126

142   nineteenth-century european tradition Nations, constantly becomes more and more exact, more and more complete . . .’.132 This was not only expressed in the mere increase of treaties—​Edward Keene has recently highlighted on the basis of empirical data the ‘treaty revolution’ of the nineteenth century.133 It was also the tendency to multilateralism, the conclusion of law-​making treaties, the allotment of new fields of international cooperation, the institutionalizations,134 particularly within the flourishing nineteenth-​century sciences, in economy and technology.135

VII.  Pluralism without a Hierarchy: The (Non-​)Missing Systematization of Sources The theory of sources is and was never consented among international lawyers. This chapter has given some evidence on the historical positions and discussions. The writings of the scholars were manifold and controversial; their beliefs in what sources are, seemed pluralistic. Samantha Besson has made analogous observations for contemporary international law: ‘the international legal order is vertically pluralistic in the absence of a hierarchy among legal sources, on the one hand, and horizontally pluralistic or fragmented in many parallel legal regimes on different matters but also in different regions, on the other’.136 The nineteenth century was in no respect luckier. Even within one author’s work this historical pluralism seemed not to be orchestrated. No meta-​rule was available to decide in cases of conflict between two sources which one to follow. This was not perceived as a deficit. Maybe such pluralism 132   William Whewell, The Elements of Morality, Including Polity, 4th edn (London: Bell and Daldy, 1864), p. 538. 133   Edward Keene, ‘The Treaty-​Making Revolution of the Nineteenth Century’, The International History Review 34 (2012): 475–​500. 134   Madeleine Herren, Internationale Organisationen seit 1865. Eine Globalgeschichte der internationalen Ordnung (Darmstadt: WBG, 2009); Madeleine Herren, ‘Governmental Internationalism and the Beginning of a New World Order in the Late Nineteenth Century’, in Martin H. Geyer and Johannes Paulmann, eds, The Mechanics of Internationalism. Culture, Society, and Politics from the 1840s to the First World War (Oxford: Oxford University Press, 2001), 121–​44; Akira Iriye, Global Community. The Role of International Organizations in the Making of the Contemporary World (Berkeley: University of California Press, 2004). 135  Miloš Vec, Recht und Normierung in der Industriellen Revolution. Neue Strukturen der Normsetzung in Völkerrecht, staatlicher Gesetzgebung und gesellschaftlicher Selbstnormierung (Frankfurt am Main: Vittorio Klostermann, 2006), pp. 1–​166. 136   Besson, ‘Theorizing the Sources’, p. 164.

miloš vec   143 offered the chance to the science of international law to remain flexible; it enabled the international lawyers to generate such results the individual writers hold as adequate in the regulatory matter they were discussing.

VIII. Conclusion: Reluctance to Glance in the Mirror The discourse of international law in the nineteenth century was mainly dominated by jurists in accordance with the institutionalization of international law, but some other professions also wrote about the normative order among States. Both positions towards the sources of international law did not differ in principle. They only set slightly different accents, including more extra-​legal norms, or highlighted more prominently the link between law and morality. But none of the lawyers or other scholars assumed that there was an international law that did not refer somehow to morality. On the contrary, moralité internationale,137 the ‘moral law of nations’,138 and other prominent references to a specific morality in international relations were often a keyword for them. In their self-​perception, they believed in a project called ‘positivism’, which had many different expressions and appeared in diverse variants (it thus appears detrimental to define ex post what ‘positivism’ is). It had historically different meanings. The international lawyers agreed on the idea of positivization of international law through treaties and codifications and institutions. But that did not mean that they excluded natural law, legal philosophy, reason, or even Roman law,139 from the canon of sources. As jurists, they claimed that their discipline was objective, different from politics, and thus a real science in the late nineteenth-​century understanding.140 But this was often only a legitimation and a self-​empowerment to politicize when discussing interstate issues where they gave openly ‘subjective political comments’.141 Academic writings and nineteenth-​century treaty practice were full of explicit references to ‘international morality’ as an intellectual and ethic fundament and source of  Fiore, Nouveau Droit International Public, p. 466; and see Lovrić-​Pernak, ‘Morale internationale’ und ‘humanité’ im Völkerrecht des späten 19. Jahrhunderts. 138   Daniel Gardner, A Treatise on International Law (New York: N. Tuttle, 1844), p. 95. 139   John Westlake, International Law. Part I: Peace (Cambridge: Cambridge University Press, 1904), p. 14; Halleck, Elements of International Law and Laws of War, p. 37. 140   Anne Orford, ‘Scientific Reason and the Discipline of International Law’, European Journal of International Law 25 (2014): 369–​85, 373–​77. 141   Mälksoo, ‘The Context of International Legal Arguments’, p. 202. 137

144   nineteenth-century european tradition international law.142 The attitude of being a positivist international lawyer included a specific political attitude they did not consequently reflect on,143 and which was often undermined in their practical work. Their self-​perception was far different from our picture of their work, which criticizes them for being hypocritical and ‘politics disguised’.144 One could claim that they suffered from a ‘reluctance to glance in the mirror’,145 which might explain some of the shortcomings of their analytical and political attitude.

Research Questions • Which sources did nineteenth-​ century doctrine and practice acknowledge, where were the controversial issues, and what did the discrepancies and differences signify? • To which extent can it still be claimed that the nineteenth century was an epoch in which international law took a turn into positivism?

Selected Bibliography Bergbohm, Carl, Staatsverträge und Gesetze als Quellen des Völkerrechts (Dorpat:  C. Mattiesen, 1876). Besson, Samantha, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2010), 163–​85. Holtzendorff, Franz von, ‘Die Quellen des Völkerrechts’, in Franz von Holtzendorff, ed., Handbuch des Völkerrechts. Auf Grundlage Europäischer Staatspraxis, Vol. 1: Einleitung in das Völkerrecht (Berlin: C. Habel, 1885), 77–​155. Hueck, Ingo J., ‘Pragmatism, Positivism and Hegelianism in the Nineteenth Century. August Wilhelm Heffter’s Notion of Public International Law’, in Michael Stolleis and Masaharu

  Lovrić-​Pernak, ‘Morale internationale’ und ‘humanité’ im Völkerrecht des späten 19. Jahrhunderts.   Benedict Kingsbury, ‘Legal Positivism as Normative Politics:  International Society, Balance of Power and Lassa Oppenheim’s Positive International Law’, in Stolleis and Yanagihura, East Asian and European Perspectives on International Law, 139–​77. 144   Mälksoo, ‘The Context of International Legal Arguments’, pp. 208–​9. 145   I borrowed this title from Michael Stolleis, Reluctance to Glance in the Mirror: The Changing Face of German Jurisprudence After 1933 and Post-​1945 (Chicago: The University of Chicago Press, 2002). 142 143

miloš vec   145 Yanagihara, eds, East Asian and European Perspectives on International Law (Baden-​Baden: Nomos, 2004), 41–​55. Kingsbury, Benedict, ‘Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim’s Positive International Law’, in Michael Stolleis and Masaharu Yanagihara, eds, East Asian and European Perspectives on International Law (Baden-​Baden: Nomos, 2004), 139–​77. Koskenniemi, Martti, ‘Into Positivism: Georg Friedrich von Martens (1756–​1821) and Modern International Law’, Constellations. An International Journal of Critical and Democratic Theory 15 (2008): 189–​207. Mälksoo, Lauri, ‘The Science of International Law and the Concept of Politics. The Arguments and Lives of the International Law Professors at the University of Dorpat/​ Iur’ev/​Tartu 1855–​1985’, British Year Book of International Law 76 (2005): 383–​502. Nuzzo, Luigi, and Miloš Vec, eds, Constructing International Law—​The Birth of a Discipline (Frankfurt am Main: V. Klostermann, 2012).

Chapter 6

SOURCES OF INTERNATIONAL LAW IN THE NINETEENTH-​ CENTURY EUROPEAN TRADITION INSIGHTS FROM PRACTICE AND THEORY

Lauri Mälksoo

I. Introduction Why should we care about the understanding of the sources of international law in the nineteenth century? What can this information possibly teach us today? Is it not an impractical exercise of sorts, knowledge for knowledge’s sake, something that scholars might pursue for no deeper reason than that they must either publish or they will have to ‘perish’? Surely international law is to a significant extent

lauri mälksoo   147 a practically relevant field—​but what practical use can there be of the study of the history of sources of international law in the nineteenth century? The main lesson that the historical study of the sources of international law can teach is how the question of the sources has been related to which actors had the power on the international plane, and also how this power has shifted over time. In this sense, the catalogue of sources of international law is nothing final and carved in stone; it is subject to shifts of and struggles for power in international life. Even though both treaty and custom have been recognized among the central sources of international law for some centuries already, the way both of these sources have been constructed has also reflected power relations in the international community. In the twentieth century, two treaties became particularly important for the crystallization of the doctrine of sources in international law: on the one hand, the 1920 Statute of the Permanent Court of International Justice (PCIJ),1 Article 38 of which created an influential catalogue of sources of international law in the context of the jurisdiction of the PCIJ; and on the other hand, the adoption of the Vienna Convention on the Law of Treaties (VCLT) in 1969, which clarified, codified, and first of all universalized underlying principles of the international law of treaties which until then had been largely seen as part of European customary international law and practice.2 Both of these codifications kept the solutions regarding sources of international law in the state-​centric direction. The PCIJ was—​and the International Court of Justice (ICJ) is—​a court created exclusively for disputes between States, and Article 1 of the VCLT defines that this Convention applies (only) to treaties between States. Today, as international lawyers, we know about the huge impact of the PCIJ Statute for the crystallization of the doctrine of sources in international law. But how did the lawyers and diplomats of 1920 come to this codification and were there any alternative ideas available for the codification at the time? Can the study of the nineteenth-​century international legal ideas and practices help us to get a deeper understanding of what solution was chosen by lawyers and diplomats in 1920? It was ‘the long nineteenth century’ that intellectually paved the way for the codification of sources of international law in the context of the PCIJ in 1920.3 The second half of the nineteenth century was the time when international law became ‘modern’. In his well-​known treatise on the ‘rise’ and (more provocatively) ‘fall’ of modern international law, Martti Koskenniemi dates the beginning of modern international law and its scholarship to around 1870.4 Today’s international 1   Statute of the Permanent Court of International Justice (Geneva, 13 December 1920, League of Nations Treaty Series, vol. 6, pp. 380–​413). 2   Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331). 3   See Eric J. Hobsbawm, The Age of Empire: 1875–​1914 (London: Vintage Books, 1989). 4  Martti Koskenniemi, The Gentle Civilizer of Nations:  The Rise and Fall of International Law 1870‒1960 (Cambridge: Cambridge University Press, 2001).

148   nineteenth-century european tradition lawyers can much more easily identify with the narrative and sources of the late nineteenth-​century European international lawyers than with the already more distant approaches of the earlier representatives of the discipline such as Hugo Grotius, Samuel von Pufendorf, or Emer de Vattel, for example. At the same time, it would be insufficient to study the doctrine of sources in international law in full isolation from other central theoretical questions such as the exact legal nature of international law (is it ‘real law’ or not?), the range of subjects of international law, and the relationship between international and domestic law. Some of these questions and doctrines actually hang quite closely together with the doctrine of sources, and both conservatives and progressives can give different answers to each of these interrelated questions. Another starting point for the discussion in this chapter is based on the analytical distinction between the history of international law scholarship and the history of international law proper. Because textbooks, monographs, and scholarly articles are among the most immediately accessible ‘sources’ of international law from the past, scholars sometimes treat the history of ideas and writings almost as if it was the history of international law itself. However, the history of international law—​and that of sources of international law—​amounts to more than the history of international law textbooks and scholarly writings. It is necessary to go beyond the scholarly texts and take into account the general features of the practice of international law at a particular time. Thus, in order to proceed with the analysis of sources, we first have to establish some central features of European international law in the nineteenth century.

II.  European International Law in the Nineteenth Century: General Features The first significant feature of European international law in the nineteenth century was its non-​universal character and its close relationship with colonialism. As the title of this chapter indicates, international law in the nineteenth-​century European tradition was more or less equal to jus publicum europaeum or droit public d’Europe.5 It was essentially a regional international law, the practitioners and theoreticians of which were certain that it was the only international law out there. This 5   See e.g., Gerrit W. Gong, The Standard of ‘Civilization’ in International Society (Oxford: Oxford University Press, 1984); Alexander Orakhelashvili, ‘The Idea of European International Law’, European Journal of International Law 17 (2006): 315‒47.

lauri mälksoo   149 concept reflected first of all the unparalleled European power at the time. Typically, it was claimed that international law applied between ‘civilized’/​European/​Christian peoples, but did not regulate the mutual relationships between ‘non-​civilized’/​non-​ Christian nations or between civilized and non-​civilized nations. For example, Russia’s foremost international law scholar and practitioner of the Tsarist period, Fyodor Fyodorovich Martens (Friedrich von Martens) (1845‒1909) argued that in the relations of civilized and ‘non-​civilized’ peoples applied only some form of natural law, not international law proper.6 Some authoritative voices were already emerging in Europe in the nineteenth century that were in favour of extending the application of international law to non-​Christian nations (e.g. Japan, China) as well.7 However, in the nineteenth century this remained a minority opinion among European international elites; altogether, international law was not yet seen as ‘universal’. It is important to note this aspect because in the nineteenth century, the distinction between ‘civilized’ and ‘uncivilized’ peoples effectively limited the circle of subjects of international law to a handful of ‘civilized’ States in Europe and North America. At the same time, Professor Onuma Yasuaki of Tokyo has argued that notwithstanding the supremacist attitudes of the Europeans at the time, other world regions had their own versions of regional/​civilizational international law before international law in its European foundation was accepted as truly universal in the twentieth century.8 The European tradition of international law has almost completely ignored such other regional traditions or links and even today, we know very little about them in the context of international law.9 It can be presumed that the original practice of international relations in these other world regions was also based on regional customs and agreements, although such agreements may have come both in written and oral forms. It can also be hypothesized that such other regional versions of international law were closely connected with local religious traditions such as Islam and Buddhism. In comparison, the European tradition of international law drew both consciously and unconsciously from Christianity and the legacy of Roman law. The legacy of the nineteenth-​century concept according to which only ‘civilized’ peoples were subjects of international law matters also in the context of sources of international law because it decisively shaped the practice of what both the treaty 6   Fyodor Fyodorovich Martens, Sovremennoe mezhdunarodnoe pravo tsivilizovannykh narodov, vol. 1 (Moscow: Yuridickeskii kolledzh MGU, 1996) (reprint of the 1904 edn), p. 143. 7   E.g. the Swiss internationalist Johann Caspar Bluntschli. 8   Onuma Yasuaki, ‘When Was the Law of International Society Born?—​An Inquiry of the History of International Law from an Intercivilizational Perspective’, Journal of the History of International Law 2 (2000): 1‒66. 9   See, however, e.g. Charles H. Alexandrowicz, Treaty and Diplomatic Relations between European and South Asian Powers in the Seventeenth and Eighteenth Centuries, vol. 100, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1960), 203–​316.

150   nineteenth-century european tradition and the custom, i.e. the main sources of international law, meant. This doctrine of the standard of civilization was closely connected to colonialism and elements in the nineteenth-​century practice of international law such as unequal treaties, consular jurisdiction, etc. Essentially, treaty and custom as sources of international law meant something different within Europe/​the West and outside it. The doctrine enabled the European Empires to conquer and divide distant lands among themselves as if they were terra nullius, and formalize such conquests per international law via treaties and agreements.10 The second characteristic feature of the nineteenth-​century international law in Europe was that it was characterized by a quite heavily State-​centric normative world. Sociologically, State sovereignty—​for the relatively few Empires and States that existed—​was the most important characteristic of international law at the time. This aspect had two dimensions: the shortage of international organizations and the relative weakness of non-​State actors on the international plane. There were not yet significant international governmental organizations and multilateral dealings were conducted at non-​permanent international conferences and congresses, which gave rise inter alia to specialized studies in international law scholarship.11 However, from the perspective of international law, the outcome of such international conferences was considered relevant only if it was formalized as treaty or treaties; the European States were the full masters of such conferences and treaties. Consequently, unlike nowadays, the exact legal or even legislative status of the outcome of international governmental organizations (IGOs) was not yet debated, since they did not yet exist. Moreover, although internationally relevant private initiatives such as the Red Cross (1863) or the Institut de droit international (1873) were created precisely during the second half of the nineteenth century and became both active and well known at the time, there was no real discussion whether the results of their work might have automatically amounted to ‘sources of international law’ (per ‘soft law’, for instance). It was widely recognized that international law was made by the States and their representatives. Therefore, the work done in the framework of private initiatives such as the Institut de droit international was first of all an effort to lead international law experts and enthusiasts to bridge the gap between the theory and the practice of international law, to pave the way for the codification of (customary) international law, and to be helpful to European States who were recognized as the actual masters of international law. Furthermore, the focus on States rather than individuals or other private or transnational actors in the framework of international law was especially logical, since 10   See Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Köln: Greven, 1950); Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007). 11   See e.g., Witold Załęski, Die völkerrechtliche Bedeutung der Kongresse (Dorpat: H. Laakmann, 1874).

lauri mälksoo   151 a number of European States were monarchies, and some even autocracies—​at least not democracies in a contemporary sense. Major European States understood themselves as Empires, which was not only relevant overseas but also for example in Eastern Europe, where suppressed peoples that (re-​)emerged as nations in 1918 did not yet have their own statehood. Consequently, the approach to international law in practice was usually top down, far from being extensively concerned with individual or private interests. Domestic law too was often insufficiently democratic at the time; this could not but reflect itself also in the context of the understanding of sources of international law, and the discussion on ‘soft law’ and a wider range of sources coming from outside the States was certainly not widespread. The third important feature of European international law in the nineteenth century, and related to the centrality of State sovereignty, was that there were only very few international courts. Nowadays, international lawyers are quite used to assume when they are talking about the ‘application’ of international law (and its sources) that this activity would take place in international or domestic courts, or at least have something to do with the work of such courts and their cases. There are nowadays many important international courts, tribunals, and dispute settlement bodies: the ICJ as the continuator of the PCIJ, the European Court of Human Rights (ECtHR), the Law of the Sea Tribunal, the dispute settlement panels of the World Trade Organization, the Court of Justice of the European Union, etc. None of these international courts existed in the nineteenth century; no permanent international courts or tribunals existed at that time. The first international arbitration, the Alabama Claims arbitration, took place in 1872 in Geneva in accordance with the 1871 Treaty of Washington, in which the United States and Great Britain specifically established which three rules of international law the arbitrators had to interpret and apply in the case.12 In other words, the jurisdiction of the first international arbitration tribunal was very much controlled by the two contracting States. The Permanent Court of Arbitration—​although it was strictly speaking neither permanent nor a court—​was only created in 1899, during the first Hague Peace Conference. Thus, when the sources of international law were discussed and applied in the nineteenth century, their application in courts and other judicial bodies was not yet central, except perhaps only to some extent in the domestic courts of the United States and Great Britain, i.e. the main common law countries. International law was first of all expressed and applied by Emperors, Tsars and kings, governments, and Ministries of Foreign Affairs (MFAs) in their bilateral relations, presenting claims and counterclaims in their interactions with counterparts rather than in courts,   Treaty of Washington (Washington, 8 May 1871), < http://​www.marshall.edu/​special-​collections/​ css_​alabama/​pdf/​treaty_​washington.pdf>, accessed 18 June 2017. 12

152   nineteenth-century european tradition international or domestic. International precedents or case law were not usually court cases, but disputes in the annals of diplomatic history. Central to this understanding of the sources of international law were treaties concluded between the European sovereigns. For example, when Martens completed at the request of the Russian MFA his fifteen-​volume collection of imperial Russia’s treaties along with his own commentaries on the diplomatic history and the meaning of the respective treaties, it is very likely that in his view, what he had collected was international law and that he had acted as international law’s handmaiden by recording what international law ‘was’.13 However, Martens was also almost certainly aware that the authority to do so came exclusively from the Russian government, a fact that was also expressed on the cover of the volumes edited by Martens. Studying international law in its largely pre-​judicial era is eye-​opening, because it makes one aware of how relatively recent in historical terms the emergence of international adjudication has been. It also suggests that the extent of the judicialization of international law and international relations is nowadays occasionally exaggerated. Most central political questions of international life are still only seldom successfully solved in international courts.14 A number of such attempts fail at the jurisdiction phase. Moreover, there are important regional and national differences in terms of which countries accept or refuse international adjudication. Nowadays too, international law does not necessarily happen only and perhaps even primarily in international courts, but inter alia also in claims and counterclaims that political leaders and MFAs formulate to other members of the international community, also in the metaphorical court of the international public opinion. This political reality—​and the predominance of national executives in expressing this kind of international law—​was even more prominent and self-​evident in the nineteenth century, when the central events of international law were the diplomatic conferences such as the Congress of Vienna in 1815, the Congress of Berlin in 1878, the Berlin Conference (on Congo) in 1884–​1885, or the treaty-​making and codification conferences such as in St Petersburg in 1868 and in The Hague in 1899. This historical comparison reveals that today too, international law is not mainly expressed by the judges of the ICJ or the ECtHR, but at least equally importantly expressed, debated, and occasionally violated by the administrations led by Donald Trump, Angela Merkel, Vladimir Putin, and Xi Jinping, to name just a few. The judicialization of international law and international relations has been a historical project that appears relevant in the context of the sources of international law. In the 1830s, the legal positivist English lawyer John Austin suggested 13   Fyodor Fyodorovich Martens, Sobranie traktatov i konventsii zaklyuchennykh Rossieyu s inostrannymi derzhavami/​Recueil des Traités et Conventions, conclus par la Russie avec les puissances étrangères, 15 vols (St Petersburg: A. Böhnke, 1874‒1909). The collection was interrupted by the sudden death of Martens in 1909. 14  See also Benedict Kingsbury, ‘International Courts:  Uneven Judicialisation in Global Order’, in James Crawford and Martti Koskenniemi, eds, The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012), 203–​27.

lauri mälksoo   153 that international law was not ‘law properly so called’ and was mere ‘positive morality’ because it lacked, unlike domestic law, proper sanction backing it.15 The end of the nineteenth century had its Völkerrechtsleugner—​deniers of international law (as solidly binding law). For example, at the eve of World War I the German international law scholar Erich Kaufmann (1880‒1972) justified the extensive use of clausula rebus sic stantibus as an excuse for abandoning treaties that had been previously concluded.16 Thus, the creation of international courts can historically be seen as one response of the international community to make international law appear (more) like ‘law properly so called’ by bringing its implementation mechanism closer to the ‘sanctions’ missed by Austin and others. As already pointed out, the doctrine of sources cannot be meaningfully separated from the most fundamental question of international law’s legal character. If international law was not truly law, then what exactly would be the role of qualifying its sources, or the study of such sources? It would then be, stricto sensu, more of a moral-​philosophical inquiry than a legally relevant exercise. In this context, it is worth remembering, for example, that in the seventeenth century, natural law in its international applications (what we call today by succession of concepts ‘international law’) was in a number of European universities primarily studied and taught at the faculties of philosophy, rather than law.17

III.  The 1920 PCIJ Statute: The Triumph of Legal Positivism Over Ideas of Natural Law In his contribution to this volume, Miloš Vec argues that the extent to which the nineteenth century in the European tradition of international law has been characterized as positivist has been exaggerated.18 Indeed, some prominent nineteenth-​century   John Austin, The Province of Jurisprudence Determined: Being the First Part of a Series of Lectures on Jurisprudence, or, the Philosophy of Positive Law, 2nd edn (London: John Murray, 1861), pp. xlv. 16   Erich Kaufmann, Das Wesen des Völkerrechts und die clausula rebus sic stantibus (Tübingen: J.C. Mohr, 1911). 17   See Georg von Rauch, Die Universität Dorpat und das Eindringen der frühen Aufklärung in Livland 1690–​1710 (Essen: Essener Verlagsanstalt, 1943), pp. 296 ff, explaining that at the University of Dorpat (Tartu) natural law and authors like Pufendorf were primarily studied at the chair of practical philosophy rather than at the law faculty. 18   See ­chapter 5 by Miloš Vec in this volume. See also Miloš Vec, ‘Erscheinungsformen und Funktionen von Rechtsprinzipien in der Völkerrechtswissenschaft des 19. Jahrhunderts’, in R. Lieberwirth and H. Lück, eds, Akten des 36. Deutschen Rechtshistorikertages. Halle an der Saale, 10.‒14. September 2006 (Baden-​Baden: Nomos, 2008), 445–​63, 463. 15

154   nineteenth-century european tradition authors continued to theorize about international law in the natural law tradition.19 For example, John Westlake (1828‒1913), the Whewell Professor of International Law at the University of Cambridge, wrote his 1894 textbook on international law in a very ‘philosophical’ and natural law style. According to Westlake, international ‘jural’ (i.e. positivist) law and natural law were to be conceptually distinguished from each other, but obviously they were still interrelated.20 Another leading English author, Travers Twiss (1809‒1897) distinguished, at least historically, between three types of sources of international law: natural, conventional, and customary law.21 At the same time, as the saying goes ‘everything new is well-​forgotten old’—​the insight of the synergy of natural law and legal positivist traditions, i.e. no exclusive triumph of legal positivism, was already echoed in the late-​nineteenth-​century international law scholarship.22 For example, Martens argued in his leading Russian textbook of international law that at the time of his writing, in 1882, the outstanding international law professors were already synergists, and that while they took treaties and custom as the main basis of their presentations of international law, they did so—​unlike earlier hard-​core positivist jurists—​with critical and subjective minds.23 Thus, as far as the literature of international law goes, legal positivism and natural law continued in some form of dialogue in the late nineteenth century; only few legal positivists were as vehement as Karl Bergbohm, who wanted to root out natural law influences altogether.24 Yet in a number of ways at least, the codification of 1920 still expressed a certain triumph of ideas drawn from legal positivism over the natural law tradition. First of all, the PCIJ was a court exclusively for States, and therefore, the catalogue of sources of international law was made ‘digestible’ for States, the creators of this international court. As is well known to every student of international law, Article 38 of the PCIJ Statute adopted in 1920 recognized treaties and custom as primary sources of international law, followed by general principles of law ‘recognized by civilized nations’, and finally as ‘subsidiary means’, ‘judicial decisions’ and ‘the teachings of the most highly qualified publicists of the various nations’. Although explicit references to hierarchy were struck out from an earlier draft of Article 38, the list still reflects a certain hierarchy of sources of international law.

19   See e.g., James Lorimer, The Institutes of the Law of Nations. A Treatise of the Jural Relations of Separate Political Communities (Edinburgh: W. Blackwood & Sons, 1883), p. 19 (‘the law of nations is the law of nature, realised in the relations of separate political communities’). 20   John Westlake, Chapters on the Principles of International Law (Cambridge: Cambridge University Press, 1894), pp. 4, 15. 21   Travers Twiss, The Law of Nations Considered as Independent Political Communities. On the Rights and Duties of Nations in Time of Peace (Oxford: Clarendon Press, 1884). 22  Martens, Sovremennoe mezhdunarodnoe pravo tsivilizovannykh narodov, vol. 1, pp. 122‒3. 23  ibid. 24  Karl Bergbohm, Jurisprudenz und Rechtsphilosophie. Kritische Abhandlungen, vol. 1 (Leipzig: Duncker & Humblot, 1892), pp. 226–​8.

lauri mälksoo   155 It pushes the list of sources of international law in the positivist direction that was more acceptable by States. The travaux préparatoires of the Advisory Committee of Jurists in 1920 are quite instructive in this regard, and they symbolically reflect the defeat of certain natural law ideas to ‘legal positivist’ demands of concreteness and, well, positivity. It is well worth revisiting the debates of the Advisory Committee of Jurists in 1920. At the gathering of the Committee, the United States delegate Elihu Root (1845–​1937) warned his colleagues:  ‘[n]‌ations will submit to positive law, but will not submit to such principles as have not been developed into positive rules supported by an accord between all States’.25 Diplomatic accounts of the conference reveal that in the context of formulating the sources of international law or, to be more precise, the rules that the PCIJ was supposed to rely on, a dispute broke out between President Descamps and Root.26 The Belgian Baron Edouard Descamps (1847–​1933) presented his project according to which judges of the PCIJ would have applied the following four ‘rules’:  conventional international law, international custom, the rules of international law as recognized by the legal conscience of civilized nations, and international jurisprudence as a means for the application and development of law.27 However, Root objected to the third clause—​the rules of international law as recognized by the legal conscience of civilized nations—​because he ‘could not understand the exact meaning’ of it: ‘[d]‌id it refer to something which had been recognized but nevertheless had not the character of a definite rule of law?’28 Root made the point that the Committee must limit itself to ‘rules contained in Conventions and positive international law’.29 President Descamps then countered: The only question which it seems to me ought to be elucidated is whether after having recorded as law conventions and custom, objective justice should be added as a complement to the others. . . . It would be a great mistake to imagine that nations can be bound only by engagements which they have entered into by mutual consent . . . objective justice (la justice objective) is the natural principle to be applied by the judge. . . . In the first place I  would allow him to make use of the concurrent teaching of the authors whose opinions have authority. . . . In the second place I would allow him to take into consideration the legal conscience of civilized nations, which is illustrated so strikingly on certain occasions.30

  Advisory Committee of Jurists, Procès-​verbaux of the Proceedings of the Committee, June 16th‒ July 24th 1920, with Annexes. With a New Introduction by Jörg Kammerhofer (Clark:  The Lawbook Exchange, 2006), p. 287. 26  See Ole Spiermann, ‘ “Who Attempts Too Much Does Nothing Well”:  The 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice’, British Yearbook of International Law 73 (2002): 187–​260, 213 ff. 27 28   Advisory Committee of Jurists, Procès-​verbaux, p. 306.   ibid., pp. 293‒4. 29 30   ibid., p. 294.   ibid., pp. 322‒3. 25

156   nineteenth-century european tradition As an illustration, Baron Descamps referred to the ‘solemn declaration of the Powers’ (which became later known as the Martens clause), which had been placed in the Preamble of the Hague Convention in 1899.31 Indeed, it was from the Martens clause that Baron Descamps had borrowed his point 3, the rules of international law as recognized by the ‘legal conscience of civilized nations’. Another historical coincidence is worth noting: in The Hague in 1899, the Russian delegate Martens had borrowed the formulation of what would later become known as the Martens clause from the Belgian diplomatic proposal.32 Baron Descamps concluded his point:  ‘[l]‌ et us therefore no longer hesitate . . . to insert, amongst the principles to be followed by the judge in the solution of the dispute submitted to him, the law of objective justice (la loi de la justice objective)’.33 Åke Hammarskjöld (1893‒1937), the brother of the later UN Secretary General Dag Hammarskjöld, was given the task of writing private and confidential reports on the meetings of the Advisory Committee of Jurists to the head of the Legal Section of the Secretariat of the League of Nations. Hammarskjöld commented on the initiative of Descamps:  ‘[i]‌n the present matter [the President] had two hobbies—​the “inalienable rights” and the “juridical conscience of civilized nations”. He has already been compelled to give up the first, but I fear he will fight to the bitter end before giving up the second.’34 For the Advisory Committee of Jurists, the question whether there were any further ‘rules’ beyond treaty and custom was practically linked to the question of non liquet—​i.e. whether the Court could conclude that since there was no applicable law, it could not decide upon the case.35 Not wanting non liquet situations for the PCIJ meant that the drafters needed to accept or suggest certain other sources of international law beyond explicit treaties and custom. However, in the eyes of Root, the question of applicable rules was also very much connected to the problem of whether nations would agree to an essentially open-​ended catalogue of rules applied by international judges; Root did not think so.36 Baron Descamps responded that since the London Naval Conference in 1907, nations had ‘appealed to the law of nations, as formed not only by rules recognized by the civilized nations, but also by the demands of public conscience’.37 He went on to highlight ‘the fundamental law of justice and injustice deeply engraved on the 31   ibid., pp. 323‒4. Hague Convention II with Respect to the Laws and Customs of War by Land and its Annex: Regulations Respecting the Laws and Customs of War on Land (The Hague, 29 July 1899, 32 Stat. 1803). 32   See Rotem Giladi, ‘The Enactment of Irony: Reflections on the Origins of the Martens Clause’, European Journal of International Law 25 (2014): 847–​69. 33   Advisory Commitee of Jurists, Procès-​verbaux, p. 324. 34   Spiermann, ‘ “Who Attempts Too Much” ’, p. 217. 35 36   Advisory Committee of Jurists, Procès-​verbaux, p. 308.   ibid., p. 309. 37   ibid., p. 310.

lauri mälksoo   157 heart of every human being and which is given its highest and most authoritative expression in the legal conscience of civilized nations’.38 Nevertheless, Root made his own proposal supported by Lord Phillimore in which the biggest difference with the proposal of Baron Descamps was that ‘the rules of international law as recognized by the legal conscience of civilized nations’ had been replaced by the formula ‘the general principles of law recognized by civilized peoples’.39 A debate on the exact nature of ‘general rules’ ensued. Arturo Ricci-​Busatti from Italy alluded to the possibility that absent a specific rule, there would be ‘under certain special conditions’ a general rule under which ‘the stronger takes rightful precedence over the weaker’, a statement with which Professor de Lapradelle of France disagreed.40 At the same time, doubts about other sources beyond treaty and custom persisted. For example, Ricci-​Busatti denied ‘most emphatically that the opinions of authors could be considered as a source of law’, and was astonished that Root had agreed to a formula containing this idea.41 However, Lord Phillimore countered that doctrine was ‘universally recognized as a source of international law’.42 De Lapradelle argued that jurisprudence (case law) was more important than scholarly doctrine, since the judges in pronouncing a sentence had a practical end in view.43 Lord Phillimore also developed further important interpretations regarding what ‘general principles of law’ actually meant—​in his opinion, they were accepted by all nations in foro domestico, such as certain principles of procedure, the principle of good faith, the principle of res judicata, etc.44 De Lapradelle agreed that the principles which formed the bases of national law were also sources of international law.45 Ultimately, Root’s proposal regarding point 3 was adopted by consensus in the Advisory Committee. Hammarskjöld explained the outcome wryly:  ‘Root and Phillimore succeeded in persuading Descamps that the American formula was not so unlike his own as to make defeat too bad.’46 It was in such a way that international law had received its famous Article 38 of the (PCIJ) ICJ Statute. As seen from the discussions between Baron Descamps and Root, this outcome was not necessarily the only possibility. An alternative offered by Baron Descamps would have more strongly emphasized, beside agreements between States, also elements from the natural law tradition—​by referring to phrases such as ‘inalienable rights’, ‘legal conscience of civilized nations’, as well as ‘objective justice’. Since Grotius, natural lawyers had argued that there was a law audible in the voice of human conscience; that divine law was revealed to humans in such a way.47 The American jurist Charles Kent (1763–​1847) had held that ‘the Law 39 40 41   ibid., pp. 310‒11.   ibid., p. 344.   ibid., p. 315.   ibid., p. 332. 43 44 45   ibid., p. 333.   ibid., p. 336.   ibid., p. 335.   ibid., p. 335. 46   Spiermann, ‘ “Who Attempts Too Much” ’, p. 217. 47   See e.g., Henry Wheaton, Elements of International Law, 6th edn (Boston: Little, Brown & Co., 1855), pp. 2, 4. 38

42

158   nineteenth-century european tradition of Nations is a complex system, composed of various ingredients; it consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relation and conduct of nations’.48 Moreover, the hierarchy of the sources matters too—​even though the formal recognition of a hierarchy was deleted from Article 38 of the PCIJ Statute. In the Statute, ‘general principles’ were mentioned only after treaty and custom textually suggesting that ‘general principles’ were essentially there just for filling the lacunae if the sources of treaty and custom were unclear. That was not the older natural law perspective. In contrast, for example, the Russian international law scholar Dmitry Kachenovsky (1827‒1872) had held that ‘general principles of international law’, with a strong natural law component, was a ‘starting point’ for international legal analysis and that without this foundation, treaties in themselves could not have served as sources of international law.49 In 1920, thanks mainly to Root and Lord Phillimore, ‘general principles’ were reinterpreted, concretized, and in a way positivized—​instead of these principles referring to natural law thought, they were now suggested to be domestic legal principles common to different ‘civilized’ nations. In other words, they still had to be shown to be ‘positive’. It is therefore not surprising that Jörg Kammerhofer sums up the results of the 1920 Committee’s work in the following way: ‘[t]‌he result of the Commission’s labours on this point is a highly positivistic construct that, paradoxically, emerged from openly natural-​lawyerly discourse’.50 The very fact that today we ‘interpret’ Article 38 of the ICJ Statute and still take it as a starting point on the discussion of sources of international law is a testimony of the influence of the legal positivist approach. At the travaux préparatoires of 1920, the concreteness and verifiability of sources of international law as well as the principle of State sovereignty gained the upper hand over the philosophical and more speculative concepts of international law and justice which had occasionally also been popular earlier in the nineteenth century. Essentially, the representatives of the participating States in 1920 decided that they did not dare to let ‘the philosophers’ decide on the debates between States. This preference expressed in 1920 has had consequences for the further development of the discipline of international law and the hierarchies within it—​for example, international law experts nowadays tend to look with greater awe at what international judges rather than scholars-​theoreticians have said.51 48   Kent’s Commentaries on American Law, Part I, Lecture I, quoted in Twiss, The Law of Nations, p. 176. 49  Dimitri Kachenovsky, Kurs mezhdunarodnogo prava, Kharkov:  Universitetskaia tipografia, 1863, reprinted in Kachenovsky, Zolotoi fond rossiiskoi nauki mezhdunarodnogo prava, vol. 1 (Moscow: Mezhdunarodnye otnoshenia, 2007), pp. 116‒17. 50   Jörg Kammerhofer, ‘Introduction’, in Advisory Commitee of Jurists, Procès-​verbaux, p. xii. 51  See also Jean d’Aspremont, ‘If International Judges Say So, It Must be True: Empiricism or Fetishism?’, ESIL Reflection (4:19) (19 November 2015), , accessed 18 June 2017.

lauri mälksoo   159 In this sense, perhaps the relatively biggest ‘loser’ of the 1920 codification of sources of international law applicable at the PCIJ was the international law scholar-​philosopher-​theoretician. In contrast to the ‘positivist’ interpretation based on Article 38, nineteenth-​century treatises on international law when discussing sources of international law widely discussed the views of earlier international law publicists, up until Grotius (1583‒1645).52 Today, no discussion of the sources of international law would be based on what this or that writer has argued on sources and how these scholarly positions might differ. In the Statute of 1920, the writings of legal scholars were recognized only as auxiliary material, hierarchically below the ‘positive’ sources themselves and certainly at a lower rank than, for instance, in the work of an earlier American publicist Henry Wheaton (1785‒1848), who had started his list of sources of international law with ‘text writers of authority’.53 In contrast, emphasizing treaties as the main source of international law made diplomats important because when treaties were negotiated and concluded, it was diplomats who were there—​not theoretical law professors, who usually commented on these things from the distance. As Twiss had pointed out in 1883: ‘[t]‌he Conventional Law of Nations is sometimes spoken of as the Diplomatic branch of the Law of Nations’.54 Altogether, the victory of positivist ideas over natural law elements in Article 38 does reflect certain trends in the late-​nineteenth-​century scholarship of international law. For example, William Edward Hall (1835‒1894), a leading English publicist of the time, started his influential textbook of international law by laying out both the natural law and positivist approaches to international law but then consciously discarded the former. He mentioned two reasons for his preference: it was not at all clear what the natural law standard was, and in case there was a natural law standard, it still would always have needed to be specified by positive law.55 The Russian international law scholar Nikolay Korkunov (1853‒1904) held that the outdated concepts of natural law had held the doctrine of sources too long in captivity and made international law scholars fantasize about further sources of international law beside treaties, customs, and the writings of other publicists.56 The Frenchman Paul Pradier-​Fodéré (1827‒1904) emphatically made the point that unlike what natural law scholars had held in the past, ‘reason’ could not be a source of international law.57 52   See e.g., Paul Pradier-​Fodéré, Traité de droit international public européen & américain: suivant les progrès de la science et de la pratique contemporaines (Paris: A. Durand, 1885), pp. 51 ff. 53  Wheaton, Elements of International Law, p. 22. 54   See Twiss, The Law of Nations, p. 163. 55   William E. Hall, A Treatise on International Law, 3rd edn (Oxford: Clarendon Press, 1890). 56   Nikolay M. Korkunov, ‘Lektsii po mezhdunarodnomu pravu chitannye v Voenno-​Yuridicheskoi Akademii v 1883‒1884 godú, reprinted in Korkunov, Zolotoi fond rossiiskoi nauki mezhdunarodnogo prava, Vol. 1 (Moscow: Mezhdunarodnye otnoshenia, 2007), p. 321. 57   Pradier-​Fodéré, Traité de droit international public, p. 79.

160   nineteenth-century european tradition Since treaties and custom were recognized as primary sources of international law in 1920, it is also of interest how these sources had been understood and theorized in the preceding century. Altogether, it appears that the exact meaning of customary law was relatively underdeveloped—​later, it has been primarily the role of the ICJ to specify further in its case law what customary international law actually meant—​the famous elements of general practice and opinio juris. As an example from the nineteenth century that was much vaguer, consider the definition offered by Twiss: ‘[c]‌ustomary Law of Nations, which embodies those usages which the continued habit of Nations has sanctioned for their mutual interest and convenience’.58 Although customary law was seen as a ‘positive’ source of international law, at the time natural law thinking sometimes managed to influence the conceptualization of customary international law as well. For example, Frantz Despagnet (1857‒1906) of Bordeaux University argued that a customary rule could only become a rule of international law if it corresponded to the ‘conscience of humanity’.59 In this sense at least, the sources of international law were not always neatly divided into positivist and natural law segments; natural law thinking could intervene within positive sources as well. At the same time, the conceptualization of treaties was already very advanced in the nineteenth-​century European tradition,60 and one could encounter de facto (although not yet necessarily called as such) concepts like jus cogens already integrated in the theory of treaties, e.g. in the scholarly ‘codification’ of international law undertaken by the Heidelberg Professor Johann Caspar Bluntschli (1808‒1881).61 For example, the English jurist William E. Hall wrote: The requirement that contracts shall be in conformity with law invalidates, or at least renders voidable, all agreements which are at variance with the fundamental principles of international law and their undisputed applications, and with the arbitrary usages which have acquired decisive authority. Thus a treaty is not binding which has for its object the subjugation or partition of a country. . . . Thus a compact for the establishment of a slave trade would be void, because the personal freedom of human beings has been admitted by modern civilized States as a right which they are bound to respect and which they ought to uphold internationally.62

Jus cogens continues to be nowadays the main example of how natural law ideas were actually integrated as a ‘valve’, with the core positivist concept of treaty being recognized as the central source of international law. Just as Bergbohm had ‘warned’,63 natural law was like a hydra with many heads; one could cut off one of them but a  Twiss, The Law of Nations, pp. 150‒1.   Frantz Despagnet, Cours de droit international public, 2nd edn (Paris: J. B. Sirey, 1899), p. 62. 60  See e.g., Georg Jellinek, Die rechtliche Natur der Staatenverträge. Ein Beitrag zur juristischen Construction des Völkerrechts (Vienna: Alfred Hölder, 1880). 61   Johann Caspar Bluntschli, Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt (Nördlingen: C. H. Beck, 1868), pp. 235‒6. For international treaties generally, see ibid., pp. 231‒58. 62 63  Hall, A Treatise, p. 327.  Bergbohm, Jurisprudenz und Rechtsphilosophie, p. 111. 58

59

lauri mälksoo   161 number of new ones grew instead. In this sense, even the Advisory Committee of Jurists with its pragmatic and empirically oriented voices from Anglo-​Saxon countries could only subjugate natural law to positivist sources, not eliminate it from the work of the PCIJ and later of the ICJ. The predominantly positivist codifiers of the sources of international law were not able to completely expel natural law influences from the context of sources of international law (and international human rights law was not even properly born yet in 1920). Time and again, natural law argumentation openly comes up at least in dissenting and separate opinions of the ICJ when considerations of justice are set against conservative treaty obligations taken ad literam, and considerations of justice are requested to prevail.

IV. Conclusion Nowadays, it is often presumed that too much fixation at legal positivism in the context of the sources of international law can no longer be ‘progressive’—​for example, because it would leave out other actors than States and marginalize other forms of law-​making than treaties.64 Paradoxically, when legal positivist ideas about the sources of international law were codified in 1920, bringing the long nineteenth century to its logical although not inevitable final, it was also in many ways seen as ‘progressive’. Legal positivists thought that it was progressive to make international law ‘real law’ and to give it a real court. A certain minimalism and specificity about sources were seen as guarantors that international law would be taken seriously by its main stakeholders, States and their governments. It is then one of the paradoxes that the history of international law can teach us: how the understanding of ‘progressive’ has meant different things in different times. International legal life has evolved substantially since the nineteenth century. We no longer distinguish between ‘civilized’ and ‘uncivilized’ States (even though the emergence of ISIS (Islamic State of Iraq and Sham) may have started to change this back again). Both international organizations and international courts make the picture of international law a much livelier and more complex one than it was back then, when State sovereignty was über alles. However, the intellectual dichotomy between natural law and legal positivism still explains most debates in international law, and a number of attacks against Article 38 and its list of sources are essentially ‘progressive’ attacks from the platform of natural law against ‘too-​rigid’ legal positivism; the roles are reversed.   See e.g., some essays in the honour of a legal positivist, Jan Klabbers, in Rain Liivoja and Jarna Petman, eds, in International Law-​Making: Essays in Honour of Jan Klabbers (London: Routledge, 2014). 64

162   nineteenth-century european tradition

Research Questions • When the PCIJ Statute was adopted in 1920, what was the interplay of legal positivist and natural law ideas in the context of sources of international law? • In what ways was the conceptualization of sources of international law in the nineteenth century different from or similar to our time?

Selected Bibliography Advisory Committee of Jurists, Procès-​verbaux of the Proceedings of the Committee, June 16th‒ July 24th 1920, with Annexes. With a New Introduction by Jörg Kammerhofer (Clark: The Lawbook Exchange, 2006). Bergbohm, Karl, Jurisprudenz und Rechtsphilosophie. Kritische Abhandlungen, vol. 1 (Leipzig: Duncker & Humblot, 1892). Despagnet, Frantz, Cours de droit international public, 2nd edn (Paris: J. B. Sirey, 1899). Hall, William E., A Treatise on International Law, 3rd edn (Oxford: Clarendon Press, 1890). Lorimer, James, The Institutes of the Law of Nations. A  Treatise of the Jural Relations of Separate Political Communities (Edinburgh: W. Blackwood & Sons, 1883). Martens Fyodor Fyodorovich, Sovremennoe mezhdunarodnoe pravo tsivilizovannykh narodov, vol. 1 (Moscow: Yuridickeskii kolledzh MGU, 1996) (reprint of the 1904 edn). Pradier-​Fodéré, Paul, Traité de droit international public européen & américain: suivant les progrès de la science et de la pratique contemporaines (Paris: A. Durand, 1885). Spiermann, Ole, ‘ “Who Attempts Too Much Does Nothing Well”:  The 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice’, British Yearbook of International law 73 (2002): 187–​260. Twiss, Travers, The Law of Nations Considered as Independent Political Communities. On the Rights and Duties of Nations in Time of Peace (Oxford: Clarendon Press, 1884). Westlake, John, Chapters on the Principles of International Law (Cambridge:  Cambridge University Press, 1894).

Section  I V

THE HISTORY OF ARTICLE 38 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

Chapter 7

THE HISTORY OF ARTICLE 38 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE ‘A PURELY PLATONIC DISCUSSION’?

Ole Spiermann

I. Introduction Article 38 of the Statute of the International Court of Justice (ICJ) defines, according to its wording, what ‘[t]‌he Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply’ as so-​called sources or origins of international law or as ‘means for the determination of rules of law’.1 Four such sources are listed, namely ‘international conventions’, ‘international custom’, ‘the general principles of law’, and ‘judicial decisions and the teachings’. The actual wording of each source in Article 38 is more complicated, as a testimony to the time and circumstances of its drafting back in 1920 when framing the   Statute of the International Court of Justice (San Francisco, 26 June 1945, 33 UNTS 993).

1

166    history of article 38 of the statute of the icj Statute of the Permanent Court of International Justice (PCIJ), the predecessor of the present World Court. When it comes to the two first sources, treaty and custom, Article 38 displays a degree of carelessness defining the sources as, respectively, ‘international conventions, whether general or particular, establishing rules expressly recognized by the contesting States’, and ‘international custom, as evidence of a general practice accepted as law’. For one thing, one may speculate why treaty has to be (expressly) ‘recognized’ while custom has to be ‘accepted’. It could well be a distinction without a difference, but obviously a consensual approach had an appeal at the time. Moreover, the wording is archaic, not least when referring to ‘the general principles of law’ as being ‘recognized by civilized nations’ (a phrase neither used in relation to treaty nor custom). Article 38 includes ‘as subsidiary means for the determination of rules of law’ not only ‘judicial decisions’, but also, on an equal footing, ‘the teachings of the most highly qualified publicists of the various nations’. Altogether there is to Article 38 an evident ring of Buchrecht; that is ‘a system erected by greater and smaller authorities on the foundations of State practice and in its details often uncertain and contested’.2 This should be no surprise. As already mentioned, Article 38 was drafted in 1920, before the PCIJ took up its activities. But it is not only the origin of Article 38 that reflects books and theory; its application has also mainly been restricted to such books and theory. Article 38 is quoted in ‘the teachings of the most highly qualified publicists of the various nations’. But Article 38 has been of little relevance in the case law of the ICJ and its predecessor. The bulk of the drafting of the PCIJ Statute took place in the Advisory Committee of Jurists convened at the Peace Palace in the summer of 1920. The session was attended by representatives of the Legal Section of the Secretariat of the League of Nations, namely Under-​Secretary-​General Dionisio Anzilotti together with a young staff member, Mr Åke Hammarskjöld. Hammarskjöld, who was to become the first Registrar of the PCIJ, produced private and confidential reports on the meetings of the Advisory Committee to the Secretariat of the League. When it came to the first discussion on the provision on sources (which ended up as Article 38 of the Statute), Hammarskjöld did not regard the discussion as being of great practical value, reporting that ‘[a]‌s a purely platonic discussion it was very interesting, but the practical value of it was certainly not great’.3 This has been confirmed in the practice of the PCIJ and its successor.

2   Lassa Oppenheim, Die Zukunft des Völkerrecht (Leipzig: W. Engelmann, 1911), p. 11 (also favouring a consensual approach). ‘Buchrecht’ was translated into ‘book-​law’ in the English edition: Lassa Oppenheim, The Future of International Law (Oxford: Clarendon Press, 1921), p. 5. 3   As quoted in Ole Spiermann, ‘ “Who Attempts Too Much Does Nothing Well”: The 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice’, British Yearbook of International law 73 (2002): 187–​260, 216.

ole spiermann   167 It was Lord McNair who gave at least part of an explanation: Whereas I may have thought, as a teacher or as the author of a book or an article, that I had adequately examined some particular rule of law, I have constantly found that, when I have been confronted with the same rule of law in the course of writing a professional opinion or of contributing to a judgment, I have been struck by the different appearance that the rule of law may assume when it is being examined for the purpose of its application in practice to a set of ascertained facts.4

Actually, the drafting of Article 38 tells us more about international law and international legal argument process than does the wording of the provision itself. First, the Advisory Committee came to the question of sources only after having considered a provision on compulsory jurisdiction covering both ‘the interpretation of a treaty’ and ‘any question of international law’. Secondly, in discussing sources, treaty and custom were not in dispute. Rather, the discussion in the Advisory Committee was concerned with what to do in the absence of treaty and custom. The Advisory Committee was not ready to accept that treaty and custom exhausted international law. Also in the absence of treaty and custom, there could be a ‘question of international law’ to decide. At the same time, most members were unwilling to contemplate a non liquet; that is, non-​exercise of jurisdiction on the ground that international law is not clear. Therefore, the Advisory Committee looked for more sources. This might be a crucial insight in a book concerned with sources, almost whichever definition is given to the concept of sources. The discussion in the Advisory Committee revealed a need for international law that went beyond positive rules then identified with treaty and custom. By implication, the scope of international law could not be said to have been defined by positive rules, or at least not solely by such rules. The members of the Advisory Committee did not need sources to know the scope of international law. It was because they knew there was more to international law than what was covered by ‘positive rules’ that they looked for additional sources, not the other way around. Thirdly, and in order to appreciate this need for international law preceding so-​called sources, the Advisory Committee was clear that the addressee of Article 38—​that is, the international judge—​is not necessarily an international lawyer. It could well be a national lawyer. This may be equally telling. The rationale behind general international law, and all those ‘question[s]‌of international law’, the actual source from which it flows,​ its true origin, will not be found unless one visits the universe of national legal reasoning. It makes sense to distinguish between a national and an international 4  Arnold D. McNair, The Development of International Justice:  Two Lectures Delivered at the Law Center of New  York (New  York:  New  York University Press, 1954), pp. 16–​17; the passage is quoted in Robert Y. Jennings, ‘Gerald Gray Fitzmaurice’, British Yearbook of International Law 55 (1985): 1–​64, 49.

168    history of article 38 of the statute of the icj context, and it is impossible to conceive of the one without the other, yet the former remains the raison d’être of the latter. While the scope of international law can be expressed in terms of national lawyers’ need for a complementary and residual legal system, any attempt at determining the scope of national law by reference to some need shared by international lawyers would be unsuccessful. A legal system termed ‘inter-​national’ is a residual system, one that conceptually presupposes national law, not a system from which national law can be derived or otherwise determined. Those opposed are concerned not with the law, nor with its conceptual deep structure, but with meta-​legal justifications of law already given. The thing is that the wording of Article 38 is broad enough to encompass international legal argument as it unfolds in the practice of international law, i.e. treaty and general international law. In Article 38, general international law is justified or simply referred to as ‘international custom’, ‘general principles of law’, ‘judicial decisions’, ‘teachings’; and while one could easily devise more names, four such names are quite sufficient. It is not the names but the need for international law shared by national lawyers that is its actual source and true origin. By implication, Article 38 does not present an obstacle to the practice of international law in the ICJ.

II.  Compulsory Jurisdiction The establishment of the PCIJ had been foreseen in Article 14 of the Covenant of the League of Nations, and the Covenant contained another provision of relevance to a discussion on sources of international law at the time, namely Article 13 on peaceful settlement of disputes. Paragraph 2 read: Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration or judicial settlement.

The reference to (the interpretation of a) ‘treaty’ as well as (any question of) ‘international law’ coloured the background against which Article 38 of the Statute was drafted. This was also because the Advisory Committee subscribed to the notion of compulsory jurisdiction. Hence in the Advisory Committee the majority took the view that the PCIJ would only have jurisdiction as provided for in treaties, but that the PCIJ Statute should be such a treaty.5 Baron Edouard Descamps and Elihu Root, among others, stressed that the principle of compulsory jurisdiction had been 5   See Advisory Committee of Jurists, Procès-​verbaux of the Proceedings of the Advisory Committee of Jurists, June 16th–​July 24th 1920, with Annexes (The Hague: Van Langenhuysen Brothers, 1920), pp. 224–​32.

ole spiermann   169 recognized in 1907 and that ‘[i]‌t was now the duty of the Committee to realise this principle’.6 Lord Phillimore agreed with Root, and he was the first to put forward a proposal to this effect, suggesting that the PCIJ should have compulsory jurisdiction with respect to the four categories of disputes that according to Article 13 (2)  of the Covenant were ‘generally suitable for submission to arbitration’.7 Lord Phillimore’s proposal, as amended by Francis Hagerup,8 won the support of most members of the Advisory Committee and overshadowed the less precise proposal of Descamps.9 In turn, Descamps put forward a new proposal that he had discussed ‘with his colleagues, especially with Lord Phillimore’,10 and which indeed very much resembled Phillimore’s amended proposal. It started as follows: The PCIJ is competent to decide disputes concerning cases of a legal nature, that is to say those dealing with: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of any international obligation; d. the extent and nature of reparation to be made for the breach of an international obligation; e. the interpretation of a sentence rendered by the Court.11

In the course of the discussion, it had been a widely held view articulated in particular by Albert de Lapradelle that the text of Article 13 (2) of the Covenant was not satisfactory,12 but Root had somewhat closed that discussion, saying that ‘great as might be the reputation of M. de Lapradelle, it would be difficult for it to outweigh the authority of a text agreed on by the States’.13 There had been some further discussion as to whether paragraph b, ‘any question of international law’, comprised more than customary law. Ricci-​Busatti had tended to think not and suggested, with the support of Lapradelle and Hagerup, changing the wording to ‘the application of a general rule of international law’.14 In contrast, Descamps’ position had been that any other formulation ‘might be interpreted in too limited a manner’. According to a draft report prepared by Hammarskjöld, ‘[t]‌he danger of conferring on a Court entrusted with the right of compulsory jurisdiction the right to deduct itself the rules according to which the sentences are to be given was put forward with much force:  a provision to that effect would make the whole plan unacceptable. It was remarked that this point transferred the discussion from the competence of the Court to the material law to be applied by it.’15

7   ibid., pp. 231 (Descamps), 229 (Root).   ibid., pp. 252, 235. 9 10   ibid., pp. 253, 237–​8.   ibid., pp. 242–​4, 254–​6.   ibid., p. 259. 11 12 13 14   ibid., p. 272.   ibid., p. 285.   ibid., p. 287.   ibid., p. 284. 15   As quoted in Spiermann, ‘ “Who Attempts Too Much Does Nothing Well” ’, p. 216. 6 8

170    history of article 38 of the statute of the icj

III. Sources 1. The Way to General Principles of Law In the continued deliberations in the Advisory Committee, two of the sources, treaty and custom, were not in dispute, but the proposal of Descamps to include ‘the rules of international law as recognised by the legal conscience of civilised nations [la conscience juridique des peuples civilisés]’ met strong opposition, especially from Root and Phillimore.16 Root repeatedly stressed that States would only accept the PCIJ’s compulsory jurisdiction if the sources to be employed by it were well defined.17 According to Root, ‘[n]‌ations will submit to positive law, but will not submit to such principles as have not been developed into positive rules supported by an accord between all States’;18 here, Root referred to principles that were ‘differently understood in different countries’.19 Descamps and Lapradelle sought to balance Root’s argument by saying that it did not concern the PCIJ’s jurisdiction, nor the substantive law to be applied by the PCIJ.20 However, the case was exactly the opposite, and Lapradelle came closer to the problem when suggesting, with Root’s approval, that ‘[i]‌t was only in connection with Paragraph b:  “any point of international law”, that Mr. Root felt he must oppose the application of the principles mentioned in numbers 3 and 4 of the President’s draft, dealing with the rules to be applied’.21 The other members of the Advisory Committee did not really disagree with Root’s conception of ‘positive rules’, i.e., treaty and custom. But they found that positive international law was not solely made up of such rules. Thus, Loder held that as regards ‘rules which were . . . not yet positive law . . . it was precisely the Court’s duty to develop law, to “ripen” customs and principles universally recognised, and to crystallise them into positive rules’.22 Hagerup reached the same conclusion, although by a different route. In his view, ‘there might be cases in which no rule of conventional or general law was applicable’.23 Hagerup argued that ‘[a]‌rule must be established to meet this eventuality, to avoid the possibility of the Court declaring itself incompetent (non liquet) through the lack of applicable rules’, and that this rule should be the PCIJ having ‘the power to apply principles to fill the gaps in positive law’. Most members of the Advisory Committee shared this unwillingness

16   Advisory Committee of Jurists, Procès-​verbaux, pp. 306, 293 (Descamps); pp. 286–​7, 293–​4 and 308–​10 (Root); p. 295 (Phillimore). 17   See, in particular, ibid., pp.  286–​7, 293–​4, and 308–​10. Root was followed by Phillimore:  ibid., p. 295. 18 19   ibid., p. 287.   ibid., p. 308. 20 21   ibid., pp. 287, 293, and 318; see also ibid., pp. 311 (Loder), 317 (Hagerup).   ibid., p. 313. 22 23   ibid., p. 294.   ibid., p. 296 and also pp. 307–​8.

ole spiermann   171 to contemplate a non liquet.24 In the end, a compromise was worked out and Article 38 now provides for ‘the general principles of law recognized by civilized nations’.25

2. Non Liquet In the context of the discussions, the question of a non liquet was an argument developed by the original supporters of the President’s proposal. It was argued that, without a third source, the PCIJ would in some cases have no option but to declare that international law was not clear (non liquet), thereby ending the proceedings without giving an answer to the specific issues raised.26 Perhaps this argument convinced some members of the Advisory Committee; but Phillimore founded his approval of the third source on principles of common law,27 while Root accepted the compromise only because the formula reproduced pronouncements of the United States Supreme Court.28 Two members of the Advisory Committee, Ricci-​Busatti and Lapradelle, stressed that adding yet another source did not necessarily exclude the possibility of a non liquet.29 This was true, of course. In theory, the exclusion of a non liquet would seem to have the potential to turn sources theory into a mere cipher. In order to avoid a non liquet, lawyers may take the view that they need international law, regardless of the possible emptiness of the ‘sources’ of international law. Ricci-​Busatti pointed to a possible solution to this problem. In his view, ‘[t]‌hat which is not forbidden is allowed’.30 So if in a specific case the PCIJ concluded that no international law was applicable, it would have to infer that the State in question had been allowed to do what it did. This solution to the problem of a non liquet was so simple that it ought to have prevented a prolonged discussion. But the spectre of a non liquet haunted lawyers because they were concerned with issues which, in their view, unquestionably come within international law; the principle ‘[t]‌hat which is not forbidden is allowed’ is conditional upon there being no international law applicable, but this was not the case envisaged here. Whatever the so-​called sources of international law, there has been an unmistakable need for international law. Ricci-​Busatti, for his part, did not find that the principle ‘[t]hat which is not forbidden is allowed’ was pertinent to all

25   See also ibid., p. 311 (Loder) and p. 312 (Lapradelle).   ibid., p. 344 and p. 331. 27   ibid., p. 294 (Loder) and pp. 295–​6 (Lapradelle).   ibid., pp. 316, 335. 28   See James Brown Scott, The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists (Washington: Carnegie, 1920), pp. 107–​11, referring to, inter alia, Thirty Hogheads of Sugar v Boyle, 9 Cranch 191, 198 (1815) and The Paquete Habana, 175 US 677, 700 (1900); see also Hilton v Guyot, 159 US 113, 228 (1895). 29   Advisory Committee of Jurists, Procès-​verbaux, pp. 336, 338. 30   ibid., pp. 314–​5. Phillimore and Hagerup appeared to accept this view, while it was questioned by Lapradelle; ibid., pp. 316, 317, and 320, respectively. 24

26

172    history of article 38 of the statute of the icj cases as for which no ‘positive rule of international law’ applied. On the contrary, ‘there are other principles of the same character, (that which forbids the abuse of right or that of res judicata, etc.), and certain general rules of equity and justice which come into play in each case’.31 This is further illustrated by the position adopted by Descamps. In respect of the phrase ‘any question of international law’ as used in Article 13 (2) of the Covenant of the League of Nations, Descamps said that it had been ‘suggested by the fact that there are two kinds of international law: the law founded on special conventions, and general international law’.32 His view appeared to be that ‘general international law’ was more than positive rules, whether based on treaty or custom. When Descamps defended his original draft provision on the sources of international law against Root’s criticism, he said that: it is absolutely impossible and supremely odious to say to the judge that, although in a given case a perfectly just solution is possible: ‘You must take a course amounting to a refusal of justice’ merely because no definite convention or custom appeared. What, therefore, is the difference between my distinguished opponent and myself? He leaves the judge in a State of compulsory blindness forced to rely on subjective opinions only; I allow him to consider the cases that come before him with both eyes open.33

In other words, cases were foreseen that came within Article 13 (2) of the Covenant but for which there were no ‘positive rules’; that is, ‘no definite convention or custom’ with which to solve them. In Descamps’ words, ‘if the competence of the Court were confined within the limits of positive recognised rules, too often it would have to non-​suit the parties’.34 Even Root would seem to have come round. At a later point, he said about re-​election of judges and the continuity of the PCIJ’s case law: ‘[t]‌his continuity was still more important in international law than in the case of a national jurisdiction, since, in the latter case, positive law could always be applied, whereas an international judge must often be guided by his own conceptions of law’.35 The discussion in the Advisory Committee revealed a need for international law that went beyond positive rules then identified with treaty and custom. By implication, the scope of international law could not be said to have been defined by positive rules, or at least not solely by such rules. The members of the Advisory Committee did not need sources to know the scope of international law. It was because they knew there was more to international law than what was covered by ‘positive rules’ that they looked for additional sources, not the other way around. Theirs was not so much a discussion about treaties as about how to respond to a need for international law where treaties were lacking. Custom was found insufficient, hence the 32   ibid., p. 315.   ibid., p. 264.   ibid., pp. 323, 318. Descamps also relied on the Martens clause: see ibid., pp. 323–​4, 310, 511. He also made reference to equity: ibid., p. 48. 34 35   ibid., p. 320.   ibid., p. 471. 31

33

ole spiermann   173 third source, termed ‘the general principles of law recognised by civilised nations’, was called for. This phrase had been coined, or at least used, by the United States Supreme Court, and the principles in question were supposedly to be found by national lawyers by some process of collective introspection. This points to the rationale behind international law as precisely being to complement national law where seen by national lawyers as insufficient because relating to more than one State. In such cases, it may be supposed that national lawyers belonging to different national legal systems can be brought to seek the same international basis for their decision-​making, even though no legal rules have yet crystallized. In 1920, national lawyers were in need of more answers from international law than there were positive rules to provide. And so the PCIJ had to make law; it had to fill the scope of general international law.

3. The International Judge One should not read Article 38 of the Statute in isolation from the provisions in the Statute defining its addressee; that is, the international judge. These provisions, which also go back to the Advisory Committee, would not seem to be aiming narrowly at the international lawyer. In its report, the Advisory Committee stated that it had had in mind lawyers who possessed ‘the openmindedness necessary in international law suits’ and were ‘capable of rising above the level of national justice to international affairs’.36 The members of the Advisory Committee disagreed as to whether every good national judge would make a good international judge.37 One could imagine a similar debate in respect of any kind of specialized tribunal within a national legal system. According to Article 2, ‘[t]‌he Court shall be composed of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law’. So the judges would be either eminent national lawyers, suitable for election to the highest judicial offices in national legal systems, or international lawyers ‘of recognized competence’. In selecting the candidates for election, the so-​called national group which makes the nomination under Article 4 of the Statute is ‘recommended to consult its highest court of justice, its legal faculties and schools of law, and its national academies and national sections of international academies devoted to the study of law’. Once again prominent national lawyers, whether members of courts, faculties, or   ibid., pp. 698, 707.  For strong views against, see ibid., pp.  448 (Ricci-​ Busatti), 449 (Descamps), 449 and 553 (Lapradelle), 611 and 645 (Altamira). But see also ibid., pp. 191 (Phillimore), 448 (Root). 36 37

174    history of article 38 of the statute of the icj academies, are given a role, this time as advisors in selecting the candidates for election. As regards the electors, Article 9 of the Statute provides: At every election, the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured.

In the Advisory Committee, the phrase ‘the representation of the main forms of civilization and of the principal legal systems of the world’ had been devised to guarantee each of the Great Powers a judge.38 Yet it is noteworthy that one way to express this idea was by referring to ‘the principal national legal systems’. In its report, the Advisory Committee stated that there had been no intention of referring to ‘the various systems of International Law’. While national lawyers may have agreed, broadly speaking, on the scope of international law, their conception of the content of international law would almost unavoidably have been coloured by national tendencies and traditions suggesting parochial views of international law. In a passage that emphasized the formidable task facing the judges to be elected, the report of the Advisory Committee stated: Doubtless, on certain matters, for instance in Naval Prize Law, two systems of European jurisprudence exist, or at any rate did exist before the War; perhaps, on some points, differences still exist between the respective methods used by Europeans, Americans, or Asiatics, in dealing with questions of International Law; but no matter what the main national tendencies in International Law may be, the meaning of the expression adopted by the Committee is not and cannot be to maintain existing distinctions between various conceptions of International Law, for such an intention would be opposed to the guiding principle upon which the establishment of a single Court of Justice for all nations is based: that is to say, the principle of the unity and universality of International Law.39

By referring to ‘the principal legal systems of the world’ in Article 9, what the Advisory Committee had in mind was the ‘distinct systems of legal education’ and so to ‘ensure that, no matter what points of national law may be involved in an international suit, all shall be equally comprehended’. It was added that it was not enough to recommend representation of ‘the great legal systems of the world’. It was ‘an essential condition’ that also the main forms of civilization were represented ‘if the Permanent Court of International Justice is to be a real World Court for the Society of all Nations’.40 That being said, there would seem to have been no shared understanding in the Advisory Committee as to the exact meaning of ‘the main forms of civilization and the principal legal systems of the world’. To sum up, there had been no clear distinction—​at least not at the time when originally the Statute was framed—​between international and national lawyers. It was not a view prevailing in the Advisory Committee that in 1920 international judges   See Descamps’ proposal to this effect: ibid., pp. 28, 49, 111, 132–​3, 356 and 362.   ibid., pp. 709–​10 and also ibid., p. 200 (Lapradelle), p. 308 (Root), pp. 369–​70 (Altamira), and p. 384 (Adatci). 40   ibid., p. 710. 38 39

ole spiermann   175 were available for a new PCIJ. International judges were rather an ideal, which it was hoped could be achieved by moulding national judges and other national lawyers. Thus, individual members of the Advisory Committee referred to national judges who ‘internationalise[d]‌themselves—​as Minéichirô Adatci liked to express it, to “deify” themselves’, or who were ‘not denationalised but super-​nationalised’.41 At the same time, the need for making international law international was envisaged. There is no clearer way to say that in order to come round to international law, one has to be a national lawyer, or at least to be familiar with national lawyers’ ways of reasoning. International law is the response to a need felt by national lawyers for law that supplements and separates the several national legal systems, thus the spectre of a non liquet. This need—​and not the so-​called sources defined in what became Article 38 of the Statute—​is the actual source and true origin of international law. This is why international law, though ‘international’, is ‘law’, and why it is often taught as part of university courses in national law. From national legal reasoning comes the idea of sovereignty. Each State is sovereign, the essential feature of this being that each State is the supreme master of a national legal system. But national law is unsuited to govern issues conceived by national lawyers as being related to more than one State; for if subjected to the national legal system of another State, the former State would be subjected to the latter State. And so in that respect it would not be a State, or at least not a sovereign and independent State. As a residual and complementary legal system, international law covers legal issues that national lawyers take cannot be conveniently dealt with by a national legal system. National lawyers are likely to agree, broadly speaking, on which these issues are, and so on the scope of international law. On the other hand, national lawyers’ conceptions of the content of international law will almost unavoidably be coloured by national tendencies and traditions and so a likely subject of disagreement. How to solve such disagreements and which answers to give to the questions referred from national law—​in order to avoid a non liquet—​was for the future judges to decide, or at least indicate.

IV.  Two Judgments and a Concluding Reflection The validity of observations presented in this chapter may be illustrated by two of the judgments of the ICJ and its predecessor appealing most strongly to books and theory.   See ibid., p. 187 (Adatci) and p. 534 (Lapradelle), respectively.

41

176    history of article 38 of the statute of the icj

1. The Lotus Case In 1926, the Committee of Experts for the Progressive Codification of International Law had considered the criminal competence of States in respect of offences committed outside their territory. James Brierly and Charles de Visscher, who had prepared a report on the matter to the Committee, had partly disagreed, and the Committee concluded that ‘international regulation of these questions by way of a general convention, although desirable, would encounter grave political and other obstacles’.42 When in the Lotus case the following year it fell to the PCIJ to resolve the dispute as to Turkey’s exercise of criminal jurisdiction over a French officer on a French ship, there was no hint of a non liquet, perhaps except for the fact that the judges had split evenly, with the President having the casting vote. One particular passage from the opening of the PCIJ’s reasoning on the merits was a red rag to the Buchrecht. According to the majority: International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will [la volonté de ceux-​ci] as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-​existing independent communities [la co-​ existence de ces communautés indépendantes] or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.43

The well-​known formula found in the last sentence reminded one of the discussion in the Advisory Committee and the solution to the question of non liquet offered by Ricci-​Busatti. However, the real divide in the PCIJ was the question whether international law was needed in relation to jurisdiction to prescribe. This was the position of the six judges dissenting. The majority consisting of the six other judges disagreed, although they did consider whether criminal jurisdiction formed a special case: Nevertheless, it has to be seen whether the foregoing considerations really apply as regards criminal jurisdiction, or whether this jurisdiction is governed by a different principle: this might be the outcome of the close connection which for a long time existed between the conception of supreme criminal jurisdiction and that of a State [entre la suprême juridiction pénale et la notion d’État], and also by the especial importance of criminal jurisdiction from the point of view of the individual [la personnalité humaine].44

42   Shabtai Rosenne, ed., Committee of Experts for the Progressive Codification of International Law, vol. 2 (Dobbs Ferry: Oceana Publications, 1972), p. 9; see also ‘The “Lotus” Case: Acts and documents relating to Judgments and Advisory Opinions given by the Court. Part III’, PCIJ Rep Series C No. 13-​II, pp. 371–​2, 414. 43   The Case of the S.S. “Lotus” (France v Turkey) (Judgment) PCIJ Rep Series A No. 10 (1927), p. 18. 44  ibid., p. 20 and also p. 21 regarding ‘precedents offering a close analogy to the case under consideration’.

ole spiermann   177 This was a window, as it were, to an inherent vagueness of general international law. However, the window was immediately closed. The majority seemed willing in this respect to adopt a modest approach, taking what could otherwise have been an inherently vague situation under general international law, ‘the existing lacunæ’,45 to be a situation not governed by international law (unless consent and treaty could be established).

2. The North Sea Continental Shelf Cases Another significant judgment was the North Sea Continental Shelf cases from 1969 involving delimitation of the continental shelf. Again, the question of non liquet loomed large. Indeed, Jan Verzijl recommended the ICJ to take the following course: How I should like to help you with my rules, but alas, I have not yet been able to reflect sufficiently about the vast problems involved in this entirely new subject matter; excuse me therefore and be content for the moment with attempts at an amicable settlement; but I promise you that I will do my utmost to ensure that in future I shall no longer be obliged to leave you in the lurch.46

Having analysed and dismissed a number of arguments before it, the ICJ came to the conclusion that neither treaty nor custom were applicable to the delimitation between the parties (Denmark and The Netherlands versus Germany): The legal situation therefore is that the Parties are under no obligation to apply either the 1958 Convention, which is not opposable to the Federal Republic, or the equidistance method as a mandatory rule of customary law, which it is not.47

However, rather than a statement of non liquet, the ICJ continued, thereby confirming the need for international law that comes before sources: But as between States faced with an issue concerning the lateral delimitation of adjacent continental shelves, there are still rules and principles of law to be applied; and in the present case it is not the fact either that rules are lacking, or that the situation is one for the unfettered appreciation of the Parties.48

As it turns out, the ICJ applied a principle of equity securing resolution in international law of specific disputes albeit not in a highly foreseeable manner.

 ibid., p. 19.   Jan H. W. Verzijl, International Law in Historical Perspective, vol. 1 (Netherlands: Springer, 1968), p. 277. 47   North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (Judgment) [1969] ICJ Rep 3, 46, para. 83. 48  ibid. 45

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3. Concluding Reflection The Lotus was a borderline case concerning whether there actually was a need for international law, while in the North Sea Continental Shelf cases the need for international law was indisputable and also acknowledged by the ICJ, despite the absence of treaty and custom. It is this need for international law that forms the actual source or true origin of our joint occupation. In turn, the suggestion is that sources theory not proceeding on this basis is meta-​legal in kind and mainly concerned not with international law but with the justification of international law.

Research Questions • What is the source of sources theory, i.e. why do international lawyers discuss sources of international law? • In what ways, if any, would it have affected the theory or practice of international law if the Statute of the ICJ (and its predecessor) had not included a provision on so-​called sources of international law?

Selected Bibliography Anzilotti, Dionisio, Cours de droit international (Paris: Recueil Sirey, 1929). Hammarskjöld, Åke, Juridiction internationale (Leiden: A.W. Sijthoff, 1938). Huber, Max, Die soziologischen Grundlagen des Völkerrechts (Berlin: W. Rothschild, 1928). Lauterpacht, Hersch, The Development of International Law by the International Court of Justice (London: Stevens, 1958). Shahabuddeen, Mohamed, Precedent in the World Court (Cambridge: Cambridge University Press, 1996). Sørensen, Max, Les sources du droit international: Etude sur la jurisprudence de la Cour permanente de justice internationale (Copenhagen: E. Munksgaard, 1946). Spiermann, Ole, International Legal Argument in the Permanent Court of International Justice (Cambridge: Cambridge University Press, 2005).

Chapter 8

THE HISTORY OF ARTICLE 38 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE THE JOURNEY FROM THE PAST TO THE PRESENT

Malgosia Fitzmaurice

I. Introduction This chapter presents and analyses the history of Article 38 of the Statute of the International Court of Justice (ICJ) to reflect on the present status of this provision.1

  Statute of the International Court of Justice (San Francisco, 26 June 1945, 33 UNTS 993).

1

180    history of article 38 of the statute of the icj It examines the sources of international law through the prism of their historical development, including potential ‘new’ sources of international law (acts of international organizations, unilateral acts of States, and soft law), which emerged long after the ‘wise men’ of the Advisory Committee of Jurists completed their task of drafting Article 38. The main question of this chapter is whether there is a tangible link between the notion of sources then and now, especially in international judicial practice. The analysis reflects on the drafting history of Article 38 in order to emphasize the pertinent points of departure from, and the development of, original ideas. Rather than engaging in a theoretical analysis of sources, the reflection focuses on the development of customary international law and general principles of law from their conceptualization by the Advisory Committee to the present, by reviewing decisions of the ICJ and other international courts and tribunals. The application of customary international law, in particular, are analysed to determine whether it is stringent and constrained, or liberal and free, applied in a ‘dance-​floor’ manner, with all dance steps permitted.2 The question of the role of judicial decisions as a source of international law is also addressed; treaties, however, are not analysed in this chapter. While they have greatly evolved, treaties are not disputed as a source of international law.

II. The Past 1. The Origins of Article 38 The drafting procedure of the Statute of the Permanent Court of International Justice (PCIJ) was very complex.3 Manley Hudson tersely stated that ‘[i]‌ndeed, a   The phrase was coined by Jean d’Aspremont, who identified a current trend among international lawyers to disregard the constraints shaping the theory of customary international law; see Jean d’Aspremont, ‘Customary International Law as a Dance Floor’, Part I, EJIL: Talk! (Blog of the European Journal of International Law), 14 April 2014, ; and Part II, 15 April 2014, , accessed 10 May 2016. 3   See Manley O. Hudson, A Treatise on the Permanent Court of International Justice, 1920–​1942 (New York: The Macmillan Company, 1934), pp. 105–​21; Ole Spiermann, ‘ “Who Attempts Too Much Does Nothing Well”: The 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice’, British Yearbook of International Law 73 (2002):  187–​260. The Advisory Committee included ten members:  Baron Édouard Descamps (President, Belgium), Bernard Loder (Vice-​ President, Netherlands), Minéichirô Adatci (Japan), Francis Hagerup (Norway), Raoul Fernandes (Brazil), Albert de Lapradelle (France), Elihu Root (United States, advised by James Brown Scott), Lord Phillimore (United Kingdom), Rafael Altamira (Mexico), and Arturo Ricci-​Busatti (Italy). The Secretary-​General was Dionisio Anzillotti (Italy). The Committee held thirty-​five meetings between 16 June and 24 July 1920. 2

malgosia fitzmaurice   181 careful review of the history of the drafting of the Statute leaves the impression that it contains but few ideas, and that many of its provisions are based upon drafts previously elaborated and upon previous experience’.4 This is a very apt remark, as the text of Article 38 was derived, at least to a certain extent, from international practice.5 The Advisory Committee of Jurists relied on pre-​existing international courts and instruments, such as Article 15, respectively Article 37 (1), of the 1899 and 1907 Conventions for the Pacific Settlement of International Disputes,6 and the 1907 Hague Convention XII Relative to the Creation of an International Prize Court.7

2. The Background: The Advisory Committee of Jurists and the Drafting of Article 38 Léon Bourgeois, representing the Council of the League of Nations, made the following speech to inaugurate the work of the Committee: Gentlemen, you are about to give life to the judicial power of humanity. Philosophers and historians have told us the laws of growth and decadence of Empires. We look at you, gentlemen, for the laws that will assure the perpetuity of the only empire that can never decay, the empire of justice, which is the expression of eternal truth.8

There were several drafts of Article 38 during the discussions of the Committee. Most debated were the ‘general principles of law’, a concept which was found to be perplexing. Lord Phillimore explained that the general principles of law referred to in Article 38 (3) were ‘these which were accepted by all nations in foro domestico’.9 In general the inclusion of treaty and custom as the basis of adjudication did not 4  Hudson, A Treatise, pp. 123–​4. The work of the Committee of Jurists was largely influenced by the deliberations of The Hague Peace Conferences in 1899 and 1907 and by the ‘Five-​Power-​Plan’ drawn up by Switzerland, Norway, Denmark, Sweden, and the Netherlands in The Hague in 1920, which was itself based on The Hague Conventions for the Pacific Settlement of Disputes. The 1907 project for the creation of the Court of Arbitral Justice was also a source of inspiration for the organization of the Court. 5  See e.g., Alain Pellet, ‘Article 38’, in Andreas Zimmerman, Karin Oellers-​Frahm, Christian Tomuschat, and Christian J. Tams, eds, The Statute of the International Court of Justice. A Commentary, 2nd edn (Oxford: Oxford University Press, 2012), 731–​870, 735–​7. 6   Convention for the Pacific Settlement of International Disputes (The Hague, 29 July 1899, 1 Bevans 230); Convention for the Pacific Settlement of International Disputes (The Hague, 18 October 1907, 1 Bevans 577). 7   See Art. 7 of Convention (XII) Relative to the Creation of an International Prize Court (Hague Convention XII) (The Hague, 18 October 1907, 205 CTS 381); this Convention never came into force. 8   See the speech of Léon Bourgeois before the Advisory Committee of Jurists on 16 June 1920, as cited in Antonio Sanches de Bustamante, The World Court (New York: Macmillan, 1925), p. 97. 9   Advisory Committee of Jurists, Procès-​verbaux of the Proceedings of the Advisory Committee of Jurists, June 16th–​July 24th 1920, with Annexes (The Hague: Van Langenhuysen Brothers, 1920), p. 335 (Lord Phillimore).

182    history of article 38 of the statute of the icj raise questions in the Committee; customary international law was meant to be a flexible source of adjudication, in contrast to treaties with their solemn character.10 Hudson held the view that the Committee’s members had a very vague idea of what constituted an international custom.11 The Committee, however, was aware of the issue of non liquet and judicial decisions were more vigorously debated than customary international law.12 Ole Spiermann commented that the discussions within the Committee clearly evidenced ‘a need for international law that went beyond the positive rules then identified with treaty and custom. By implication, the scope of international law could not be said to have been defined by positive rules, or at least not solely by such rules.’13 In the 1920s, national lawyers needed more answers from international law than those provided by norms of positive law. Thus, the PCIJ had to make the law.14 The debates also included the question of whether there was a hierarchy in applying the sources.15 After fifteen meetings, the Committee submitted the PCIJ Statute to the League of Nations, which was adopted (with slight changes) by the League’s Assembly on 13 December 1920. At its inception, Article 38 was not meant to be the embodiment of the doctrine of sources of international law ‘in the contemporary sense of a finite list of abstract forms that determine law-​creation and law-​ascertainment’.16 Yet, from a contemporary perspective, soon after its adoption Article 38 acquired importance and meaning beyond the one anticipated by its drafters. It ‘rapidly became synonymous with the “doctrine of the sources of international law”; a closed list enumerating the abstract normative categories that comprise the body of international law’.17 Article 38 was transferred to the ICJ Statute without much controversy or major modification.18 During the negotiations, it was noted that ‘while Article 38 was not well drafted . . . the Court had operated very well under [it]’ and that therefore, ‘time should not be spent in redrafting it’.19

 See Jean d’Aspremont, Formalism and the Sources of International Law. A  Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011), p. 163. 11  Hudson, A Treatise, p. 120. 12   Advisory Committee of Jurists, Procès-​verbaux, pp. 311–​12 (Mr Loder); pp. 312–​13, 335–​6 (Mr de Lapradelle); pp. 296–​7, 307–​8, 317 (Mr Hagerup). 13   Ole Spiermann, International Legal Argument in the Permanent Court of International Justice. The Rise of the International Judiciary (Cambridge: Cambridge University Press, 2005), p. 61. 14  ibid. 15   See e.g., Advisory Committee of Jurists, Procès-​verbaux, p. 317 (Mr Ricci-​Busatti). 16   Thomas Skouteris, The Notion of Progress in International Law Discourse (The Hague:  T.M.C. Asser Press, 2010), p.  123. See also John Fisher Williams, Aspects of Modern International Law—​An Essay (Oxford: Oxford University Press, 1939), pp. 37–​8. 17  Thomas Skouteris, ‘The Force of a Doctrine: Art. 38 of the PCIJ Statute and the Sources of International Law’, in Fleur Johns, Richard Joyce, and Sundhya Pahuja, eds, Events: The Force of International Law (Abingdon: Routledge, 2011), 69–​80, 71. 18   See Pellet, ‘Article 38’, p. 743.    19  ibid. (quoting Basdevant). 10

malgosia fitzmaurice   183 Although Article 38 has been heralded as bringing certainty to international law by providing a clear and finite list of sources,20 this perception has substantially changed: certainty developed into uncertainty concerning, inter alia, the crucial elements of customary international law, and Article 38 is now far from to be considered as ‘finite’, with the advent of potential new sources of international law.

III.  The Past and the Present 1. Customary International Law The role and state of customary international law has become a topical subject of debate and the views of scholars remain polarized.21 The International Law Commission’s (ILC) current work on the identification of customary international law with Sir Michael Wood as a Special Rapporteur was partly prompted by problems—​‘some real, some imagined’—​surrounding customary international law, but also by the lasting importance of this topic.22 The current debate relating to customary international law mainly focuses on three issues: (a) whether customary international law and its two elements retain their importance in the contemporary world; (b) the quest for meta-​custom; and (c) the role of the ICJ in the formation of customary international law, which coincides to a certain degree with (a) and (b), as the Court’s practice is often analysed through these prisms. Scholars’ views of the importance and the usefulness of customary international law range from those who consider it to be an obsolete source or a source in crisis, to those who herald its bright future and describe its ‘reinvigoration’.23 Critical comments are inspired by   See Skouteris, ‘The Force of a Doctrine’, p. 71.   For some recent publications on the topic, see e.g., Brian D. Lepard, Customary International Law. A New Theory with Practical Applications (Cambridge: Cambridge University Press, 2010); Curtis A. Bradley, ed., Custom’s Future. International Law in a Changing World (Cambridge: Cambridge University Press, 2016); Anthony D’Amato, ‘New Approaches to Customary International Law’, American Journal of International Law 105 (2011): 163–​7; Michael P. Scharf, Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments (Cambridge: Cambridge University Press, 2013); d’Aspremont, Formalism. 22  Omri Sender and Michael Wood, ‘Custom’s Bright Future:  The Continuing Importance of Customary International Law’, in Bradley, ed., Custom’s Future, 360–​70, 366. In 2011, the ILC included the topic of customary international law in its long-​term programme of work; see ILC, Report on the Work of the Sixty-​Third Session (26 April–​3 June and 4 July–​12 August 2011), UN Doc. A/​66/​10, paras 365–​7. 23   The most instructive depiction of contemporary approaches to customary international law can be found in Bradley, ed., Custom’s Future; see in particular, the chapters by Joel P. Trachtman ‘The Growing Obsolescence of Customary International Law’, pp. 172–​204; Andrew T. Guzman and Jerome Hsiang, 20 21

184    history of article 38 of the statute of the icj the practice of international courts and tribunals of making ‘bold’ claims regarding the existence of a customary norm while offering little, if any support for its existence, often in the context of international criminal law.24 Other assessments contend that due to various characteristics, customary international law is no longer relevant as a source of international law: it would be inadequate for modern times or too slow to regulate relations between States.25 At the same time, an opposite view maintains that customary international law is definitely not dying, but enjoying robust health, or even thriving.26 Rules of customary law, it is suggested, can fulfil a useful role of filling the lacunae in treaties and assist in their interpretation.27 Further, the argument goes, customary international law plays a significant role in uncodified fields of international law and, despite views to the contrary, can develop rapidly when it is necessary. Last, but not least, several recent cases evidence that the ICJ relies on customary international law.28 Therefore, and as eloquently stated, ‘the theoretical torment that accompanies custom in the books simply does not impede it in action’.29 The systematic and conscious division of customary international law into two elements has considerably evolved in judicial practice, starting with the Lotus case,30 and culminating with the North Sea Continental Shelf cases, in which the ICJ solidified the two-​element test.31 This approach was further confirmed in subsequent decisions, such as the Libya v Malta case,32 the Nicaragua case,33 the Nuclear Weapons

‘Reinvigorating Customary International Law’, pp. 275–​304; John Tasioulas, ‘Custom, Jus Cogens, and Human Rights’, pp. 95–​117; Larissa Van den Herik, ‘The Decline of Customary International Law as a Source of International Criminal Law’, pp. 230–​52; Brian D. Lepard, ‘Customary International Law as a Dynamic Process’, pp. 62–​94; and Sender and Wood, ‘Custom’s Bright Future’.   See Van den Herik, ‘The Decline of Customary International Law’, p. 239, referring to Prosecutor v Dragoljub Kunarac et al. (Appeals Judgment) ICTY–​96–​23 & IT–​96–​23/​1–​A (12 June 2002). 25   For an overview of the relevant arguments, see Sender and Wood, ‘Custom’s Bright Future’. 26 27  ibid.   ibid., pp. 363–​4. 28   ibid., pp. 364–​5. See e.g., Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections) (Judgment) [2007] ICJ Rep 582, 614–​16, paras 87–​93; Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) [2012] ICJ Rep 99, 122–​45, paras 54–​107. 29   Sender and Wood, ‘Custom’s Bright Future’, p. 365. 30   The Case of the S.S. “Lotus” (France v Turkey) (Judgment) PCIJ Ser. A No. 10 (1927), p. 38. 31   ‘Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that the practice is rendered obligatory by the existence of a rule of law requiring it. . . . The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.’ North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (Judgment) [1969] ICJ Rep 3, 44, para. 77. 32   Continental Shelf (Libyan Arab Jamahirya v Malta) (Judgment) [1985] ICJ Rep 13, 29, para. 47. 33   Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, 97, para. 183, 110, para. 211. 24

malgosia fitzmaurice   185 advisory opinion,34 and the Jurisdictional Immunities case.35 As highlighted by James Crawford,36 the ICJ has established the existence of a norm of customary international law from a multitude of different sources. In the Gulf of Maine case,37 the Court inferred customary international law from practice; in the Nuclear Weapons advisory opinion,38 from resolutions of the UN General Assembly; in the Wall advisory opinion,39 it was deduced from a decision of the Nuremburg Tribunal.40 The application of customary international law by the ICJ is characterized by flexibility,41 as emphasized by the Court’s former President, who stated that the ICJ has always looked for the most expedient evidence in ascertaining customary rules, including analyses of the ILC.42 Some have argued that the strictness of the Court’s approach to the ascertainment of customary international law ‘may depend on whether the state of the law is a primary point of contention between the parties to a dispute’, as evidenced by the North Sea Continental Shelf cases.43 While the two-​element approach to international customary law is well established, there has been a noticeable diversity in the method of the ascertainment of both elements. The 1986 Nicaragua case offers an example: despite the Court’s statement that it was following the classic approach to customary international law as formulated in the North Sea Continental Shelf cases, its identification of the two elements of customary international law was very controversial and far from orthodox.44 Many authors observed that the Court overemphasized the element of opinio juris in detriment to practice and criticized such an approach, claiming that the Court was only making perfunctory and conclusory references to the practice of States.45 This approach was criticized primarily for being a deductive method, as the rules of customary international law seemed to be recognized by the ICJ if   Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 253–​5, paras 65–​73. 35  ICJ, Jurisdictional Immunities of the State, p. 122, para. 55. 36   James Crawford, ‘The Identification and Development of Customary International Law’, Keynote Speech for the Spring Conference of the British Branch of the International Law Association, 23 May 2014, pp. 8–​9. 37   Delimitation of the Marine Boundary in the Gulf of Maine Area (Canada v United States of America) (Judgment) [1984] ICJ Rep 246, 269, para. 111. 38  ICJ, Legality of the Threat or Use of Nuclear Weapons, pp. 254–​5, para. 70. 39   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2006] ICJ Rep 136, 172, para. 89. 40   Crawford, ‘The Identification and Development of Customary International Law’, p. 8. 41   ILC, First Report on Formation and Evidence of Customary International Law by Michael Wood, Special Rapporteur, 17 May 2013, UN Doc. A/​CN.4/​663, p. 13. 42  See Peter Tomka, ‘Custom and the International Court of Justice’, The Law and Practice of International Courts and Tribunals 12 (2013): 195–​216. 43   Crawford, ‘The Identification and Development of Customary International Law’, p. 9. 44  ICJ, Military and Paramilitary Activities, p. 14. 45   Jonathan I. Charney, ‘Customary International Law in the Nicaragua Case. Judgment on Merits’, Hague Yearbook of International Law 18 (1988): 16–​29, 22, 18; Theodor Meron, War Crimes Law Comes of Age (Oxford: Clarendon Press, 1998), p. 157. 34

186    history of article 38 of the statute of the icj they appeared in a widely adopted treaty or in resolutions of the United Nations or regional organizations ‘so long as State practice predicated upon a contrary norm is absent’.46 The 1986 Nicaragua case is frequently considered as an example of the Court’s departure from the inductive to the deductive method of identification of customary rules,47 and this question has ignited very robust scholarly discussions.48 For example, Stefan Talmon maintains that the Court does not use a single methodology but a mixture of ‘induction, deduction and assertion’.49 The Court’s frequent references to a norm of customary international law without in-​depth analysis is another topic of discussion among scholars. For example, the approach of the Court to the identification of customary international law in the Pulp Mills case was criticized by one commentator as so ‘cavalier’ as to justify the view that ‘the Court did not wish its conclusions to be taken seriously’.50 This comment relates to the Court’s conclusion concerning the existence of a customary norm imposing the obligation of conducting environmental impact assessments, the content of which is still ill-​defined even though, according to the Court, the norm has already fully crystallized. This commentator found puzzling that the existence of such a poorly defined norm ‘which has the dubious quality of looking airy and burdensome at the same time’, was not evidenced sufficiently by the Court.51 Relying on the Pulp Mills case, the Court further confirmed the existence of environmental   Charney, ‘Customary International Law in the Nicaragua Case’, p. 22.  Anthea Roberts, ‘Traditional and Modern Approaches to Customary International Law:  A  Reconciliation’, American Journal of International Law 95 (2001):  757–​91, 758. For a discussion on this matter, in particular between Omri Sender and Sir Michael Wood on the one hand, and Stefan Talmon on the other, see Omri Sender and Sir Michael Wood:  ‘The International Court of Justice and Customary International Law: A Reply to Stefan Talmon’, EJIL: Talk! (Blog of the European Journal of International Law), 30 November 2015, ; Stephan Talmon, ‘Determining Customary International Law: The ICJ’s Methodology and the Idyllic World of the ILC’, EJIL: Talk! (Blog of the European Journal of International Law), 3 December 2015, , accessed 21 May 2016. 48   See e.g., Roberts, ‘Traditional and Modern Approaches to Customary International Law’; Robert Kolb, ‘Selected Problems in the Theory of Customary International Law’, Netherlands International Law Review 50 (2003): 119–​50; Christian Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of the New Century:  General Course of International Law, vol. 281, Collected Courses of the Hague Academy of International Law (Leiden:  Brill/​Nijhoff, 1999), 9–​438, 9; Stefan Talmon, ‘Determining Customary International Law:  The ICJ’s Methodology between Induction, Deduction and Assertion’, European Journal of International Law 26 (2015): 417–​43. 49   Talmon, ‘Determining Customary International Law: The ICJ’s Methodology’, p. 441. 50   Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, 83, para. 204. Lorenzo Gradoni, ‘The International Court of Justice and the International Customary Game of Cards’, in Mads Andenas and Eirik Bjorge, eds, A Farewell to Fragmentation. Reassertion and Convergence in International Law (Cambridge:  Cambridge University Press, 2015), 371–​406, 398. 51   Gradoni, ‘The International Court of Justice and the International Customary Game of Cards’, p. 399. 46 47

malgosia fitzmaurice   187 impact assessments under customary international law in the cases concerning Certain Activities Carried out by Nicaragua in the Border Area and Construction of a Road in Costa Rica along San Juan River,52 which suggests that the Court has moved even further from evidencing the existence of a norm of customary international law based on practice and opinio juris and relies instead on its prior findings. By building a pyramid of cases relying on an original decision in which a customary norm was initially ascertained, the Court is alienating itself from sufficiently evidencing the elements characterizing customary international law. Each additional case which relies on the underlying precedent further consolidates the customary status of the norm. The formation of customary international law by the Court has originated in many cases from its own judicial activity, which is very much in the Hartian tradition of customary law, although Hart was famously sceptical about international law in general, with ‘its absence of an international legislature [and] courts with compulsory jurisdiction’.53 Hart expressed the view that international law lacks a single rule of recognition to perform a ‘unifying function’ which would result in a clear identification of binding treaties and valid customary international law norms.54 This lack of a single rule of recognition results in the lack of a system of international law.55 A rule of recognition which defines the existence of a primary obligation cannot be vague. The rule of recognition, according to Hart,56 is court-​ made, thus its existence, application, and identification derives only from judicial activity. This does not sit easily with the inherent vagueness of the formation of customary international law and the fragmented environment of international adjudication. Therefore, there are legitimate doubts as to whether international customary law can fulfil the unifying function of the international legal order.57 On the one hand, the existence of the rule of recognition in general international law does not equate with the existence of a hierarchy of regimes in international law. Due to the fragmentation of the international legal order, there is no such hierarchy at present. On the other hand, the progressive consolidation of general international law, forming a general background regime of international law, is now accepted. As a result, the rule of recognition and secondary rules of general international law are also common to other regimes of international law, insofar as sources of general international law are concerned. However, such a limited rule of recognition does not

  Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica Along San Juan River (Nicaragua v Costa Rica) (Judgment) [2015] General List No. 150 and 152, pp. 44–​6, paras 101–​5. 53   H. L. A. Hart, The Concept of Law, 3rd edn (Oxford: Oxford University Press, 2012), p. 214. This view has often been criticized as obsolete; see e.g., Thomas Franck, ‘Legitimacy in the International System’, American Journal of International Law 82 (1988): 705–​59, 753; Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford: Oxford University Press, 2003), p. 84. 54 55 56  Hart, The Concept of Law, p. 214.   ibid., p. 236.   ibid., p. 110. 57   Gradoni, ‘The International Court of Justice and the International Customary Game of Cards’, pp. 373–​7. 52

188    history of article 38 of the statute of the icj provide for a rule of conflict when norms from a general regime conflict with norms from a special regime.58 Scholars have suggested that the ICJ’s application of customary international law does not indicate any particular conscious and consistent methodological approach:  ‘the Court has no single approach to the formation of customary international law. This conclusion applies both to the evidence invoked by the Court and the actual methods employed in the process of finding of new customary rules.’59 Yet, such an application of a plurality of methodologies could be ‘beneficial’.60 There is no definite solution on meta-​customary law and meta-​meta law, the purpose of which would be to authorize the creation of sources. In relation to meta-​meta law, treaty law and customary international law would constitute two separate branches of law, connected by the structure of meta-​meta law, which regulates the relationship between sources. However, the existence of such meta-​meta law as a positive norm is considered doubtful.61 Article 38 itself is not ‘meta-​meta law’: as aptly stated, ‘[n]‌o one sees Article 38 as meta-​meta law on sources-​creation in international law’.62 The inherent ‘uncertainty about the regime governing the identification of customary international law’ is one of the reasons for the search for meta-​custom.63 Meta-​law on custom (or ‘meta-​custom’) can be defined as the law relating to the formation and identification of custom or, in other words, to ‘norms which regulate the making of “simple”, first-​order norms, the meta-​rules on the making of customary law (i.e., “State practice and opinio juris”)’.64 Although Hart was of the view that international law did not have a rule of recognition, his theory gave rise to the assumption that meta-​custom can be identified in international law because he did not adduce positive arguments to show that it does not contain one. The lack of a rule of recognition does not preclude international law from being just a set of primary rules. Raphael Walden has therefore ascribed to international law secondary rules, which might be considered as the meta-​rules on law creation.65 58   Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–​85, 183. 59  Birgit Schlütter, Developments in Customary International Law. Theory and Practice of the International Court of Justice and the International Ad Hoc Criminal Tribunals for Rwanda and Yugoslavia (The Hague: Brill/​Nijhoff, 2010), p. 168. 60   ibid., p. 172. 61   Jörg Kammerhofer, ‘Hans Kelsen’s Place in International Legal Theory’, in Alexander Orakhelashvili, ed., Research Handbook on the Theory and History of International Law (Cheltenham: Edward Edgar, 2011), 143–​67, 152. 62   Jörg Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (London: Routledge, 2011), p. 208. 63   Christian J. Tams, ‘Meta-​Custom and the Court: A Study in Judicial Law-​Making’, The Law and Practice of International Courts and Tribunals 14 (2015): 51–​79, 52. 64  Jörg Kammerhofer, ‘Uncertainty in the Formal Sources of International Law:  Customary International Law and Some of Its Problems’, European Journal of International Law 15 (2004): 523–​53, 524. 65   Raphael M. Walden, ‘Customary International Law: A Jurisprudential Analysis’, Israel Law Review 13 (1978): 86–​102, 90–​2.

malgosia fitzmaurice   189 At present, there is neither identifiable meta-​law or meta-​custom, nor a general treaty on meta-​custom.66 Nonetheless, the view has been expressed that despite the apparent lack of cohesion and comprehensiveness, the decisions of the PCIJ and of the ICJ ‘have yielded a number of normative propositions that form the core of the regime of meta-​custom’.67 The approach to meta-​customary law by Christian Tams is part and parcel of the above discussion on the role of the ICJ in the ascertainment of customary international law. Tams advances a much more positive view of the role of the ICJ in creating meta-​custom than many other authors cited above. His view is that the ICJ’s activities in the field of conceptualization of meta-​custom may not be altogether straightforward, coherent, and consistent, and are frequently underestimated, taken for granted, or treated with caution,68 but they ‘establish parameters within which the debate takes place’.69 Tams identifies four elements relating to customary international law in which the PCIJ and the ICJ have developed (or attempted to develop) meta-​custom: (1) the two-​element test (relating to the element of practice); (2) generality; (3) consistency, duration, and materials to be consulted; and (4) inferring the rules of custom, that is, the recognition by the ICJ of ‘argumentative shortcuts’. The most important is certainly the crystallization of the two elements of customary international law, as there is no doubt that the early elaboration of Article 38 by the Advisory Committee had failed to reflect the systematic differentiation of the two-​element test.70 Other international courts and tribunals, such as the International Tribunal for the Law of the Sea (ITLOS), the International Criminal Tribunal for Rwanda (ICTR), or the Appellate Body of the World Trade Organization have relied on the ICJ’s findings relating to the ascertainment of the existence of customary norms rather than conducting their own investigation concerning practice and opinio juris.71 In such cases, ‘the pronouncements of the ICJ were taken at face value’.72 That may be so, but the ascertainment of customary international law by the international criminal tribunals (such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the ICTR) only conforms to a certain extent to the 67   Tams, ‘Meta-​Custom’, p. 52.  ibid., p. 54.  ibid., pp.  56–​7. See also Hugh Thirlway, The Sources of International Law (Oxford:  Oxford University Press, 2014), pp. 53–​91. 69 70   Tams, ‘Meta-​Custom’, p. 55.   ibid., pp. 58–​69. 71   See e.g., Responsibilities and obligations of States with respect to activities in the Area (Advisory Opinion) [2011] ITLOS Rep 10, 28, para. 57 (customary character of the rules on treaty interpretation); M/​V Saiga (No. 2) (Saint Vincent and the Grenadines v Guinea) (Admissibility and Merits) [1999] ITLOS Rep 10, paras 133–​4 (customary character of the two conditions of the ‘state of necessity’ defence); Prosecutor v Akayesu (Judgment) ICTR-​96-​4-​T (2 September 1998), para. 495 (customary character of the Genocide Convention); WTO, United States:  Standards for Reformulated and Conventional Gasoline—​Appellate Body Report and Panel Report—​Action by the Dispute Settlement Body (20 May 1996) WT/​DS2/​AB/​R, p. 17 (customary character of Art. 31 (1) of the Vienna Convention on the Law of Treaties). 72   Crawford, ‘The Identification and Development of Customary International Law’, p. 14 66 68

190    history of article 38 of the statute of the icj ICJ’s regime based on a ‘classical’ two-​element approach. There are significant differences, as the tribunals: neither identify nor prove the existence of the two elements of customary international law . . . they merely list the international legal instruments and the case law which serve as an evidence (or ‘source’) of either of these elements. This is a modification which in practice turns the classical two-​element approach into a one-​element one, because the tribunals often refrain from any allocation of the international ‘sources’ to either element of customary international law.73

As a result, those ‘sources’ serve as the ascertainment of both State practice and opinio juris.74 Three main factors can explain such an evolution. First and most importantly, these ‘sources’ may be treated as evidence of both opinio juris and State practice because in international criminal law, the differentiation between these two elements is ‘difficult’ and ‘theoretical’.75 Secondly, there is a certain paucity of practice to support an identification of the evolution of new customary international criminal norms. Thirdly, there are ‘a number of new international legal instruments which permit conclusions about emerging rules of customary international criminal law, which, however, have come into force quite recently’ (e.g. the Rome Statute), and, ‘therefore, existing tribunals such as the ICTY and ICTR consider these new rules to influence the formation of new customary law’.76 The practice of the ICTY offers numerous examples: the judgment in Tadić cited, inter alia, the Barbie case and the Eichmann case in order to establish the customary character of persecution.77 The quest for the customary nature of the crime of enslavement by the ICTY was similar. The Kunarac case also considered international treaty law and the cases of the Second World War, in order to determine the customary status of the offence. The Trial Chamber emphasized in that case evidentiary sources of customary international law had to be analysed in light of the ‘specific character of international humanitarian law’.78 Conclusions are difficult to draw due to many uncertainties and inconsistencies concerning the present status of the formation and ascertainment of customary international law in general. However, the comparison between the past and the present evidences that the modest idea of customary law envisioned by the drafters of Article 38 as nothing more than ‘the law applicable by the ICJ’ has developed into the model of ‘law-ascertainment’.79 All aspects of customary international law are hotly debated. Broadly speaking, on the one hand, there is the ILC’s Special 74  Schlütter, Developments in Customary International Law, pp. 187–​8.   ibid., p. 188. 76  ibid.  ibid. 77   Prosecutor v Tadić (Judgment) ICTY–​IT–​94–​1–​T (7 May 1997), para. 701; see also Prosecutor v Kupreskić et al. (Judgment) ICTY–​IT–​95–​16–​T (14 January 2000), para. 602; Schlütter, Developments in Customary International Law, p. 191. 78   Prosecutor v Dragoljub Kunarac et  al. (Judgment)) ICTY–​IT–​96–​23–​T & IT–​96–​23/​1-​T (22 February 2001), para. 521; Schlütter, Developments in Customary International Law, pp. 191–​2. 79  D’Aspremont, Formalism, p. 149. 73

75

malgosia fitzmaurice   191 Rapporteur, who appears to support the view that angst surrounding customary international law is ill-​founded and that the role of the Court in the ascertainment of customary international law is coherent and consistent.80 At the same time, other scholars (the ‘moderate group’), including Tams, admit that although the Court is not always the most consistent, it has succeeded in setting up certain aspects of customary international law in a manner sufficiently consistent to constitute the meta-​law of custom. On the other hand, there is quite a substantial group of scholars, among them Talmon and Lorenzo Gradoni, who hold a very different view: not only would there be no meta-​law on custom but the Court would have abandoned evidencing practice and opinio juris and assumed the deductive method. The present author is also of the view that the Court very frequently relies on its own case law to prove the existence of a norm of customary international law. Such practice, criticized by scholars, is very useful for international law practitioners who feel reassured that the Court has given its blessing to a norm of customary international law and that its customary status may thereafter be safely pleaded. The multiplicity of international courts and tribunals as ascertainers and appliers of customary international law contribute to the complexity of present-​day custom. Even such an ardent supporter of the meta-​law of custom as Tams admits that law-​making by courts has its limitations and that the other law-​appliers of customary international law, which lack the same authority as the ICJ, may find it difficult to reach an agreement concerning the state of customary law.81 The issue of the marked lack of formality in the ascertainment of customary international law or a ‘dance-​floor’ phenomenon admittedly contributes to the flexibility of custom, but also causes a distinct stumbling block in formulating reliable general parameters for its application.82 It may be too late to return to formalism in the ascertainment of customary international law considering its unrestricted and amorphous development. The extensive case law of courts and tribunals other than the ICJ in the ascertainment of customary international law is of paramount importance. Treating this case law merely as a deviation from the ICJ’s jurisprudence may be incorrect, as it does not reflect the reality of the contemporary law application. International law seems to be facing far-​reaching and irreversible changes in the formation, ascertainment, and application of custom. There may be too many dance steps on the dance floor, but calls for a rigorous adherence to classical formality risks not being answered because of a very diversified and fragmented legal landscape. Moreover, there are also practical difficulties in evidencing the practice of States and opinio juris: when the Committee drafted Article 38, the world order was different and the   Jean d’Aspremont, ‘The Decay of Modern Customary International Law in Spite of Scholarly Heroism’, Amsterdam Law School Legal Studies Research Paper No. 2016–​18, p. 33, , accessed 21 May 2016. 81   Tams, ‘Meta-​Custom’, p. 79. 82   D’Aspremont, ‘Customary International Law as a Dance Floor’. 80

192    history of article 38 of the statute of the icj identification of both elements of customary international law related to a limited number of States; presently, it is a quantitatively and qualitatively different issue.

2. General Principles of Law The debate concerning general principles of law held a prominent place in the Committee’s deliberations.83 Their original status was rather humble: they were envisioned as an auxiliary source of law and presumed to act as a gap-​filler in the absence of conventional or customary norms applicable between the parties.84 Defining these principles was a source of difficulties within the Committee. The majority held the view that general principles of law derive from national principles of law, which, at least to a certain degree, seems to hold at present. There are, however, examples of the application by the ICJ of general principles which are not part of municipal law.85 While numerous publications analyse in depth the intricate and complex legal and moral aspects of these principles,86 their status and content is rather vague,87 and they have been defined in doctrine and applied in practice in a rather loose, imprecise, and inconsistent manner.88 Further complicating their definition is that the line dividing general principles of law and customary international law is often blurred and that these two sources are at times almost impossible to distinguish because a general principle of law may become part of the body of international customary law.89 Moreover, general principles may also be incorporated in a treaty.90 Due to their auxiliary character, the role of general principles of law as a source of general international law has lost some of its significance.91 At the same time, these principles are often taken as examples of the constitutionalization of international law, and there is also a significant increase in the reference to general principles in the decisions of international courts and tribunals, including the ICJ and the Court of Justice of the European Union.92   Giorgio Gaja, ‘General Principles of Law’, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2013), , para. 17. 84   Vladimir D. Degan, Sources of International Law (The Hague: Martinus Nijhoff, 1997), p. 16. 85   See e.g., Corfu Channel Case (United Kingdom v Albania) (Merits) ICJ Rep [1949] 4; Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15. 86   For a list of literature on general principles of law, see Samantha Besson, ‘General Principles in International Law—​Whose Principles?’, in Samantha Besson and Pascal Pichonnaz, eds, Les principes en droit européen—​Principles in European Law (Geneva: Schulthess, 2011), 19–​64, 21. 87   For a similar view, see Maria Panezi, ‘Sources of Law in Transition. Re-​Visiting General Principles of International Law’, Ancilla Juris (2007): 66–​79, 66. 88  Degan, Sources, p. 17. 89   Rein Müllerson, ‘On the Nature and Scope of Customary International Law’, Austrian Review of International & European Law 2 (1997): 341–​60, 370; Gaja, ‘General Principles’, para. 24. 90   Gaja, ‘General Principles’, para. 18. 91   Malcolm Shaw, International Law, 7th edn (Cambridge: Cambridge University Press, 2014), p. 70. 92   Besson, ‘General Principles’, pp. 20, 23. 83

malgosia fitzmaurice   193 General principles of law recognized by States within their domestic context, as postulated by the Committee, represent the past. The present is characterized by the emergence of general principles of international law sensu stricto, which derive from the international legal order and are fundamental to it, such as sovereign equality.93 These principles are often sectoral, as illustrated by the precautionary principle in international environmental law, but some of them also belong to general international law, such as the prohibition of transboundary harm to the areas beyond States’ jurisdiction or control.94 Such a development was undoubtedly unforeseen by the members of the Committee. One of the most interesting features of general principles as formulated in Article 38 (1) (c) is the extent to which they are independent from the judicial function and therefore not subjected to the law-​making function of the international judge.95 The application of these principles is not without problems; the meaning of the expression ‘recognized by civilized nations’, for example, remains murky. This expression coined by the Committee alludes to the recognition of these principles within States’ law and should not be read to imply a cultural determination.96 The recourse by the ICJ to general principles of law which are not derived from municipal law results to a certain extent from the narrow definition of customary international law in Article 38. Certain rules of international law which are not based on treaties do not conform to the definition of customary international law, ‘[h]‌ence the reference to principles or general principles’.97 Similarly to customary international law, ‘the assertion by the ICJ of a general principle of law, whether or not it finds a parallel in municipal systems, is only rarely accompanied by an adequate demonstration of its existence in international law’.98 Samantha Besson offered a very apt description of the ICJ’s approach to general principles of law by observing that at times, the Court ‘considers general principles of law as an embryonic and lighter form of customary law’, which leads to the Court being accused of ‘using general principles rhetorically to erode the conditions of customary international law’.99 The place of general principles of law among the other main sources of international law is the object of recurrent debates, which are reminiscent of the discussions held by the Committee, as their role is still unclear and as their relationship with customary international law does not seem to have been fully explored. Their definition as an ‘independent

 ibid., p. 33.   See Emmanuelle Jouannet, ‘L’ambivalence des principes généraux face au caractère étrange et complexe de l’ordre juridique international’, in Rosario Huesa Vinaixa and Karel Wellens, eds, L’influence des sources sur l’unité et la fragmentation du droit international (Bruxelles:  Bruylant, 2006), 115–​54. 95   Besson, ‘General Principles’, p. 36. 96   See Hervé Ascensio, ‘Principes généraux du droit’, in Paul Lagarde, Dominique Carreau, and Hervé Synvet, eds, Répertoire de droit international (Paris: Dalloz, 2004), 1. 97 98   Gaja, ‘General Principles’, para. 18.   ibid., para. 20. 99   Besson, ‘General Principles’, p. 41. 93

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194    history of article 38 of the statute of the icj though secondary source’ probably reflects legal reality.100 Such a definition is supported by the argument that when customary international law and treaties conflict with general principles of law, the former prevail.101 The ancillary role of general principles with respect to customary international law and treaties in the event of a lacuna further confirms their secondary character.

IV.  The Present Without the Past This section discusses whether the acts of international organizations, the unilateral acts of States, and ‘soft law’ could be considered ‘new’ sources of international law outside of Article 38.

1. Acts of International Organizations The initial seminal research on this topic was undertaken by Michel Virally, who noted the lack of a consistent categorization of such acts.102 Virally analysed the powers of the United Nations and other organizations, such as the International Civil Aviation Organization. He examined the internal and external powers of international organizations to adopt unilateral acts and found that the powers of an international organization to adopt acts directed to States was the most complex legal issue. Some of these legal questions are still debated today, as illustrated by the challenge of the legal character of decisions of the Security Council adopted on the basis of Articles 24 and 25 of the UN Charter.103 In the Kosovo advisory opinion, the ICJ affirmed its right to interpret the decisions of the Security Council.104 While the vexing question of the normative value of the decisions of the Security Council based on 100  Restatement (Third) of the Foreign Relations Law of the United States (1987), Section 102, Reporters’ Notes (7). 101   Panezi, ‘Sources of Law in Transition’, p. 71. 102   See e.g., Michel Virally, ‘Unilateral Acts of International Organizations’, in Mohammed Bedjaoui, ed., International Law: Achievements and Prospects (The Hague: Martinus Nijhoff, 1991), 241–​63. 103   Legal Consequences for States of the Continued Presence of South Africa in Namibia (Southwest Africa) Notwithstanding Security Council Resolution 276 (Advisory Opinion) [1971] ICJ Rep 16, 53, para. 115; see also Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter) (Advisory Opinion) [1971] ICJ Rep 151. Charter of the United Nations (San Francisco, 26 June 1945, 1 UNTS 16). 104   Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403, 422 (para. 46).

malgosia fitzmaurice   195 Article 25 of the UN Charter in relation to other sources of international law exceeds the framework of this chapter, it must be noted that the fight against terrorism resulted in a controversial form of a general law-​making by the Security Council.105 The legal character of General Assembly resolutions is also frequently debated.106 Related to acts of international organizations are the decisions of the organs set up under Multilateral Environmental Agreements (MEAs), which do not enjoy separate international legal personality but are nonetheless the highest organs established by MEAs. Their decisions, which are directed to State parties, make general obligations more precise, and even fill gaps in the agreements.107 This new phenomenon was called ‘autonomous institutional arrangements’.108 The legal status of the decisions of the Conferences of the Parties is unclear. From a strictly legal point of view they are not binding. However, they are sometimes referred to as ‘de facto law-​making’ and States endeavour to implement them.109 Therefore, such practice bypasses the classical consent of States, which, having decided to conclude MEAs, also agree to some future unspecified obligations which arise not from the treaty but from decisions of the treaty-​based organs. This is just one example of how acts of international organizations (or other treaty-​based entities) have evolved over the past twenty-​five years, since Virally’s seminal publication.

2. Unilateral Acts of States The Nuclear Test cases have resulted in a fierce discussion regarding unilateral acts of States.110 Some scholars have argued that unilateral declarations are not a new source of law and that under normal circumstances, these declarations do not

  See e.g., Pellet, ‘Article 38’, pp. 769–​70.   The General Assembly has the power to make binding decisions on the ‘proper law’ of the organization, such as the budget. However, the statement of the Court in the Namibia advisory opinion that ‘in specific cases within the framework of its competence’, the General Assembly may adopt ‘resolutions which make determinations or have operative design’ is also relevant. ICJ, Namibia Advisory Opinion, p. 50 (para. 105). 107  On this phenomenon, see Daniel Costelloe and Malgosia Fitzmaurice, ‘Lawmaking by Treaty: Conclusion of Treaties and Evolution of Treaty Regimes in Practice’, in Catherine Brölmann and Yannick Radi, eds, Research Handbook on the Theory and Practice of International Lawmaking (Cheltenham: Edward Elgar, 2016), 111–​32. 108   Robin R. Churchill and Geir Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-​Noticed Phenomenon in International Law’, American Journal of International Law 94 (2000): 623–​59. 109  Jutta Brunnée, ‘COPing with Consent:  Law-​ Making Under Multilateral Environmental Agreement’, Leiden Journal of International Law 15 (2002): 1–​52. 110   Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253; Nuclear Tests (Australia v New Zealand) (Judgment) [1974] ICJ Rep 457. 105

106

196    history of article 38 of the statute of the icj generate obligations for States.111 There are several possible classifications of unilateral acts, which is one of the most daunting tasks, given their various natures and purposes. For example, Virally has classified unilateral acts into acts which are part of the treaty-​making process, acts which contribute to the formation of custom, and acts which have an independent significance in international law.112 Víctor Rodríguez Cedeño, a Special Rapporteur of the ILC during its work on unilateral acts, classified unilateral acts according to their legal effects and identified two main categories: the acts by which a State reaffirms a right and the acts by which a State undertakes an obligation.113 However, as Eva Kassoti observed, such a classification has the drawback of a possible overlap between the two categories: the Special Rapporteur restricted his examination to ‘classical’ unilateral acts, but if the analysis covered a wider spectrum of unilateral acts, some of them may fall into both categories.114 Although Kassoti argues that a classification based on the circumstances surrounding the unilateral act is the most reliable, the present author is of the view that there is no classification or test which would with absolute certainty define the legal character of a unilateral act. Kassoti also identified other features of unilateral acts which distinguish them from other sources of international law: their autonomy and manifest intention, for example, would set them apart from political acts. The importance of the intention to make a binding declaration on which others may rely was also noted by Sir Gerald Fitzmaurice.115 The difficulties of identification and classification of unilateral acts were highlighted in the context of the ILC’s 2006 Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations,116 the major weakness of which was arguably the absence of practical guidance concerning the juridical character of a unilateral act which ‘leaves the legal framework pertaining to unilateral acts disappointingly opaque’.117 Because of such a great number of unresolved legal issues, unilateral acts may constitute a new source of obligations in international law only in very rare circumstances. International judicial bodies appear to be cautious in relying on unilateral 111   A. P. Rubin, ‘The International Legal Effects of Unilateral Declarations’, American Journal of International Law 71 (1977): 1–​30, 28–​9; Thirlway, The Sources, p. 51. 112  Michel Virally, ‘The Sources of International Law’, in Max Sørensen, ed., Manual of Public International Law (London: Macmillan, 1968), 116–​74, 155. 113   ILC, Fourth Report on Unilateral Acts of States, by Mr Víctor Rodríguez Cedeño, Special Rapporteur, 30 May 2001, UN Doc. A/​CN.4/​519, para. 98. 114  Eva Kassoti, The Juridical Nature of Unilateral Acts of States in International Law (The Hague: Martinus Nijhoff, 2015), p. 43. 115   Gerald G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–​4: Treaty Interpretation and Other Treaty Points’, British Yearbook of International Law 33 (1957): 203–​93, 230. 116   ILC, ‘Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations’, in Report on the Work of the Fifty-​Eighth Session (1 May–​9 June and 3 July–​11 August 2006), UN Doc. A/​61/​10, paras 160–​77. 117  Kassoti, The Juridical Nature of Unilateral Acts, p. 43. It may also be added that in the Nuclear Test cases, the Court emphasized the role of good faith (para. 46).

malgosia fitzmaurice   197 acts.118 Their unique character means that they cannot be put on a par with the main sources of international law.

3. Soft Law Soft law is even more problematic as a ‘new’ source of international law, and its character remains inconclusive. Sir Robert Jennings noted a great difficulty in distinguishing between legal and non-​legal norms.119 The quest for a clear classification has not changed much, as the evolving informality of international law and exponential growth of various soft law declarations blurs the distinction between the legal and non-​legal, which may be considered dangerous from the point of view of the rule of law.120 Be that as it may, whether it merits approval or disapproval, soft law exists. Besson rightly explains that soft law is not a source of international law: ‘it is a kind of intermediary international legal outcome whose legality might be questioned and hence whose normativity qua law is almost inexistent’.121 A similar observation may be made concerning the non-​binding resolutions of the General Assembly, which may be an intermediary stage for the formation of customary norms by providing evidence of practice and opinio juris.122 Certain provisions of soft law instruments, such as Principle 21 of the 1972 Stockholm Declaration,123 are legally binding and have a normative content due to their evolution into norms of customary international law, not because they are part of a soft law instrument. Soft law instruments, however, may be an important auxiliary mechanism for treaty interpretation, application, and development. Soft law may modify the meaning, interpretation, or content of existing treaty law.124 Soft law is not a new source of international law per se. However, it participates in international law-​making and some authors ascribe to it certain (possible) legal

118   See e.g., WTO, United States: Sections 301–​310 of the Trade Act of 1974—​Panel Report (22 December 1999) WT/​DS152/​R, pp. 363–​5; Frontier Dispute (Burkina Faso v Mali) (Judgment) [1984] ICJ Rep 554. 119  Robert Y. Jennings, ‘What is International Law and How Do We Tell It When We See It?’, Schweizeriches Jahrbuch für Internationales Recht 37 (1981): 59–​88. 120  Prosper Weil, ‘Towards Relative Normativity in International Law’, American Journal of International Law 77 (1983):  413–​42; Jan Klabbers, ‘The Redundancy of Soft Law’, Nordic Journal of International Law 65 (1996): 167–​82. See also for a more nuanced view, Jean d’Aspremont, ‘Softness in International Law: A Self-​Serving Quest for New Legal Materials’, European Journal of International Law 19 (2008): 1075–​93. 121 122   Besson, ‘Theorizing the Sources’, p. 171.   ibid., p. 170. 123   Stockholm Declaration on the Human Environment, in Report of the United Nations Conference on the Human Environment, UN Doc. A/​CONF.48/​14, at 2 and Corr.1 (1972). 124  Fabián Augusto Cárdenas Castañeda, ‘A Call for Rethinking the Sources of International Law:  “Soft Law” and the Other Side of the Coin’, Anuario mexicano de derecho international 13 (2013): 355–​403, 392–​3.

198    history of article 38 of the statute of the icj effects. For example, Virally was of the view that soft law instruments may have some restricted legal effects connected with estoppel.125

V.  Concluding Remarks and Nostalgia Article 38 of the ICJ Statute has evolved into a model for law-ascertainment and formation from very limited origins: it had ‘never been more than a provision that modestly aims to define the law applicable by the ICJ’.126 New contenders to be listed as sources of international law question its comprehensiveness. There is a certain degree of nostalgia attached to Article 38 as a relic of the past. A number of scholars argue that world developments such as the end of colonialism and the emergence of new actors on the world stage had an impact on the currency of Article 38,127 although the nature of such an impact is not certain.128 Article 38 was neither meant to fulfil the grand role of a meta-​law, nor to serve as a definite statement of the formal sources of international law. Its role has been, and is, more modest, but immensely important. As it was persuasively stated, ‘[e]‌ven if Article 38 is merely lex arbitri . . . it is the lex arbitri of the Court’.129 Although it is not, as it was already established, meta-​meta-​law on sources, the Court uses the enumeration of sources in this provision.130 Article 38 neither is nor was intended by the Advisory Committee of Jurists to be the authority on sources. However, as aptly described, Article 38 is more than just a ‘convenient catalogue’.131 The incorporation of the ICJ Statute into the United Nations Charter has enhanced its importance and consolidated its position. Article 38 seems to be a focal point endowed with some ‘elementary authority’ ‘through which the identification of sources proceeds in international law’.132 While Article 38 was meant to bring determinacy to the system of international law,133 its role is currently challenged and disputed due to the robust, but also unpredictable and divergent, evolution of the formation of international law. 125   Michel Virally, ‘La distinction entre textes internationaux ayant une portée juridique dans les relations mutuelles entre leurs auteurs et les textes qui en sont dépourvus’, Annuaire de l’Institut de Droit International 60 (1983): 328–​57, 356. 126 127  D’Aspremont, Formalism, p. 149.  ibid. 128  Kassoti, The Juridical Nature of Unilateral Acts, p. 20. 129   Gleider I. Hernández, The International Court of Justice and the Judicial Function (Oxford: Oxford University Press, 2014), p.  11, n.  4. This author discusses the arguments on Article 38 as lex arbitri developed by d’Aspremont in Formalism, and by Kammerhofer in Uncertainty in International Law, respectively pp. 71, 219. 130 131  Hernández, The International Court of Justice and the Judicial Function, p. 30.  ibid. 132 133  ibid.     ibid., p. 31.

malgosia fitzmaurice   199

Research Questions • What is the relevance and importance of the North Sea Continental Shelf cases in the ascertainment of customary international law understood as a ‘dance floor’, with many permissible steps? • Is Article 38 of the ICJ Statute still relevant, or does it retain only a nostalgic or totemic value?

Selected Bibliography Aspremont, Jean d’, Formalism and the Sources of International Law. A  Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). Besson, Samantha, ‘General Principles in International Law—​ Whose Principles?’, in Samantha Besson and Pascal Pichonnaz, eds, Les principes en droit européen—​Principles in European Law (Geneva: Schulthess, 2011), 19–​64. Bradley, Curtis A., ed., Custom’s Future: International Law in a Changing World (Cambridge: Cambridge University Press, 2016). Costelloe, Daniel, and Malgosia Fitzmaurice, ‘Lawmaking by Treaty: Conclusion of Treaties and Evolution of Treaty Regimes in Practice’, in Catherine Brölmann and Yannick Radi, eds, Research Handbook on the Theory and Practice of International Lawmaking (Cheltenham: Edward Elgar, 2016), 111–​32. Schlütter, Birgit, Developments in Customary International Law. Theory and Practice of the International Court of Justice and the International Ad Hoc Criminal Tribunals for Rwanda and Yugoslavia (The Hague: Brill/​Nijhoff, 2010). Spiermann, Ole, International Legal Argument in the Permanent Court of International Justice:  The Rise of the International Judiciary (Cambridge:  Cambridge University Press, 2005). Talmon, Stefan, ‘Determining Customary International Law:  The ICJ’s Methodology between Induction, Deduction and Assertion’, European Journal of International Law 26 (2015): 417–​43.

Section  V

SOURCES IN THE ANTI-​F ORMALIST TRADITION

Chapter 9

SOURCES IN THE ANTI-​F ORMALIST TRADITION A PRELUDE TO INSTITUTIONAL DISCOURSES IN INTERNATIONAL LAW

Mónica García-​Salmones Rovira

I. Introduction The most important feature of the anti-​formalist traditions propounded by Myres S. McDougal (1906–​1998), founder of the New Haven School, and by Carl Schmitt (1888–​1985) and his school is that they involved serious examination of the relationship between international law and politics.1 Moreover, law and lawyers retained in them central attention and were not merely dwelt with as apt companions to politics.2   On Carl Schmitt’s school, before and after World War II, see Volker Neumann, Carl Schmitt als Jurist (Tübingen: Mohr Siebeck, 2015), pp. 78, 498. 2   Famously so in the work by Morgenthau, see Hans J. Morgenthau, ‘Positivism, Functionalism, and International Law’, American Journal of International Law 34 (1940): 260–​84. 1

204    sources in the anti-formalist tradition Thus these anti-​formalist traditions constitute legal traditions. Both traditions were informed by a keen awareness of the earthquake caused in the international legal order by the collapse of the European empires after the 1930s. But within their particular history and geographical roots, in the United States (US) and Germany respectively, they responded to this momentum by offering different political proposals for a new international legal order. Nonetheless, they shared a degree of ambiguity in the articulation of their political vision. After the 1940s McDougal and his associates emerged in the US as a clear intellectual force, at once nationalist and internationalist.3 This duality caused them to fail to convince either their domestic or their international audiences, to whom it always seemed that they cared for the interests of the other. Arguably, their dilemma stemmed from precocious political awareness of living in a new world, in social, economic, and political terms, for which the language of State-​centred international law was outdated—​and they wished to shape the destiny of that world.4 Schmitt’s very original thinking also followed the path of internationalism. But while he employed a strong legal-​historical method, he developed his internationalism intuitively in response to a moral enemy—​the liberal world order of the League of Nations that emerged after 1919.5 Probably due to this strong moral commitment, his ground-​breaking scientific work both in jurisprudence and history usually appeared a step behind the normative project. Neither the Nazis nor international public opinion were persuaded by his proposals. In fact Schmitt had also grasped the political importance of the structural changes taking place in the world and viewed this process as an event to develop an alternative international law. The particular history of both traditions also soon brought them to the realization of the decay of the positivist concept of law defined solely as the activity of the legislator. For the New Haven School, disillusionment with the law as posited law was the blood that ran through their veins: they had their roots in the school of legal realism.6 The novel element of the legal realism in their work was sociology. This was presented, in terms of a blend of individualism and community expectations, as the manner by which law was made. Their politics of government bore similarity to Jeremy Bentham’s idea that judges should not be allowed to operate freely but

3   For the term ‘associates’, see e.g., Myres S. McDougal and Associates, Studies in World Public Order (New Haven: New Haven Press, 1987). 4   McDougal and Harold D. Lasswell opined that spokesmen of international law ought to ‘drop the assumption that it is a matter of indifference what system of public order achieves universality’. Myres S. McDougal and Harold D. Lasswell, ‘The Identification and Appraisal of Diverse Systems of Public Order’, American Journal of International Law 53 (1959): 1–​29, 29. 5   See Carl Schmitt, Die Kernfrage des Völkerbundes (Berlin: Ferd. Dümmlers Verlagsbuchhandlung, 1926); on the importance of the concept of an enemy for the political perspective, see Carl Schmitt, Der Begriff des Politischen, Text von 1932 mit einem Vorwort und drei Corollarien (Berlin: Duncker & Humblot, 1963). 6   Myres S. McDougal, ‘The Law School of the Future: From Legal Realism to Policy Science in the World Community’, Yale Law Journal 56 (1947): 1345–​55.

mónica garcía-salmones rovira   205 should instead adapt to expectations.7 However, they gave this position a twist by favouring the use of forms of authority and control on a global scale that sought to respond to and influence the process of decentralized bureaucratization of the world. Schmitt regarded contemporary law as only form, a minimum, on the basis that all of its other material qualities, such as rationality and justice, had already been relativized during the nineteenth-​century period of positivism.8 He described this as a historical process of disintegration that had taken place together with that of the natural law system and had resulted in a split in the political world between legality and legitimacy—​or in other words, between law and normativity.9 He set himself the ambitious goal of substituting that type of positivist thinking for one that comprehended the reality of actual norms and institutions. Rather than method per se, it is their broader political aspirations for changing and influencing new understandings of (global) order that characterize these two schools. In that sense, both the aims of formalism and its critique as deformalization seem to get out of focus in attempting to grasp the tenets about law-​making in the New Haven and Schmitt’s schools.10 Anti-​formalist, with its revolutionary connotations, is perhaps a good term to describe them, but by no means the only one.11 As is apparent from every perspective—​conceptually, as politics and as international law; and politically, either from the national or the international viewpoint—​ these two anti-​formalist traditions had a project of their own to overrule existing law and existing politics. In both cases their aspirations were couched in terms of order. For McDougal and his associates order was fluid and constantly changing. Different orders entailed different conceptions of law and legal protection of power and values, and their aim was to speak an authoritative language that would influence the values of these orders at any level under the overarching goal of human dignity.12 7  Jeremy Bentham, Theory of Legislation, trans. from the French from Etienne Dumont by R. Hildreth (Boston: Week Jordan & Co., 1840), pp. 179–​88. On the notion of expectations: ʻThe legislator is not master of the dispositions of the human heart; he is only their interpreter and their minister. The goodness of the laws depends upon their conformity to general expectation. The legislator ought to be well acquainted with the progress of this expectation, in order to act in concert with it. This should be the end’, p. 179 (emphasis Bentham). 8   Carl Schmitt, Verfassungslehre, 9th edn (Berlin: Duncker & Humblot, 2003), pp. 156–​7. 9   See Carl Schmitt, ‘Legality and Legitimacy’, in Schmitt, ed., Positionen und Begriffe im Kampf mit Weimar—​Genf—​Versailles 1923–​1939, 4th edn (Berlin: Duncker & Humblot, 1988), 263–​351. 10   On formalism, see the classic Frederick Schauer, ‘Formalism’, Yale Law Journal 97 (1988): 509–​48 and his c­ hapter 18 in this volume; on formalism and deformalization, see Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011), and his ­chapter 17 in this volume. 11   See Martti Koskenniemi’s analysis of anti-​formalism: ‘Antiformalism is always a call for transformation to overrule existing law either because it does not really exist at all, or if it does, because it should not.’ Martti Koskenniemi, ‘What is International Law For?’, in Malcolm D. Evans, ed., International Law, 2nd edn (Oxford: Oxford University Press, 2006), 57–​82, 68. 12   ‘Besides the aspiration to remain alive, and to keep family and nation alive, there are legitimate aspirations to remain in a potent power position for all values.’ McDougal and Lasswell, ‘The Identification and Appraisal of Diverse Systems of Public Order’, p. 29.

206    sources in the anti-formalist tradition Schmitt was emphatic from early on that ‘today does not rule in any way that general democracy of humanity’. In contrast, in historical and normative terms, he regarded democracy as a concept connected to ‘a specific territory’.13 Thus, the universalistic order of McDougal and his associates and the concrete order of Schmitt were in opposition, and this constitutes the main point of disparity between these two anti-​ formalist traditions. The New Haven School’s history has been divided into two phases. The first phase, which is the subject of this chapter, was one of ‘archaic language’. This originated with McDougal and Harold D. Lasswell and comprised ‘a curious mixture of American legal realism and European psycho-​social psychologism’. In the second phase, which is still active, Richard A. Falk and W. Michael Reisman, together with others in the US and Rosalyn Higgins in the United Kingdom, attempted to channel their ideas into a mainstream discourse, succeeding to the extent that some twenty years ago the New Haven School was considered ‘the second school of international jurisprudence in the US’.14 Schmitt’s scholarly activity spanned over seventy years and in the 1930s he began to engage more openly with international legal theory. But before that the politicization of justice that he ascertained in the activity of the Permanent Court of International Justice (PCIJ) as ‘putting law (Recht) in danger in the name of law’, made meaningless any serious theoretical development of the doctrine of international legal sources on his part. The problem was not only that the practice of the League of Nations involved it showing a double face—​a mildly bureaucratic one for the Great Powers and a fiercely legalistic one for the rest (in short, it was not a league, hence no concrete order)—​but that a formalized process or processes which took a judicial form (justizförmig) could not resolve burning political conflicts between States.15 Notwithstanding this fact, the notion of source of law is important in all phases of his work. However, for him this meant domestic legal sources, or those drawn from the ius publicum Europaeum, as distinct from the doctrine of formal legal sources contained in Article 38 of the Statute of the PCIJ.16 Moreover, his entire career as a public lawyer produced a wealth  Carl Schmitt, Die geistesgeschichtliche Lage des heutigen Parlamentarismus, 8th edn (Berlin: Duncker & Humblot, 1996), p. 16. 14   The previous paragraph follows Gerry J. Simpson, ‘Imagined Consent: Liberalism in International Legal Theory’, Australian Yearbook of International Law 15 (1994): 103–​28, 115–​16. Simpson also states that the New Haven approach is regarded as ‘the most significant antithesis to classical liberalism’. Probably the best word to describe it is ‘neoliberal’. 15   Carl Schmitt, ‘Das Doppelgesicht des Genfer Völkerbundes’ (1926), in Schmitt, ed., Positionen und Begriffe im Kampf mit Weimar—​Genf—​Versailles 1923–​1939 (Berlin: Duncker & Humblot, 1988), 43–​4, 44; for a detailed study as to whether the ‘institution in Geneva’ was or was not a league, see Schmitt, Die Kernfrage des Völkerbundes. To put this idea differently, the original ambition of determining the sources of law by Art. 38 of the PCIJ Statute met Schmitt’s expectations neither about law (Recht) nor about sources of law. Fitzmaurice refers to that ambition: ‘Article 38 at its inception was meant to bring determinacy to the system of international law’; see ­chapter 8 by Malgosia Fitzmaurice in this volume. 16   Statute of the Permanent Court of International Justice (Geneva, 13 December 1920, League of Nations Treaty Series, vol. 6, pp. 380–​413). 13

mónica garcía-salmones rovira   207 of theories and principles, such as nomos, that he almost inevitably later applied directly or transferred to the international sphere.17 The reason for this appears to be his paradoxical manner of thinking in terms of forms, which in fact represents a type of formalist thinking of a pre-​positivist period. In respect of democracy and territory, Schmitt asserted that if the specific characteristics of the different territories were ignored, the worst lack of form (Formlosigkeit) was inflicted.18 Here Schmitt might be hinting at a deformalization of the concept of democracy. It is due to their lasting influence and shared realist pedigree and, in particular, to their rejection of the twentieth-​century naiveté in the formalism of sources that the New Haven and Schmitt’s School have been chosen in this chapter to represent the ‘Anti-​formalist Tradition’. Certainly, a preliminary definition of sources of law as produced by both schools connects sources with politics, international organizations, and institutions. But instead of dwelling with the fact of their common features, which are no news in contemporary scholarship,19 this contribution aims to highlight the differences between these two schools in their very understanding of the concept of sources of law. Also, the chapter unearths historical and geographical nuances in the development of their conception of the notion of sources. Because Schmitt’s theory can be viewed as a critique of several of the New Haven School’s principles, it seems more logical to start with the New Haven School, even though it came after Schmitt.

II.  The New Haven School Apparently, it was Richard Falk who coined the term ‘New Haven School’, in an early seminal study.20 McDougal and his associates proposed a method to promote 17   The term ‘nomos’ was used as early as in Verfassungslehre (1928) and later in his most emblematic work on international law, Der Nomos der Erde (1950); for an in-​depth study of Schmitt’s anti-​ formalism and his tendency to spill over into the international arena, see Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870‒1960 (Cambridge: Cambridge University Press, 2001), generally ch. 6. 18  Schmitt, Die geistesgeschichtliche Lage des heutigen Parlamentarismus, p. 17; on ‘the form as the essence of law’, see Carl Schmitt, Glossarium, Aufzeichnungen der Jahre 1947–​1951 (Berlin: Duncker & Humblot, 1991), p. 235. 19  Koskenniemi, The Gentle Civilizer of Nations, ch. 6.  See also Samuel Moyn, problematizing Koskenniemi’s standpoint that ‘ “[a]‌ fter the Second World War, American international lawyers largely gave up the ‘utopian’ hopes of their inter-​war predecessors” ’ with regard to later American international lawyers, such as Louis Henkin, however, essentially accepting Koskenniemi’s approach to Myres S. McDougal. See Samuel Moyn, ‘The International Law that is America: Reflections on the Last Chapter of The Gentle Civilizer of Nations’, Temple International and Comparative Law Journal (2013): 399–​415, 406. 20   Richard A. Falk, The Status of Law in International Society (Princeton: Princeton University Press, 2015 (1970)), pp. 348–​9; Myres S. McDougal, ‘Introduction to the Reissue’, in McDougal and Associates,

208    sources in the anti-formalist tradition progress towards a public order that would embody and protect a series of postulated values. As mentioned above, the overarching goal that they presented was ‘human dignity’, which in their texts meant ‘social process in which values are widely and not narrowly shared, and in which private choice, rather than coercion, is emphasized as the predominant modality of power’.21 As this definition suggests, ‘freedom of choice’ was from the beginning one of the key concepts structuring the New Haven School’s thought.22 For McDougal and his associates, global order enabled any other order, including that of the State, to secure its interest.23 This doctrinal point both gave their theory a peculiar Kelsenian shape and helped soften their strong, nation-​centred standpoint.24 Further, ‘public order’ had the specific meaning of ‘process’.25 The foundational role played by various processes of effective power and the importance that McDougal and his associates attributed to authority being rooted in community expectations were subsequently specified. The fact that the community recognized the authority of reasoned decisions—​that is to say, decisions made on the basis of due process and justified by reference to policy criteria—​allowed for the establishment of public order at a domestic level and of a certain minimum level of public order at a global level.26 In order to sharpen and deepen their understanding of ‘law

eds, Studies in World Public Order, ix–​xxi, ix; see also Gidon Gottlieb, ‘The Conceptual World of the Yale School of International Law’, World Politics 21 (1968): 108–​32. 21   McDougal and Lasswell, ‘The Identification and Appraisal of Diverse Systems of Public Order’, p. 17. In 1981 Reisman traced the process method of the school to Lasswell, ‘one of the keenest observers of the social process in this century’; W. Michael Reisman, ‘International Law Making a Process of Communication’, American Society of International Law Proceedings 75 (1981): 101–​20, 105. 22   For the application of this principle to international agreements, see Myres S. McDougal, Harold D. Lasswell, and James C. Miller, The Interpretation of International Agreements and World Public Order. Principles of Content and Procedure, 2nd edn (New Haven: New Haven Press, 1994), p. 41. Their understanding of community: ‘A “community” is a group of people, organized in varying degree on a geographic basis and affected by interdependences or interdetermination in the social processes by which they seek values.’ Myres S. McDougal, ‘Jurisprudence for a Free Society’, Georgia Law Review 1 (1966): 1–​19, 4. 23   See Myres S. McDougal, ‘The Law School of the Future’. 24   Thus, while stating that ‘[i]‌t is a commonplace in a world threatened by new war and atomic destruction that all peoples everywhere are today interdependent for securing all their basic demands, that mankind today lives in what is in fact a world community’, McDougal and Leighton continued by saying that ‘[t]he most decisive value process in the world community is the world power process in which the nation-​state is still the predominant participant’. Myres S. McDougal and Gertrude C. K. Leighton, ‘The Rights of Man in the World Community: Constitutional Illusions versus Rational Action’, Law and Contemporary Problems 14 (1949):  490–​536, 493; Hans Kelsen, Introduction to the Problems of Legal Theory. A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law by B.L. Paulson and S.L. Paulson (Oxford: Clarendon Press, 1997). 25   ‘By “world public order” we mean those features of the world social process, including both goal and values and implementing institutions, which are protected by law.’ McDougal, ‘Introduction to the Reissue’, p. x. 26   ibid., pp. x–​xi.

mónica garcía-salmones rovira   209 as a great creative instrument of social policy’, McDougal and his associates thought of expanding the scope of interest in the process of formation of the decision, from the strict ‘policy function of application’ of the authoritative decisions to a range of policy procedures, ‘various community functions in formulating and applying authoritative prescription: intelligence, recommending, prescribing, invoking, applying, appraising and terminating’.27 This scientific depersonalization of the decision, they contended, would enable them to overcome the confusion and ambiguity of traditional legal theory. Thus, the scientific task that the New Haven School set itself was to attempt to capture through the lens of a determined set of values that it cherished (power, enlightenment, respect, wealth, well-​being, skill, affection, rectitude) both the complex social and power processes building world order(s) and the factors that influenced decisions within these processes.28 Hence, their interest in understanding past, present, and future interactions between international and national law led them to propose a shift from observing rules and their mutual hierarchies to focusing on processes and the functions operating within them, including prescribing or making law at different community levels.29 This short introduction to the postulates of the New Haven School and their substitution of formal legal sources by processes offers clues to several important historical features of the political world in which McDougal and his associates lived. The dark tone detectable in their texts was by no means peculiar to the school,30 but characteristic of a period in which American writings demonstrated consciousness of sharing the world with Soviet communism. The urgency with which the New Haven School sought to prove the superiority of the set of values promoted by US policy centres belongs within this historical context. Moreover, much of McDougal’s intellectual output was situated between the two historical dangers posed by Adolf Hitler and by atomic war, the atomic bomb having already given evidence of its destructive power.31 Paradoxically, the collapse of the British, French, and Dutch   Myres S. McDougal, ‘Law as a Process of Decision: A Policy Oriented Approach to Legal Study’, Natural Law Forum 56 (1956): 53–​72, 55, 72 (footnote omitted; emphasis by McDougal). 28   For a particularly extensive treatment of these values, whose listing appears in numerous texts of the school, see Myres S. McDougal, W. Michael Reisman, and Andrew R. Willard, ‘The World Community: A Planetarian Social Process’, UC Davis Law Review 21 (1988): 808–​968. 29  The most comprehensive study on classical sources of the School is a late text by Myres S. McDougal and W. Michael Reisman, ‘The Prescribing Function in World Constitutive Process: How International Law is Made’, Yale Studies in World Public Order 6 (1979): 249–​84. 30   The assessment of their times as times of crisis appears constantly in the writings of the New Haven School in phraseology such as ‘in this perilous epoch of threatened catastrophe’ and ‘[i]‌n the age of the shattered atom and rumored bacteriological horrors’. The first of these phrases can be found in McDougal and Lasswell, ‘The Identification and Appraisal of Diverse Systems of Public Order’, p. 28, and the latter in McDougal and Leighton, ‘The Rights of Man in the World Community’, p. 494. 31   See Myres S. McDougal and Richard Arens, ‘The Genocide Convention and the Constitution’, Vanderbilt Law Review 3 (1950): 683–​7 10, 686, 694; see also with regard to human rights, McDougal and Leighton, ‘The Rights of Man in the World Community’, p. 536. 27

210    sources in the anti-formalist tradition empires and the process of decolonization that followed was another contemporary hazard providing for the background work of the school. This was so, not so much due to political principle—​since theirs was an all-​encompassing democratic theory—​but for the risk to US corporations and capital investments entailed by that process.32 In effect, one of the main forces driving the policy-​oriented approach of the New Haven School from its inception was to maintain the US position of global power.33 For the US of the 1940s, the New Deal period amounted to remote times.34 This signified, in the view of McDougal and his future associates, reaching beyond the modest cosmopolitanism of the previous decade to a future in which an American would be an internationalist acting with an awareness of the interdependence of the world to come after World War II.35 Certainly, much of the novelty of the New Haven School’s version of legal realism seems to originate in their perception of the dangers of isolationism. All this political baggage necessarily moulded the New Haven School’s enterprising attitude towards the ‘shaping’ and ‘persuasion’ exercised by values. In turn, this active policy approach determined the standpoint that McDougal and his associates would adopt regarding the question of sources of law. Since reliance on the legal text was but a strategy for discovering non-​objective facts such as shared expectations,

32   This is neatly summarized by Eugen V. Rostow in ‘American Foreign Policy and International Law’, Louisiana Law Review 17 (1957): 552–​571. Rostow was a professor at Yale, dean of the Law School, an active politician, friend, and collaborator of McDougal. McDougal and Reisman edited Rostow’s Festschrift, a reflection on the question of power and law, see Myres S. McDougal and W. Michael Reisman, eds, Power and Policy in Quest of Law. Essays in Honor of Eugene Victor Rostow (Dordrecht: Martinus Nijhoff, 1985). Rostow in turn wrote a fantastic biographical statement on the occasion of McDougal’s retirement, see Eugene V. Rostow, ‘Myres S. McDougal’, Yale Law Journal 84 (1975): 704–​15. An obituary by Rosalyn Higgins highlighted the fact that McDougal had been a Rhodes Scholar, , accessed 23 June 2017. 33   In an uncharacteristically candid statement on this question, McDougal, after declaring that the world had changed profoundly and that ‘[t]‌he safety of our country and of mankind as a whole is in greater peril than at any time in history’, pinpointed the two questions that American law schools had to address in the future: ‘For this country, two problems of overwhelming urgency are, first, to preserve our domestic strength and prevent economic depression and, secondly, to preserve our power position and handle our power negotiations in the world community with such effectiveness that we can force a compromise with competing ways of life that will remove the anti-​democratic elements, the elements that destroy human dignity, from all.’ McDougal, ‘The Law School of the Future’, p. 1348; a perceptive critique from the American side on the New Haven School and its support of imperialism by Phillip R. Trimble, ‘Review Essay: International Law, World Order and Critical Legal Studies’, Stanford Law Review 42 (1990): 811–​45. 34  On the type of attitudes, at once cosmopolitan and sectorial, belonging to the New Deal, from which McDougal very soon explicitly disassociated himself, see Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge: Harvard University Press, 1998), ch. 10. 35   According to Rostow, ‘[McDougal’s] wartime experiences shifted the focus of his immediate concern from the law of real property, which he called Land-​Use Planning, to international law, which he identifies as the Public Order of the World Community.’ During World War II, McDougal worked for the foreign affairs department. Rostow, ‘Myres S. McDougal’, p. 704.

mónica garcía-salmones rovira   211 relevant policies, and values,36 it is no surprise that the notion of source of law lacked the formal character—​in this case understood as external and objective—​that it had in other twentieth-​century theories of legal sources. In the words of the founder of the New Haven School and Reisman: Plainly the word ‘source’ can be no more than the vaguest reference to certain social processes.37

To put it simply, McDougal and his associates were not as a rule trying to ascertain the law. Instead, they searched for rules as shorthand expressions of community expectations.38 For instance, they took the view that the belief that a certain conduct is required by law or opinio iuris extends not only to law, but to any norm. In that weak sense, they viewed law as a medium through which to express policy, not as a goal of scientific activity. Hence, observed from a relatively mainstream contemporary position in relation to international law that reflected on ‘the stuff out of which the law is made’,39 the international legal world of the New Haven School was reversed, and so was its language. Take for example McDougal’s and Norbert A.  Schlei’s discussion of the use of the sea for hydrogen bomb testing that lists ‘sources of policy’—​that is to say, what others would call the list of formal sources of law—​and specifically cites Article 38 of the Statute of the International Court of Justice (ICJ). In the same piece they also describe the ICJ’s judges as the ‘decision makers’.40 With respect to the notion of ‘decision’, and diverging from the perspective of previous generations of international lawyers who regarded an actual list of sources of law as a sufficient basis for establishing the validity of international law, McDougal and his associates pointed to the existence of efficient decision-​making processes in the international arena as a means of countering those who might deny its validity.41 But it is probably the notion of ‘expectations’, as the members of the New Haven School conceived them, that provides a bottom-​up explanation of the school’s disapproval of the doctrine of sources. ‘Shared expectations’ made the public order possible. As elements of order, ‘expectations’ could not possibly be created by a concrete agreement, treaty, or custom, but by a constantly changing community. They,   Gottlieb, ‘The Conceptual World of the Yale School of International Law’, p. 111.   McDougal and Reisman, ‘The Prescribing Function’, p. 257. For an appraisal of the contrast formal/​informal, see d’Aspremont, Formalism, ch. 5. 38   This explains Hoof ’s critique that the policy-​oriented approach of the New Haven School put forward subjective values and that for them law is a means to an end. Godefridus J. H. Hoof, Rethinking the Sources of International Law (Deventer:  Kluwer Law, 1983), pp. 39–​44; compare with Oscar Schachter, ‘Towards a Theory of International Legal Obligation’, in Martti Koskenniemi, ed., Sources of International Law (Dartmouth: Ashgate, 2000), 9–​31, 15. 39   Gerald G. Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’, in Koskenniemi, ed., Sources of International Law, 153–80, 153. 40   Myres S. McDougal and Norbert A. Schlei, ‘The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security’, in McDougal and Associates, eds, Studies in World Public Order, 763–​843, 777–​8. 41   McDougal, ‘Jurisprudence for a Free Society’, p. 6. 36 37

212    sources in the anti-formalist tradition and not the formal sources, ought to be the primary interest of the lawyer. This made the doctrine of formal sources of law superfluous, or at least marginal compared with the position it held in relation to other theories of international law. It is worth quoting McDougal and Reisman on one of the many things they disagreed with in respect of ‘the ritual’ that commentators performed to make Article 38 of the ICJ Statute ‘the central focus of attention’: These commentators fail to recognize that the formulas of Article 38 are misleading not only because they direct the inquirer to an ambiguous and capriciously limited array of sources from which international law is alleged to derive, but even more seriously because they suggest to the inquirer that he or she may regard whatever emanates from these sources as, in fact, law. But this assurance may, in particular contexts, be belied by other communications or signals about authority and control. The product of a particular source may well be syntactic illusion, bearing little relation to genuine community expectations.42

McDougal’s disengagement with the formal theory of sources of law did not prevent him from being an active participant in momentous conferences for the discipline of international law with regard to sources of law, such as the United Nations Conference on the Law of Treaties in 1968.43 On the contrary, an international organization’s setting displayed an accurate channel for the sociological tenets of the New Haven School’s theory of sources of law described so far, as we shall see later. In 1974, on the occasion of McDougal’s retirement, Eugene V. Rostow described the New Haven School’s method as a further step in the history of legal realism.44 In his view, in the face of the events of the 1930s, McDougal and his associates had sought to overcome the nihilist stage that had come to dominate the US legal realism movement of the 1920s.45 Rostow went on to mention the interest shown by McDougal and others in the revival of modern natural law and the fact that they ‘were seeking to build a secular democratic Natural Law for modern America, and the modern world community’.46 This assessment, by someone who was on familiar terms with McDougal and who knew the New Haven School from within, accurately showed their double allegiance in methodological terms. But that McDougal’s ‘natural law’ was of a peculiar kind, founded neither on the reasoning of the judge  McDougal and Reisman, ‘How International Law is Made’, pp.  259–​60, 268. Statute of the International Court of Justice (San Francisco, 26 June 1945, 33 UNTS 993). 43   McDougal participated as representative of the US delegation, see , accessed 21 August 2017. 44   ‘McDougal’s work can be understood only in the context of the American realist movement, the soil in which it was nurtured.’ Rostow, ‘Myres S. McDougal’, p. 708. 45   ‘An interest in the moral content of law had seemed derisory to the sophisticates of the twenties. In the thirties, in the face of Hitler and Stalin, a Great Depression, and the apparently endless prospect of war and revolution, ethics had ceased to be a laughing matter.’ ibid., p. 715. 46   ibid., p. 715. Natural law is not defined here to avoid anachronisms, since there are as many definitions of natural law as authors employing the term, not to speak about the changes of the term over time. The sense in which McDougal, and for that matter Rostow, understood it is explained in the paragraphs that follow. 42

mónica garcía-salmones rovira   213 nor on the justness of the substance of law, its nature is nowhere more evident than in his dismissal of Lon Fuller’s critique of legal realism in one of his first scholarly contributions.47 McDougal both defended traditional legal realist tenets on which the theory of his own school would be based and repeatedly scorned any attempt to come to terms with ‘the transcendental nebulosity of the rational sciences of politics and ethics’. He concluded his critique by stating that ‘law is instrumental only, a means to an end and is to be appraised only in the light of the ends it achieves’.48 But even more fundamentally, McDougal’s core dissatisfaction with Fuller stemmed from the latter’s preference for a government of judges. By contrast, McDougal’s option was for a government by bureaucracy.49 In this vein, what had made legal realists obsolete was, in McDougal’s view, their lack of intellectual tools regarding sciences such as psychology, economics, or sociology.50 He believed that judges’ and scholars’ levels of knowledge of those disciplines and of the contemporary political and economic environment dictated whether they would mess everything up or take decisions that pointed in the right direction. It followed that anyone who glossed over the need for law faculties to invest in social sciences research was out of touch with reality. The New Haven School’s method stood, therefore, somewhere between legal realism and secular natural law. They adopted the former’s emphasis on the centrality of decision-​making and on the constantly changing reality and the latter’s aspect of value choice with a determined content.51 Their double commitment regarding methods also generated their shift from a traditional doctrine of formal legal sources towards ‘sources of policy’. This is well illustrated by the following quote, which is one of the New Haven School’s most frequently repeated statements: For us, as law students, the most important general question is:  How does one identify authoritative and controlling rules? In more detail, who in any given community prescribes what rules, with respect to what values, for whom, and by what procedures?52

Today, one reads with some amusement the domestic battles that McDougal and his associates had to fight to help introduce the internationalist spirit and the new 47  ‘Exactly how is the ethical philosopher to make the salto immortale from the “predilections of individuals” to the “inner essence of things”? Not a single hint—​not one glimpse of the sacred text—​does the author give us. How true it is that “nature” does not “present us with the is and the ought in neatly separated parcels”! Nature doesn’t present us with anything, not even “natural law,” in neatly separated parcels: we have to slice nature as we do cheese, in the ways that suit our convenience and our specific practical purposes.’ Myres S. McDougal, ‘Fuller v. The American Legal Realists: An Intervention’, Yale Law Journal 50 (1941): 827–​40, 832. 48 49   ibid., pp. 834–​5 (emphasis McDougal).   ibid., p. 837. 50   ‘It is no cause for wonder that the fruits of “realistic” research have been, as Professor Fuller insists, pitifully small compared to the noise.’ ibid., p. 839; see also Eugene V. Rostow, ‘The Study of Economics in Relation to Education in Law’, Journal of Legal Education 2 (1949): 335–​43. 51   See McDougal, ‘Law as a Process of Decision’.    52 ibid., p. 55.

214    sources in the anti-formalist tradition international law into the US. Their position was considered ‘impolitic’.53 However, notwithstanding the critiques made, their standpoint contained some element of political strategy aimed at furthering the good of their country. The golden era of isolationism was probably over in any case. Moreover, the political element was not lost in the notion of government by administration and the ideal transformation of the division of powers (legislative, judicial, and executive) into functions of policy that the New Haven School promoted.54 Rather, the political element was distributed among the series of values it advocated. Formulated in the abstract, values such as ‘enlightenment’, ‘power’, ‘wealth’, and ‘human dignity’ remain empty of meaning. However, they were concretized through the efforts made by McDougal and his associates. On the one hand, these had the effect of harmonizing the shaping and influencing the course of (international) decisions and omissions with their own brand of neoliberal politics. On the other hand, they helped bring US interests in line with expressions of policy and law originating from post-​war internationalism and the increasingly active international organizations then in existence.55 In the eyes of the New Haven School the latter constituted the future of the sources of international law: In light of the developments of recent decades, the most striking omission from the itemization in Article 38 is, of course, that of reference to the role of international governmental organizations in the creation of both explicitly formulated law and customary expectations.56

International organizations thus closed the circle of community expectations for law and possibilities of influence in law-​making, constituting a building block of the theoretical tenets of the school.

III. Schmitt While the New Haven School turned to the informality of functions occurring in the processes that culminated in a decision becoming law, Schmitt’s informal

53   The article ‘The Rights of Man in the World Community’ is a good example of that. McDougal and Leighton are responding to the charge that internationalism in the form of the program of human rights was ‘impolitic’ and driven by ‘a missionary spirit on the part of social and economic reformers to establish throughout the world their social and economic ideas . . .’ (pp. 501, 529). 54   McDougal, ‘Law as a Process of Decision’, p. 57. 55   McDougal and Leighton, ‘The Rights of Man in the World Community’, p. 532. 56   McDougal and Reisman, ‘How International Law is Made’, pp. 265–​6.

mónica garcía-salmones rovira   215 decisionism also became prominent among twentieth-​century legal theories. His detailed study of the concept appeared in 1934 in a booklet entitled On the Three Types of Legal Scientific Thinking (Über die drei Arten des rechtswissenschaftlichen Denken). But it was the reality of ‘concrete order’ rather than ‘decisions’ that he would prefer as the source of law (Recht). In On the Three Types of Legal Scientific Thinking, Schmitt divided into three the working concept of law for any legal science: norm, decision, and concrete order. He regarded the writings of Thomas Hobbes as representing the classic form of decisionist thinking in which decision was the source of all law, not only as command, but also as authority and sovereignty.57 Nevertheless, neither decisionism nor normativism were the types of juristic thinking that times required. Normativism, as we shall see later, was in his view only capable of capturing purely juristic phenomena. Therefore, it failed to account for the aspects of social, economic, or political thinking needed to capture many contemporary State phenomena.58 The new division of the State into State, movement, and people (as opposed to the previous division between State and society) also made decisionism inadequate to address the contemporary situation. Arguably at once trying to please the Nazis and not to renounce his own theory, in On the Three Types of Legal Scientific Thinking Schmitt expressed in an absurdly intricate way the idea that the Führer was not the source of law. Rather, new order was to be founded through novel interpretations of maxims such as boni mores (gute Sitten) and ‘good faith’ (Treu und Glauben) in the interests of the people in general and not only in favour of the individualist bourgeois society.59 In the same vein, in the propagandistic and rightly infamous ‘The Führer Protects the Law’ written that same year, Schmitt had stated that in killing Röhmer and his collaborators, the Führer had acted as the head of the people and not as a ‘republican dictator’ who would create ‘complete facts in an empty space’ according to the needs of the situation at hand. In other words, the Führer’s action had not been taken within a decisionist framework. ‘All law’, Schmitt concluded, ‘originates in the life of a people.’60 The reading of some of his most influential German interpreters during the 1970s was that Schmitt constantly moved between a theory of the existential political decision and a natural law of the concrete order.61 But with regard to this type of interpretation, Reinhard Mehring rightly points out that the ‘decontextualization   Carl Schmitt, Über die drei Arten des rechtswissenschaftlichen Denken, 3rd edn (Berlin: Duncker & Humblot, 2006), p. 23. 58 59   ibid., pp. 10–​20.  ibid., p. 49. 60   Carl Schmitt, ‘Der Führer schützt das Recht’ (1934), in Schmitt, Positionen und Begriffe, 199–​203, 200–​1; see also Schmitt, Über die drei Arten des rechtswissenschaftlichen Denken, p. 55. To be sure, the last few pages of the text change into agonizing Nazi tone. 61   Ingeborg Maus, Bürgerliche Rechtstheorie und Faschismus. Zur sozialen Funktion und aktuellen Wirkung der Theorie Carl Schmitts (Munich: Fink, 1976), pp. 19 ff. 57

216    sources in the anti-formalist tradition of theoretical history is profoundly alien to Schmitt’.62 And in an important sense to describe Schmitt’s thought on ‘concrete order’ as ‘natural law’ is to do exactly that—​to idealize that concept by extracting from it its existential aspect.63 As the German jurist explained in 1928, ‘the concept of legal order contains two completely different elements:  the normative element of law and the existential element (the element of being) of the concrete order’.64 Thus ‘the concrete order’ was not natural law, but it amounted to the ‘objective content of the norms and specific meaning of the institutions’.65 Schmitt favoured the concept of ‘concrete order thinking’ over that of ‘thinking in terms of institutions’ (institutionelles Denken) due to the inconveniences that he found with the foreign word ‘institution’ within the German language.66 His admiration for the French administrative lawyer theorist Maurice Hauriou originated in the latter’s work on the praxis of the French administrative law generally, and in particular of the Conseil d’Etat. ‘His theory of the “Institution” ’, affirmed Schmitt, ‘has arisen from the concrete perception of a concrete order.’67 The historicity of the concrete order is also unquestionably visible in Schmitt’s essay, ‘The Situation of the European Legal Science Today’.68 That text is probably the most clearly articulated description of Schmitt’s position on the sources of law. The author began by opposing the formal legal positivism exposed by Heinrich Triepel’s dualism of inner and external law with the concrete order of the ius publicum Europaeum flourishing in Europe from the seventeenth to the nineteenth centuries. Schmitt described the ius publicum Europaeum as the product of crossed receptions and rejections of Roman law by European nations, which had evolved into the certainty of a ‘common law’, until the nineteenth century brought with it the confusion produced by formal positivism. Schmitt’s historical method pointed to the concrete European order created by centuries of legal intercourse among Europeans. In this regard, one could affirm that for Schmitt Europe itself was an institution. In contrast to that view, formal positivism denied the importance of the context created by the ‘political, social and economic meaning of the concrete orders and institutions’. In that vein, Schmitt affirmed that ‘he [Triepel] considers Völkerrecht, more correctly, the norms of interstate relations; then it is only and recurrently the single States that

62   Reinhard Mehring, ‘Kant gegen Schmitt:  Ingeborg Maus über Volkssouveränität’, Der Staat 52 (2013): 435–​54, 453–​4. 63   Although nothing prevents the expansion of the notion of natural law to this type of existential thinking. While it is not a common contemporary understanding of it after modernity, it could lead to a range of new doctrinal possibilities. 64  Schmitt, Verfassunglehre, p. 10. 65   Carl Schmitt, ‘Die Lage der Europäischen Rechtswissenchaft’, in Schmitt, ed., Verfassungsrechtliche Aufsätze aus den Jahren 1924–​1954 (Berlin: Duncker & Humblot, 2003), 386–​429, 389. 66 67  Schmitt, Über die drei Arten des rechtswissenschaftlichen Denken, p. 47.  ibid., p. 46. 68   See generally Schmitt, ‘Die Lage der Europäischen Rechtswissenchaft’, in particular p. 411: ‘The law as concrete order cannot be separated from its history.’

mónica garcía-salmones rovira   217 create the norms, by will, through mutual treaties, conventions or customs of positive interstate law. We never arrive at a concrete order.’69 Although the text only contains a few hints of it, between Constitutional Doctrine written in 1928 and The State of the European Legal Science of 1943 occurred the events in Germany in which Schmitt’s personal involvement would compromise his career and reputation for good.70 In contrast to McDougal’s steady gaze towards the future, following progress, during the very same years of World War II, the most sinister of the dark Nazi era, Schmitt turned to the past. To observe this fact in its historical moment might help to understand why Schmitt, beyond his otherwise unoriginal critique of Triepel’s dualism,71 ignored the potential of the doctrine of international legal sources to contribute to an international legal order. It is useful to remember that by the time he was writing ‘The Situation of the European Legal Science Today’, Article 38 of the PCIJ had been in place for twenty years.72 As mentioned before, from his political perspective, for Schmitt, any legal institution—​the doctrine of international legal sources included—​stemming from these amalgams of dubious political events and interventions that he considered the League of Nations to be, would be at the very least open to suspicion on the grounds of inadequacy. In the search for the reasons for Schmitt’s dismissal of the doctrine of sources, one can also resort to the German jurist’s most idiosyncratic theory—​the idea that topos (space) is decisive to the origin of order. In this manner one can seek to grasp his idea that law acts principally upon land, which is seen as a unity of order and location. The importance of the spatial dimension to Schmitt’s thinking can also be seen in his legal-​geographical concepts, such as Nomos, Globalesliniendenken (‘thinking in terms of global lines’), Groβraumgedanken (‘greater space-​thought’), Geistesgeographie (‘Geography of the Humanities’), and Raum-​chaos (‘Space-​ Chaos’), that Schmitt described as ‘the expansion and enlargement of the most   ibid., pp. 388–​9 (emphasis added).   In 1933 Schmitt joined the Nazi party, and remained in close collaboration with the regime until at least 1936; for literature that directly or indirectly addresses Schmitt’s moral or personal motives, see Jacob Taubes, Ad Carl Schmitt Gegenstreibige Fügung (Berlin: Merve Verlag, 1987); Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters on the Distinction between Political Theology and Political Philosophy (Chicago: The University of Chicago Press, 1998); Koskenniemi, The Gentle Civilizer of Nations; Mika Ojakangas, Carl Schmitt and the Thought of Late Modernity (Jyväskylä: Kopijyvä Oy, 2004). For Schmitt’s biographies, see Andreas Koenen, Der Fall Carl Schmitt. Sein Aufstieg zum ‘Kronjurist des Dritten Reiches’ (Darmstadt: Wissenschaftliche Buchgesellschaft, 1995); Gopal Balakrishnan, The Enemy. An Intellectual Portrait of Carl Schmitt (London: Verso, 2001); for Schmitt’s own apology, see: Carl Schmitt, Ex Captivitate Salus, Erfahrungen der Zeit 1945/​47, 2nd edn (Berlin: Duncker & Humblot, 2002). 71   See Alfred Verdross, Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung, (Tübingen: Mohr Siebeck, 1923). 72   Gleider I. Hernández, The International Court of Justice and the Judicial Function (Oxford: Oxford University Press, 2014), pp. 22–​40; on Schmitt’s critique to the emerging liberal order, see Martti Koskenniemi, ‘International Law as Political Theology: How to Read Nomos der Erde?’, Constellations 11 (2004): 492–​511. 69 70

218    sources in the anti-formalist tradition specifically European into the empty space of a general universal’.73 No concrete order could have been possibly created in this fictional way, and therefore no law (Recht) could have originated from it. With his concern for ‘space’ the German lawyer entered theological territory well beyond the consideration of geographical space. For Schmitt, beyond the line lies fear, danger, der Angst. The power of space was derived from its theological character: human beings lived under this amiable power and this was our existential condition. In a diary written between 1947 and 1951 he expressed the consequences of the U. Topos (the absence of space) in the following words: [I]‌t is an abstraction from the dependency of Order and Location. Every order is concrete located law. Law is only law in the right place, on this side of the line. This is left aside by More.74 Nothing depends any more on location and space. The latter is not any more given by God or nature, but casually, willingly, freely chosen, even made, by human beings for human beings. . . . I see in the Utopia not a certain fantastic or ideal construction, but a system of thought that is established on the prerequisite of space’s abolishment and of delocalization (Entortung), the social life of humans not being any more bound up by space. In other words, ‘the drawing back of the limits of nature’, which makes human beings lords of nature. The human being creates his own world according to rational perspectives. With increasing technique the Utopia increases, in this sense, with keener dimensions. Ultimately it bumps into the last limit of nature, the nature of human being itself, and it conceives a body politic composed of human beings standardized according to plan.75

In these lines Schmitt at once articulates his particular theological theory as to the way in which space is a decisive feature of the social-​moral life of human beings, while also taking a negative stand on a question repeatedly addressed throughout the history of Western legal philosophy by philosophers including Aristotle, Dante, Francisco de Vitoria, Immanuel Kant, and Hans Kelsen: that of whether a political order can or cannot reach beyond the city or, in other words, whether there can be a universal order. While Aristotle thought that a political order could not do so, Dante was perhaps the first to answer the question in the positive.76 Of 73   Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum, 4th edn (Berlin: Duncker & Humblot, 1997), pp. 54, 258, 268, 203. 74   Schmitt is commenting critically on Thomas More’s Utopia. 75  Schmitt, Glossarium, pp. 46–​7. Robert Howse argues, following Leo Strauss, that Schmitt rather than a theological or religious foundation is to be understood having a ‘political atheism of the right’. This reading is incompatible with most of Schmitt’s writings, and in particular with Schmitt’s notion of space (Raum). However, one can arguably point to different stages of Schmitt’s thinking. In some of them Schmitt might have been experimenting in the direction that Howse poses. See Robert Howse, ‘Schmitt, Schmitteanism and Contemporary International Legal Theory’, in Anne Orford and Florian Hoffmann, eds, The Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press, 2016), 212–​30, 218. 76  Dante, De Monarchia, the ‘Oxford Text’ ed. Dr E. Moore, with an ‘Introduction on the Political Theory of Dante’ by W. H. V. Reade (Oxford: Clarendon Press, 1916); Irène Rosier-​Catach, ‘Civilitas’, in Iñigo Atucha, D. Valma, C. König-​Pralong, and I. Zavattero, eds, Mots Médiévaux offerts à Ruedi Imbach (Porto: Fédération internationale des Instituts d’études médiévales, 2011), 163–​75.

mónica garcía-salmones rovira   219 course, to a large extent, the response given depends on how order is conceived, which is why Kelsen saw no problem in it. In his early view of a formal legal order with a strict separation between conflicting politics and scientific law, nothing could have been more sensible than a universal legal order, only if that separation could be real.77 If the previous arguments help to understand Schmitt’s political position and method, to understand Schmitt’s historical position in relation to the doctrine of formal sources it may be fruitful to revisit his detailed discussion of German nineteenth-​century theory of the sources of law in ‘The Situation of the European Legal Science Today’. Moreover, if read in the light of what Jean d’Aspremont has recently described as the ‘politics of deformalization in international law’, Schmitt’s discussion reveals that the current phenomenon of deformalization is but a new wave, an intensification of the phenomenon of positivism and its gradual demolition of the authority of law.78 Schmitt’s text divides the crisis of European legal science into two stages. The first crisis started with the victory of the legislative positivism of the early nineteenth century, which signified the separation of the concept of ‘legislator’ from that of ‘law’ (Gesetz).79 Statements such as ‘we have dreamt away the dream of natural law’ or ‘the law is smarter than the legislator’ were characteristic of that point in history. Schmitt took the view that the law, as an objective measure or ‘bridge’, performed the role of overcoming dissent between different parties within parliaments. While law embodied ‘objectivity’, the ‘legislator’ appeared as something internally fragmented and as a paradoxical self-​binding ‘subjectivity’. In turn, legal scientists took on the role of being commentators on the law—​on that which was regarded as being objective—​and therefore became members of a newly established authority.80 The second phase of the crisis commenced in the twentieth century in the context of the many historical events and developments that were then taking place and which called for rapid legislative enactments. The legal positivists avoided confronting every substantial problem on the basis that such problems were ‘unjuristic’, but economists and social scientists such as Gustav von Schmoller took over and profoundly changed the conception of law and State in the country.81 A shift from law to administrative measure, regulation, or ordinance occurred next. It was the turning of the State towards the economy that prompted what was termed ‘motorized law’: ‘[t]‌he law becomes now the means for planning, and regulation an act of   Hans Kelsen, Das Problem der Souveränität (Tübingen: Mohr Siebeck, 1920); for a comment on the turn to administration that his type of order requires, see Mónica García-​Salmones Rovira, The Project of Positivism in International Law (Oxford: Oxford University Press, 2013), generally ch. 8. 78   Jean d’Aspremont, ‘The Politics of Deformalization in International Law’, Göttingen Journal of International Law 3 (2011): 503–​50. 79   These themes are already present in Schmitt, Über die drei Arten des rechtswissenschaftlichen Denken, pp. 24–​33. 80 81   Schmitt, ‘Die Lage der europäischen Rechtswissenschaft’, p. 403.   ibid., p. 415. 77

220    sources in the anti-formalist tradition governance’.82 Schmitt pinpointed this moment as being the instant at which the role of a positivistic legal science disappeared. In the middle of an immense chain and sheer number of administrative organs, each of which reacted on the spot by taking particular measures in response to various external changes, there could no longer be a place for the authority of a legal scientist: Saying that the law is smarter than the legislator may be true up to a point, but it is a very different thing to state that a measure of governance enacted in response to a changing situation is smarter than the regulator who is best informed of the state of affairs in the place of governance.83

Schmitt went on to describe how, at the beginning of the nineteenth century, Friedrich Karl von Savigny, in some manner envisaging the positivist process to come, had produced a doctrine of sources of ‘existential meaning’, with which Savigny, in Schmitt’s view, fought ‘the existential struggle for the science of law’.84 The founder of the historical school regarded the notion of legal source as something that the jurist must cherish and study, and also took the view that the source of law was deeply connected with the notion of history. In this regard, the concept of ‘positive’ in which the legal source resided showed the law as something that was given, not posited. ‘For Savigny and his historical-​positive conception . . . the notion of source is, absolutely understood, the true origin and the true home; truly a source. It is neither a cistern for a pre-​scientific cadi-​justice, or a channelization facility for un-​juristic, un-​spatial planning.’85 The result of Savigny’s efforts and studies was to delay the codifications occurring all over Europe and to nurture awareness of the indispensability of a legal science nourished by scientific sources. Schmitt wrote: His importance does not lie in an argumentation, but in the intellectual situation that endows his main argument with historical magnitude his doctrine of the unintentional emergence of law; because it makes of the legal science the antithesis of the merely factual law of norms (Satzungsrecht), without throwing law into the civil war slogans of natural law.86

Schmitt’s conclusion was that with Savigny, legal science itself became the legal source: the profession of the lawyer (jurist), who was neither a theologian nor a philosopher, had a specific meaning, but equally the lawyer was not merely a function of a posited rule.87 Two years earlier, in 1941, Schmitt had produced a new edition of the booklet Völkerrechtliche Großraumordnung, which had originally appeared in the spring of 1939.88 This text sought to transpose the notion of concrete order into international

83 84 85   ibid., p. 407.   ibid., p. 408.   ibid., p. 411.   ibid., pp. 411–​12.   ibid., pp. 418–​19 (emphasis added). 87   Schmitt, ‘Die Lage der europäischen Rechtswissenschaft’, p. 422. 88   Carl Schmitt, Völkerrechtliche Großraumordnung mit Interventionsverbot für raumfremde Mächte, 4th edn (Berlin: Duncker & Humblot, 1991). 82

86

mónica garcía-salmones rovira   221 law. Schmitt noted, rightly, that interstate law had been superseded. A material example of this state of affairs was provided by the fact that not all the issues that mattered within the contemporary political world order could be solved by reference to the traditional law of order between States. The spheres of interest, demands for intervention, prohibitions of intervention for powers alien to the concrete space, divisions of the high sea, or problems relating to colonies remained external to it. But at the same time the universalistic theories characteristic of the English method, which tended to gloss over anything in scientific juristic thinking that would have a real impact on Britain’s global political interests, were also unhelpful.89 The principle that ‘the history of international law is in reality a history of empires’ must become manifest in the juristic thinking of the new international law. In common with McDougal and his associates, Schmitt held that the legal framework must be ‘planetarian’. However, in opposition to them, instead of a universalist order he affirmed an order of ‘greater spaces (Großräumen)’, reinstating his theory of ‘concrete order thinking’.90 Völkerrechtliche Großraumordnung is probably one of the texts in which Schmitt’s tragedy becomes most clear. This applies not only to Schmitt’s anti-​ Semitic remarks but also to the fact that the jurist and historical scientist wrote a profoundly anti-​historical text.91 Of all people, the champion of the ‘right law’ produced a legal theory about greater spaces which was intended to become the cornerstone of international law in the early years of World War II, during which the Third Reich fought a war to impose the irrationality of the Nazi system on Europe. Again, Schmitt’s normative project was ahead of the historical period in which he was living.

IV. Conclusions A discussion of the sources in the anti-​formalist traditions of the twentieth century must of necessity address the informal motives for their rejection of the formal

90   ibid., pp. 36, 66.   ibid., pp. 63, 78–​82.   Amidst controversial and intricate literature on Schmitt, Anthony Carty proposes a helpful interpretation of this text and of its links with Nazi politics. Völkerrechtliche Großraumordnung is at once ‘shocking’ (in Carty’s words) and destabilizing. With regard to how Schmitt situated the theory in context, Carty argues that ‘Schmitt gives only the slightest hint of what the political consequences of this analysis [in VG] must be against the background of 1941 in Europe’. Anthony Carty, ‘Carl Schmitt’s Critique of Liberal International Legal Order between 1933 and 1945’, Leiden Journal of International Law 14 (2001): 25–​76, 25, 44. 89 91

222    sources in the anti-formalist tradition doctrine of legal sources. The two schools presented here probably had a better grasp of the international political situation of the period in which they lived than other lawyers and schools, who did not stray from their comfortable roles as legal technicians or advisers. Schmitt was active as a writer on international law during perhaps the most traumatic years of European history. McDougal and his associates lived through a period that witnessed a cautious revival of Western legal traditions but also the novelty and increasing activity of international organizations. In that sense, for both schools the formal doctrine of the legal sources of Article 38 of the ICJ Statute seemed insufficient and unable to grasp contemporary political, economic, and social phenomena. But as the discussion has shown, it was not simply that the New Haven School and Carl Schmitt were unsatisfied with the doctrine of formal legal sources. Simply put, they had ambitious projects for international law that involved (intellectually) ambitious concepts of how law was generated. The social-​processes of the New Haven School could still accommodate the meta-​juristic considerations of an international liberal economic order. But a positivist concept of formal law could not capture the political layers of the international legal order that McDougal and his associates aimed to influence. The codification process of Article 38 of the PCIJ Statute rested on moral, economic, social, and political principles which went in parallel, in the sense of never meeting, with Schmitt’s juristic project of concrete order thinking, or for that matter, with other non-​Western juristic conceptions of order. Interestingly enough, the evolution of the understanding of sources of law seems to be currently heading towards what New Haven and Schmitt had in mind: more comprehensiveness, and ultimately more consideration of the contexts, as generative of law, in which norms are produced, be it international organizations per se or other institutional existential contexts, à la Schmitt.92 Hugh Thirlway for instance, although adhering to the traditional doctrine of the sources of international law, notes the nuance of current debates and concludes the recent edition of his book The Sources of International Law with the following thought: Even in a globalized or institutionalized world international law is ultimately what those subject to it—​essentially, States—​will it to be. They would have to be convinced that the current system is not merely less intellectually tidy than is desirable . . . but is an actual impediment to efficient international relations. That surely is not the case. An undeniable merit of the system based on traditional sources theory is that it is there, and it works.93

From the perspective described in the previous pages, both of McDougal and Schmitt, ‘States’ will’ would produce at most a tiny part of the surface of law (or 92   This idea is present as a background question in Jörg Kammerhofer and Jean d’Aspremont, eds, International Legal Positivism in a Post-​Modern World (Cambridge: Cambridge University Press, 2014). 93  Hugh Thirlway, The Sources of International Law (Oxford:  Oxford University Press, 2014), pp. 231–​2.

mónica garcía-salmones rovira   223 Recht) in the world. In this sense, their complex and ambitious description of what was law and how it was generated makes them current today. Independently of their respective political projects, New Haven and Schmitt’s Schools gave insights about how law was produced that were external to positivism.94 Both schools’ legal principles and theory of legal sources are worth analysing today due to the intensification of an institutional discourse—​envisaged by both schools—​in international law and in the discussion of the sources of law.

Research Questions • Is the concept of sources of law relevant to the New Haven and Carl Schmitt’s Schools? • Which are the characteristic features, common and distinct, in the anti-​formalism of sources of these two schools?

Selected Bibliography McDougal, Myres S., ‘The Law School of the Future: From Legal Realism to Policy Science in the World Community’, Yale Law Journal 56 (1947): 1345–​55. McDougal, Myres S., and Harold D. Lasswell, ‘The Identification and Appraisal of Diverse Systems of Public Order’, American Journal of International Law 53 (1959): 1–​29. McDougal, Myres S., and W. Michael Reisman, ‘The Prescribing Function in World Constitutive Process: How International Law is Made’, Yale Studies in World Public Order 6 (1980): 249–​84. McDougal Myres S., and Associates, Studies in World Public Order (New Haven: New Haven Press, 1987). McDougal, Myres S., W. Michael Reisman, and Andrew R. Willard, ‘The World Community: A Planetarian Social Process’, UC Davis Law Review 21 (1988): 808–​968. Schmitt, Carl, Die Kernfrage des Völkerbundes (Berlin: Ferd. Dümmlers Verlagsbuchhandlung, 1926). Schmitt, Carl, Der Begriff des Politischen, Text von 1932 mit einem Vorwort und drei Corollarien (Berlin: Duncker & Humblot, 1963). Schmitt, Carl, Völkerrechtliche Großraumordnung mit Interventionsverbot für raumfremde Mächte, 4th edn (Berlin: Duncker & Humblot, 1991).

  For a recent analysis of the concept of positivism, see García-​Salmones, The Project of Positivism.

94

224    sources in the anti-formalist tradition Schmitt, Carl, ‘Die Lage der Europäischen Rechtswissenchaft’, in Schmitt, ed., Verfassungsrechtliche Aufsätze aus den Jahren 1924–​1954:  Materialien zu einer Verfassungslehre, 4th edn (Berlin: Duncker & Humblot, 2003), 386–​429. Schmitt, Carl, Über die drei Arten des rechtswissenschaftlichen Denken, 3rd edn (Berlin: Duncker & Humblot, 2006).

Chapter 10

SOURCES IN THE ANTI-​F ORMALIST TRADITION ‘THAT MONSTER CUSTOM, WHO DOTH ALL SENSE DOTH EAT’

Upendra Baxi*

I. Introduction That monster, custom, who all sense doth eat, Of habits devil, is angel yet in this, That to the use of actions fair and good He likewise gives a frock or livery That aptly is put on.1

The Bard of Avon, nearly four centuries ago, summated some broad aspects of the anti-​formalist tradition of criticism of the doctrine of sources of international law. ‘Custom’ is a devil possessing an ‘angelic’ visage too: like the ‘man of all seasons’, it *  I wish to thank Dr S. Knuchel for her patient editorial efforts and cooperation.   William Shakespeare, Hamlet (Act 3, Scene 4).

1

226    sources in the anti-formalist tradition provides ‘a frock or livery . . . aptly . . . put on’ by the complex agents of international law; custom is at once a sheet anchor of public international law and its rope of sand as well. A long time ago, in the late 1960s, I  presented international custom in this Janus-​faced mode, quoting the Bard of Avon.2 At that moment, the Barcelona Traction case celebrated the articulation that ‘an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-​à-​vis another State’, and that ‘[i]‌n view of the importance of the rights involved, all States have a legal interest in their protection’.3 The declaration of erga omnes obligations has been reiterated in later decisions;4 how far these extend to core human rights has been the subject of lively controversy.5 In this chapter, I explore: (i) some aspects of the fine essay on anti-​formalism by Mónica García-​Salmones Rovira; (ii) the Third World Approaches to International Law (TWAIL) contexts of ‘custom’ as the source of international law norms and standards; (iii) the iusnaturalist invocation of custom specifically in the context of Warren Hastings’ trial and impeachment before the House of Commons; and (iv) the idea of a ‘future’ custom. A word needs to be said at the outset: historiography matters. One may choose to write about customary international law (CIL) purely as a history of ideas, or as a narrative of State obligations to comply with or observe international law, or yet as a history of events that disturb doxa and lead to a fresh start. No matter what, each one of us is eager to shape the context of understanding the world as it is while seeking to transform it in ways that a human world ought to be. To be shaped by contexts that we wish to change, to turn new constraints into opportunities, is the

  At the Grotian Society of International Law, Department of Jurisprudence and International Law, University of Sydney. 3   Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Judgment) [1970] ICJ Rep 3, 32, para. 33. 4  See North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (Judgment) [1969] ICJ Rep 3, 44; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, 98, para. 186. In the former case, the ICJ uttered the following, oft-​quoted, enunciation (p. 44, para 74): ‘Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are especially affected, should have been both extensive and virtually uniform in the sense of the provision invoked . . .’. 5   See Arts 4–​11 of the International Law Commission (ILC)’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, Annex to UNGA Res 56/​83 (12 December 2001), corrected by A/​56/​49 (vol. 1). On core human rights, see Martin Scheinin, ‘Core Rights and Obligations’, in Dinah Shelton, ed., The Oxford Handbook of International Human Rights (Oxford: Oxford University Press, 2013), 527–​40; see also nn. 10, 14, 23, 24, 25, 48, and 49 below. 2

upendra baxi   227 ‘difficult freedom’ (as Emmanuel Levinas puts in a different context),6 the eternal quest of international law and lawyers.

II.  Anti-​Formalism in Mónica García-​ Salmones Rovira’s Chapter Mónica García-​Salmones Rovira essays anti-​formalism with reference to the early phases of ‘decay’ (a stronger term is ‘disintegration’) of the European international law theory and some writings of the twentieth century.7 Her universe is the history of ideas about CIL in the writings of two eminent publicists: Myres S. McDougal and Carl Schmitt. The ‘disintegration’ of the Christian family of nations occurs in these very different hegemonic normative contexts; yet she illustrates a certain degree of continuity within the difference. The analysis of McDougal and Schmitt is situated in an early phase of late modernity. ‘Informed by a keen awareness of the earthquake caused in the international legal order by the collapse of the European empires after the 1930s’, McDougal and Schmitt were constructing a new tradition marked by the ‘realization of the decay of the positivist concept of law defined solely as the activity of the legislation’.8 García-​Salmones Rovira’s chapter takes us through the conceptions of order which constituted the ‘main point of disparity’: ‘the universalistic order of McDougal and his associates and the concrete order of Schmitt were in opposition’;9 yet, they thought, was at work in the making of modern and contemporary international law a continuum which articulated international law, including international customary law, ‘policy’, ‘decisions’, and ‘values’ of the community of States and of the peoples of the world, and not as a ‘goal of scientific activity’. We learn that texts of law matter, but so do the contexts in which a text is produced and interpreted, if not more so. That context forms much of our thought, or articulate totalities, is scarcely a new discovery; what is distinctive to García-​ Salmones Rovira is the insistence on the specificity of response: for McDougal, the response to current events (of the Cold War) was turning to the legal sources of the past; for Schmitt (writing amidst and after the Shoah) turning to the policy sources of the future was a response that aimed to capture the political layers of the 6   Emmanuel Levinas, Difficult Freedom: Essays on Judaism (Baltimore: Johns Hopkins University Press, 1997). 7   See ­chapter 9 by Mónica García-​Salmones Rovira in this volume, pp. 204, 205. 8   ibid., p. 204.    9  ibid., p. 206.

228    sources in the anti-formalist tradition international legal order that a positivist concept of formal law could not access.10 The notion of ‘policy sources of the future’ is nice indeed until we begin to take peoples’ (as contrasted with their collective persona—​the States) suffering seriously, as taking at least core human rights seriously. The relation between international customariness and human and social suffering is yet to be deeply explored. Even so, preservation of the normative core of lawness of international law (which somehow restrained sovereign State actors) was a theoretical task abandoned neither by the New Haven School nor by Carl Schmitt. Though they configured legality differently, as García-​Salmones Rovira demonstrates, these thinkers also stressed the relative autonomy of international law. The posited singularity of State consent is not merely always besieged by the multiplicity of fractured sovereignties, and what is called a State ‘interest’ or ‘decision’ emerges also according to time, manner, and circumstance, and is surrounded by cross-​purposes, unintended results, and even conceptual insurgencies (in the times traced by García-​Salmones Rovira and elsewhere in this volume) of non-​State actors and international organizations. The formation of customary law marks a distinction between the critical morality of international law and the positive morality of State (and now we might add the various non-​State) actors and conduct. If the conceptual takeaway is that the history of ideas (today named as social epistemology) about CIL is a contradictory unity of thought, so is sovereign State practice treating custom as a source or evidence of international law. There is, further, always a tension between the practice which prevails today as customary international law and that which ought to extend as such. This terrain also maps the changing roles and functions of international law, as well as those of State (and non-​State) conduct. If the aim of ‘anti-​formalist traditions’ is to overrule ‘existing law and existing politics’, while maintaining ‘order’, questions arise in comprehending any ordered change. But the way in which ‘order’ is conceived matters, even for those who would enlarge methods of law-ascertainment beyond positive law. For McDougal (and his associates), order ‘was fluid and constantly changing’; for Schmitt, on the other hand, what mattered was the ‘concrete order’, not the ‘universalistic order (of McDougal and his associates).

10   ibid., p. 217. See also Jochen von Bernstorff, The Public International Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge: Cambridge University Press, 2010); Bernd Ruthers, ‘On the Brink of Dictatorship: Hans Kelsen and Carl Schmitt in Cologne 1933’, in Dan Diner and Michael Stolleis, eds, Hans Kelsen and Carl Schmitt: A Juxtaposition (Gerlingen: Bleicher, 1999), 115–​22; Cesare Pinelli, ‘The Kelsen/​Schmitt Controversy and the Evolving Relations between Constitutional and International Law’, Ratio Juris 23 (2010): 493–​504; David Chandler, ‘The Revival of Carl Schmitt in International Relations: The Last Refuge of Critical Theorists?’, Millennium. Journal of International Studies 37 (2008): 27–​48; Syed Sami Raza, ‘On the Disruption of Postcolonial Constitutional Order: Hans Kelsen or Carl Schmitt?’, Vienna Journal on International Constitutional Law 6 (2012): 441–​66.

upendra baxi   229 Schmitt’s enigmatic expression ‘putting law (Recht) in danger in the name of law’ signifies ‘domestic legal sources or those drawn from the ius publicum Europaeum, as distinct from the doctrine of formal legal sources contained in Article 38 of the Statute of the PCIJ’ and a certain ‘deformalization of the concept of democracy’.11 McDougal and company also prefer the enlargement of the notion of ‘sources’ to include the law-​making activities and performances of international organizations. Both Schmitt and McDougal approach international law (and law itself) as a ‘decision’. Rather than follow the strict ‘policy function of application’ of the ‘authoritative decisions’, it was important to explore a whole ‘range of policy procedures’—​‘various community functions in formulating and applying authoritative prescription: intelligence, recommending, prescribing, invoking, applying, appraising and terminating’.12 The ‘confusion and ambiguity of traditional legal theory’ was to be removed by what García-​Salmones Rovira calls the ‘scientific depersonalisation of the decision’. However, the New Haven ‘School’ accentuated from its beginning an insistence on the ‘global power’ of the United States, and particularly of United States multinationals. McDougal’s notion that ‘[s]‌hared expectations’ made the public order possible is certainly one way of thinking about order, but this ignores that multiple visons of world order exist and clash.13 More basic, however, is the discursive tradition regarding ‘expectations’ from Jeremey Bentham to Niklas Luhmann; the latter particularly distinguished normative expectations from existential or contingent ones. If the latter failed to survive disappointment, the former are, and even become, more resilient when they are thwarted.14 This distinction in the nature of expectations, from community and its law, is crucial:  erga omnes or core human rights obligations function as CIL obligations and are distinct sources of State and interstate obligations marking a near-​universal opinio juris; but outside these lie a whole range of obligations actually assumed in State and international practice. On this aspect, a return to Carl Schmitt may be important, especially to his legal-​ geographical concepts, such as Nomos, Globalesliniendenken (‘thinking in terms of global lines’), Groβraumgedanken, (‘greater space-​thought’), Geistesgeographie (‘Geography of the Humanities’) and Raum-​chaos (‘Space-​Chaos’); these conceptions enabled, as he said, ‘the expansion and enlargement of the most specifically European into the empty space of a general universal’.15 The anti-​formalist should heed the caution that Schmitt sounded:  ‘[n]‌o concrete order could have been   See ­chapter 9 by Mónica García-​Salmones Rovira in this volume, p. 207.   ibid., p. 209.    13  ibid., p. 211. 14   Niklas Luhmann and K. A. Ziegert, Law as a Social System (Oxford:  Oxford University Press, 2004); Niklas Luhmann, A Sociological Theory of Law (Abingdon:  Routledge, 2013); Andreas Philippopoulos-​Mihalopoulos, Niklas Luhmann:  Law, Justice, Society (Oxford:  Routledge, 2010). As to Jeremy Bentham on expectations, see Upendra Baxi’s introduction to Jeremy Bentham, Theory of Legislation (Bombay: N.M. Tripathi, 1975). 15   See ­chapter 9 by Mónica García-​Salmones Rovira in this volume, pp. 217–18. 11

12

230    sources in the anti-formalist tradition possibly created in this fictional way, and therefore no law (Recht) could have originated from it’.16 A curious absence, perhaps, in García-​Salmones Rovira’s chapter is the relative neglect of Hans Kelsen and Joseph L. Kunz, whose Vienna School condemned the Treaty of Versailles as ‘harsh’ and as a potential ‘threat’ to the League of Nations, but advanced the view that even when a treaty is coercive, it creates the law of nations and international legal obligations. They resisted Third Reich attempted revisions on that ground. Schmitt’s position was decidedly ‘anti-​normativist’ in so far as ‘the organs of the League of Nations were not perceived exclusively as a hegemonic instrument of individual states, but were thought as representing “a community of States” ’.17 ‘Materialization’ of legal/​jural concepts was thus a pre-​requisite for a modicum of justice in international relations.18 I do not think, on reading García-​Salmones Rovira, that the TWAIL folks (see section III: The TWAIL Critique) had much to learn from this piece of intellectual history. She observes that the ‘dark tones’ of the New Haven approaches which primarily arose from Hiroshima-​Nagasaki and the Cold War were also aggravatingly complicated by ‘contemporary hazard’ constituted by ‘the collapse of the British, French, and Dutch empires and the process of decolonization that followed’.19 But the ‘collapse’ was no mere ‘hazard’; rather, it marked the end of the empire and the rise and growth of anti-​ colonial struggles, the birthing of the post-​Westphalian society and the law of nations and peoples, and furnished the premises of TWAIL thoughtways.

III.  The TWAIL Critique The predicament as well as complexity of international law are fully revealed in the TWAIL movement. On the one hand, TWAIL folks (myself included) repudiate the idea that CIL sanctions a divine right to empire, the ‘standard of civilization’ doctrine,20 and the notion of unequal treaties as a source of international   ibid., p. 218.   See Bernstorff, The Public International Law Theory of Hans Kelsen, p. 145. 18   See Upendra Baxi, ‘Some Newly Emergent Boundaries and Borders of International Law’, Indiana Journal of Global Legal Studies 23 (2016): 15–​37 and the literature cited and discussed therein. 19   See chapter 9 by Mónica García-Salmones Rovira, pp. 209–10; see also Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law (Cambridge: Harvard University Press, 2016) and my review in the Journal of Law and Society (forthcoming). 20   While this illustrative note cannot do full justice to the burgeoning TWAIL literature, see e.g., James Thuo Gathii, ‘Alternative and Critical:  The Contributions of Research and Scholarship on Developing Countries to International Legal Theory’, Harvard International Law Journal 41 (2000):  265–​75; James Thuo Gathii, ‘Rejoinder: Twailing International Law’, Michigan Law Review 98 (2000): 2066–​71; Makau 16 17

upendra baxi   231 law.21 On the other hand, they accept the maxim pacta sunt servanda as the very foundation of international law. The TWAIL theory and movement here may at best be exposed to a moving contradiction,22 though suffer from no logical contradiction. The TWAIL folks prefer to live and work with the ‘paradoxes’ of international law,23 rather than adopt a smooth surface of colonialism, imperialism, globalization, and neoliberal nutritarianism. They engage both resistance and renewal of public international law.24 The TWAIL folks respect the idea of sources of international law but negate the claim of customariness of certain aspects. A truly post-​Westphalian moment had begun in international law and relations.25 The anti-​colonial struggles denied the achievement of colonial legality as a paradigm of global governance; the emergence of Third Worldism,26 and TWAIL’s ‘history from below’,27 scattered emergent (Cold War) hegemonies,28 and so do, in various modes, the Global South modes of rationality and communication.29 All these developed, in some form or other, a TWAIL critique of colonial approaches to custom as a source of law at least in relation to sovereign equality of all States.30 Yet, the Global South State practice in relation to customary obligation is yet to be adequately theorized. W. Mutua, ‘Savages, Victims, and Saviours: The Metaphor of Human Rights’, Harvard International Law Journal 42 (2001):  201–​45; Gerry Simpson, Great Powers and Outlaw States:  Unequal Sovereigns in the International Legal Order (Cambridge: Cambridge University Press, 2004); Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007); Anthony Anghie and B. S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’, Chinese Journal of International Law 2 (2003): 77–​103; R. P. Anand, ed., New States and International Law (New Delhi: Vikas, 1972); Karin Mickelson, ‘Rhetoric and Rage: Third World Voices in International Legal Discourse’, Wisconsin International Law Journal 16 (1998): 353–​419. 21   Mathew Craven, ‘What Happened to Unequal Treaties? The Continuities of Informal Empire’, Nordic Journal of International Law 74 (2005):  335–​82. See also, Raj Bhala, ‘Hegelian Reflections on Unilateral Action in the World Trading System’, Berkeley Journal of International Law 15 (1997): 159–​ 244; Frank J. Garcia, ‘Doha, Security, and Justice: A Response to Professor Raj Bhala’, University of St Thomas Law Journal 9 (2011): 194–​213. 22  For this notion of creativity of mobile contradictions, see David Harvey, The Seventeen Contradictions of Capitalism (London: Profile Books, 2014), pp. 1–​14. 23   Anghie and Chimni, ‘Third World Approaches’, p. 103. 24   But see for some critical dissent, Mark Toufayan, Emmanuelle Tourme-​Jouannet, and Hélène Ruiz Fabri, eds, Droit international et nouvelles approches sur le tiers-​monde: entre répétition et renouveau [International Law and New Approaches to the Third World:  Between Repetition and Renewal] (Paris: Société de législation comparée, 2013). 25   David P. Fidler, ‘Revolt against or from within the West? TWAIL, the Developing World, and the Future Direction of International Law’, Chinese Journal of International Law 2 (2003): 31–​76. 26   See Baxi, ‘Some Newly Emergent Boundaries’. 27  Balakrishnan Rajagopal, International Law from Below:  Development, Social Movements, and Third World Resistance (Cambridge: Cambridge University Press, 2003). 28  See Baxi, ‘Some Newly Emergent Boundaries’. See further, John Lewis Gaddis, The Cold War: A New History (London: Penguin, 2005). 29   See above, nn. 20, 21. 30   The attitude of rejection is most manifest in the treaties that have been characterized as pertaining to colonial boundaries and borders: a kind of ‘geographic Hegelianism’ pervades postcolonial

232    sources in the anti-formalist tradition

IV.  Some Additional Puzzles If we were to take a step back, we would find that the reality of CIL (and of a unitary ‘international law’) reveals diverse regimes of international law31—​the prevalence of normative regimes of lex specialis, the ‘fragmentation’ of a supposedly unified law-​field, conflicting conceptions of global justice, human rights, development cooperation, and governance, within and outside the United Nations (UN) system and the growth of State-​supported but relatively autonomous specialized and other institutions and networks, plus the growth of regional organizations and social and human rights movements. We surely live in a world of transnational law—​within but also beyond what is conventionally understood as international law.32 And yet it remains to be said that what continues to matter is State consent, whether expressed through a treaty or custom. International law is said to be a consensual normative order expressing a ‘preference’ for ‘cooperation among States’. Opposed to this remains the general argument that the diverse regimes of international law do matter and remain liable to sovereign State and the rupture and disruption of people’s movements. The proliferation of ‘soft law’,33 the diversity of

practice:  see James Thou Gathii, ‘Geographical Hegelianism in Territorial Disputes Involving Non-​ European Land Relations:  An Analysis of the Case Concerning Kasikili/​Sedudu Island (Botswana/​ Namibia)’, Leiden Journal of International Law 15 (2002): 581–​622. Yet the Third World (as we knew it) and Third Worldism (as we know it) is responsible for many a practice (of special, even instant custom, and reiteration of new notions by the General Assembly (such as the ‘common heritage of mankind’, ‘right to development’, ‘precautionary principle’) which are said to have acquired the status of custom or ‘emergent custom’. See also Baxi, ‘Some Newly Emergent Boundaries’ and Robert Cryer, ‘Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study’, Journal of Conflict & Security Law 11 (2006): 239–​63.  See for an early warning, Upendra Baxi and William Holder, ‘Teaching of International Law in 1984:  Some Non-​Utopian Proposals’, Australasian Universities Law Schools Association, Annual Conference, University of Adelaide, 1971, , accessed 22 August 2016. 32   Peer Zumbansen, ‘Transnational Law, Evolving’, in Jan M. Smith, ed., Encyclopedia of Comparative Law, 2nd edn (Cheltenham:  Edward Elgar, 2006), 738–​50 and Zumbansen, ‘The Parallel Worlds of Corporate Governance and Labour Law’, Indiana Journal of Global Legal Studies 13 (2006): 261–​312; José Itzigsohn, ‘Living Transnational Lives’, Diaspora 10 (2001): 281–​96. 33   The work of the International Law Commission, the Human Rights Commission, and now the Human Rights Council deserves a special mention. On the right to development and the human right to develop that right, see Upendra Baxi, Human Rights in a Posthuman World: Cortical Essays (Delhi:  Oxford University Press, 2007), ch. 4; Margot E. Salamon, Global Responsibility for Human Rights: World Poverty and Development of International Law (Oxford: Oxford University Press, 2007); Sundya Pahuja, Decolonizing International Law:  Economic Growth and the Politics of Universality (Cambridge:  Cambridge University Press, 2011); Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003). See also Jean d’Aspremont, ‘Softness in International Law: A Self-​Serving Quest for New Legal Materials’, European Journal of International Law 19 (2008): 1075–​93. This is a valiant effort, in 31

upendra baxi   233 international disputes handling,34 and the recent ways of ‘fragmentation’ of international law have all revived the debates about the belief and behaviour nexus, or the much debated opinio juris35—​that is, State behaviour oriented to an international legal norm or totality of norms which are considered to lay down an obligation to obey. As Hans Kelsen established a long time ago,36 in a sense, customary norms precede treaty obligations by invoking the pacta sunt servanda principle. Many customary prescriptions have become treaty obligations later, and in a sense also accompany treaties (co-​treaty) and post-​treaty obligations. The emergence, however, of instant and special custom, reiteration within the UN, special and regional custom, and human rights law and jurisprudence,37 has made the standard of proof of custom more precarious. This has raised many questions regarding ‘uncertainty’, ‘efficiency’,38 the author’s own words, to ‘offer a refreshed and modernized version of international legal positivism’ and so is the distinction between ‘scholarship that makes the law’ and ‘the law that makes the legal scholarship’ (emphasis in original). Indeed, the contemporary quest seems to be towards ‘trying to capture acts which are, from a positivist perspective, intrinsically outside the realm of law—​a process in which theorists ‘seek to enlarge the object of their science and consider international law as anything with an international dimension’ (p. 1088). D’Aspremont’s analysis of ‘motives’ inspiring this wider epistemological shift is certainly interesting, but the distinction between lex lata and de lege feranda is neither new nor peculiar to twentieth/​twenty-​first-​century international legal thought and doctrine. 34  Valentina Spiga, ‘Non-​Retroactivity of Criminal Law:  A  New Chapter in the Hissène Habré Saga’, Journal of International Criminal Justice 9 (2011): 5–​23; see more generally, Helen Quan, ‘Legal Pluralism and International Human Rights Law:  Inherently Incompatible, Mutually Reinforcing or Something in Between?’, Oxford Journal of Legal Studies 33 (2013): 675–​702. 35   Andreas Fischer-​Lescano and Gunther Teubner, ‘Regime-​Collision:  The Vain Search for Legal Unity in the Fragmentation of Global Law’, Michigan Journal of International Law 25 (2004): 999–​1046. See also Gunther Teubner, ‘Global Bukowina: Legal Pluralism in World Society’, in Teubner, ed., Global Law Without a State (Dartmouth: Aldershort, 1997), 3–​30; Joost Pauwelyn, ‘Bridging Fragmentation and Unity: International Law as a Universe of Inter-​Connected Islands’, Michigan Journal of International Law 25 (2004):  903–​16; Andreas Paulus, ‘Comment:  Commentary to Andreas-​Fischer-​Lescano and Gunther Teubner, The Legitimacy of International Law and the Role of the States’, Michigan Journal of International Law 25 (2004): 1047–​59. But see Gerald J. Postema, ‘Custom, Normative Practice, and the Law’, Duke Law Journal 62 (2012): 707–​38. Postema argues against this ‘additive’ conception of CIL and suggests instead an alternate narrative where the normative complex called CIL is accompanied by an awareness of radical contingency. CIL is always ‘a contingent matter whether custom plays any role in a given legal system and, if it does play a role, what role that is’ (p. 736). These are crucial questions that can be only addressed by attention to the discursive method rather than a merely additive one. 36   Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (New York: F. A. Prager, 1950); see also the interesting discussion in Bernstorff, The Public International Law Theory of Hans Kelsen, pp. 165–​81, about Kelsen’s penchant for dropping opinio juris as a requirement for establishing a rule and norm of CIL. 37  Jörg Kammerhofer, ‘Uncertainty in the Formal Sources of International Law:  Customary International Law and Some of its Problems’, European Journal of International Law 15 (2004): 523–​53. See also Bin Cheng, ‘United Nations Resolutions on Outer Space: “Instant” Customary Law?’, Journal of the Indian Society of International Law 5 (1965): 23–​112. 38   Eugene Kontorovich, ‘Inefficient Customs in International Law’, William and Mary Law Review 48 (2006): 859–​923. This rich analysis argues that ‘the efficiency of norms from the perspective of States is not the only relevant criterion for assessing the normative desirability of international custom’ (p. 870).

234    sources in the anti-formalist tradition and the impact of custom. The ICJ has stipulated distinctions between binding ‘resolutions’ and ‘recommendations’ of the UN bodies and ‘internal’ (within UN) and (for the want of a better word) ‘external’ evidence of CIL;39 but this does not work well in practice.40 Another major difficulty is knowing the sources: one requires specialist epistemic resources to know in general what the sources are and whether a particular activity has become general or socially institutionalized, or any other kind of custom. These resources are generally provided by epistemic actors—​State policy actors, international lawyers (publicists), justices, and courts whose task is to say what norms, standards, and obligations apply in any given global social context. The difficulty lies not so much in knowing who the epistemic actors are, but how they define their tasks and conduct and the milieu of disputed global contents, which often include the denial of international legal binding norms. Those called ‘formalists’—​and they come in varying hues—​broadly support the idea of binding sources of international law; they believe that international law can be found, its rules, doctrines, and obligations ascertained, and, where necessary, enforced against a recalcitrant State actor. To facilitate this task, they variously maintain a hierarchy of sources,41 following which a true meaning of obligatoriness of norms of international law may be derived. The principle of State consent reigns; and the proof of custom is made stringent. The formalists have considerable value as they contribute to law-​ascertainment; the ascertainment, as the naming indicates, must be based on law as it exists (the positive law of nations as it exists), not law as it ought to exist (the natural law of nations as it ought to exist). And this distinction between lex lata and lex feranda is quite crucial, not just for norms of international law which bind nations, but for the actual practice of interstate relations.42   Effects of Awards of Compensation made by the United Nations Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47, 58. 40  The literature here is vast:  see e.g., Adam Basak, Decisions of the United Nations Organs in the Judgments and Opinions of the International Court of Justice (Wrocław:  Zakład Narodowy im. Ossolińskich, 1969); Hubert Thierry, Les résolutions des organes internationaux dans la jurisprudence de la Cour internationale de Justice, vol. 167, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1980), 385–​446; Rainer Lagoni, ‘Resolution, Declaration, Decision’, in Rüdiger Wolfrum and Christiane Philipp, eds, United Nations: Law, Policies, and Practice (Dordrecht: Martinus Nijhoff, 1995), 1081–​91; Blaine Sloan, United Nations General Assembly Resolutions in Our Changing World (Ardsley-​on-​Hudson: Transnational Publishers, 1991); Marko Divac Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’, European Journal of International Law 16 (2005):  879–​906; Rosalyn Higgins, The Development of International Law through the Political Organs of the United Nations (Oxford:  Oxford University Press, 1963). 41   Article 38 of the Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993). 42   One must note here an approach that transcends the triad of customary international law: Eibe Riedel develops an alternate approach accentuating ‘standards’ laid down by the political organs of 39

upendra baxi   235 A formalist approach is only possible when one postulates the law as knowable; that is ‘intelligible as an internally coherent phenomenon’, possessed with attributes of internal ‘consistency, predictability, logical coherence and ultimately autonomy and “closure” ’: these entail ‘a systemic isolation of the legal system from such things as politics and culture’.43 If formalism is to be identified generally with the ‘politics of control’, anti-​formalism celebrates the art of resistance to it; and this it does not merely by a critique of ‘determinacy’ and ‘closure’, but more specifically by the anti-​formalists’ preference of ‘substance’ over mere ‘form’ and their penchant for ‘broad rules’.44 Anti-​formalism may further be conceived as ‘deformalization’,45 and the rise of managerialism and rule by expert technicians.46 Its changing forms need to be carefully distinguished, but both generally share the vice of progressive Eurocentrism; this contribution is partly more concerned with alternate narratives. Out of many alternate narratives, I engage primarily the colonial and particularly the South Asia stories about the sources of customary international law. It is my contention that what we call anti-​formalism was the norm here. But before telling that story, I need to make a vital distinction concerning sources and the nature of international law.

V.  Empire-​Centred and Charter-​Centric Approaches Various distinctions have been drawn to articulate the diversity of international law, such as ‘Westphalian’ and ‘post-​Westphalian’, the classical versus modern, the colonial and the postcolonial, pre-​and post-​UN Charter, and human rights and post-​ human rights (in the Anthropocene Era). While the dichotomies deployed in such contrasts remain richly controversial, I want to sharpen the ideal type distinction the United Nations and other UN bodies; she recognizes the inner dialectics of ‘standards’ but celebrates these variously as ‘signposts, landmarks, buoys in an open sea’ as ‘a definite new source of international law’. See Eibe Riedel, ‘Standards and Sources. Farewell to the Exclusivity of the Sources Triad in International Law?’, European Journal of International Law 2 (1991): 58–​84.   Doreen McBarnet and Christopher Whelan, ‘The Elusive Spirit of the Law: Formalism and the Struggle for Legal Control’, Modern Law Review 54 (1991): 848–​73, 849. 44   ibid., pp. 851–​6; this article is valuable as it deals with the little-​explored area of company, financial, and tax laws at an international level. 45   See Jean d’Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). 46   See Martti Koskenniemi, ‘The Politics of International Law’, European Journal of International Law 1 (1990): 4–​31. 43

236    sources in the anti-formalist tradition by referring to Empire and the UN Charter-​centric ways of studying CIL-​type international law formations. The distinction does in a sense depend on a linear time: the time of conquest, colonization, savage racism, and unbridled violence of the colonial masters, despots, and pundits, who belligerently occupied the non-​European time, space, cultures and histories, resources and peoples. Long after the colonial Euro-​American invasion and occupation of peoples, resources, and territory disappeared into the dustbin of history, this syndrome continued with the new empires of the various phases of the Cold War, globalizations (often aptly described as the creation of colonies without colonizers) and human rights imperialism (the political uses of rights as signals and tools of the New Empire). We need considerably more by way of social epistemology (or what was earlier called the history of ideas and sociology of knowledge) of epistemic actors to grasp both international law and its sources when the empire itself becomes a regressive Eurocentric state of mind or social and ethical attitude.47 Each has developed conceptions of legitimacy and legality. In the empire-​centric international law, the concept of sources functioned to delimit Europe from its others. International law is concerned primarily as the justification of the Divine or later secular right to empire. It was in this sense that intentional law and its sources functioned in the service of ‘whites only’ empire:48 citizens-​beings with rights to contract and property were only to be found in Europe, and the rest were subjects.49

47   See Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’, Modern Law Review 70 (2007): 1–​30; Matthew Craven, Malgosia Fitzmaurice, and Maria Vogiatzi, eds, Time, History and International Law (Leiden: Martinus Nijhoff, 2006). See also the remarkable work of Boavetura de Souza Santos: in particular, ‘Beyond Abyssal Thinking: From Global Lines to Ecologies of Knowledges’, Review (Fernand Braudel Centre) 30 (2007): 45–​89; Boaventura de Sousa Santos, João Arriscado Nunes, and Maria Paula Meneses, ‘Introduction: Opening up the Canon of Knowledge and Recognition of Difference’, in de Sousa Santos, ed., Another Knowledge is Possible: Beyond Northern Epistemologies (London: Verso, 2007), xix–​li. José-​Manuel Barreto, ‘Epistemologies of the South and Human Rights: Santos and the Quest for Global and Cognitive Justice’, Indiana Journal of Global Legal Studies 21 (2014): 395–​422; Upendra Baxi, ‘What may the “Third World” Expect from International Law?’, Third World Quarterly 27 (2006): 713–​25, enlarged in Richard Falk, ed., International Law and the Third World: Reshaping Justice (London: Routledge, 2008), 9–​22. Also, Samantha Besson and John Tasioulas have edited a volume that seeks to uncover the ‘philosophy of international law’ and does much to combat the ‘conceptual scepticism’ that makes possible and intelligible the question whether international law is ‘law properly so-​called’, as John Austin would say. See Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010). 48   Robert Young, Postcolonialism: An Historical Introduction (Oxford: Blackwell Publishers, 2001). 49   See Makau W. Mutua, ‘The Ideology of Human Rights’, Virginia Journal of International Law 36 (1996): 589–​657, and Mutua, ‘Savages, Victims, and Saviours’; Simpson, Great Powers; Mahmood Mamdani, Citizen and Subject:  Contemporary Africa and the Legacy of Late Colonialism (Princeton:  Princeton University Press, 1996); Upendra Baxi, ‘New Approaches to the History of International Law’, Leiden Journal of International Law 19 (2006): 555–​66; Anghie, Imperialism.

upendra baxi   237 The consent of ‘civilized nations’, evidenced largely by custom, was relatively easy to find and it was found possible to say what the law was.50

VI.  Beyond Imperial Legal Cosmopolitization However, the colonial and imperial hegemony were questioned. Europeans have never ‘thought of Europe in merely local terms, but generalized it into a representative of the universal’.51 The same may hold true—​some would say more true—​ of America in relation to Spanish America, while acknowledging ‘the nominally shared but actually contested ideas and political forms: Christianity, republicanism, liberalism, democracy, sovereignty, rights, and above all the very idea of America’.52 The TWAIL scholarly movement has seized the moving contradiction between empire and the colony now, as in earlier times the anti-​colonial struggles combated Europe’s belligerent occupation.53

50   See e.g., John Westlake, Chapters on the Principles of International Law (Cambridge: Cambridge University Press, 1894), p. 78: ‘The society of States, having European civilization, or the international society, is the most comprehensive form of society among men . . . States are its immediate, men its ultimate members’; Lassa Oppenheim, International Law: A Treatise, vol. 1, 2nd edn (London: Longmans, Green & Co., 1912), pp. 3–​11; W. P. Heere and J. P. S. Offerhaus, eds, International Law in Historical Perspective, vol. 12 (Leiden: Martinus Nijhoff, 1998); Gerrit W. Gong, The Standard of ‘Civilization’ in International Society (Oxford: Oxford University Press, 1984); Robert H. Jackson, Quasi-​ States: Sovereignty, International Relations and the Third World (Cambridge: Cambridge University Press, 1990). 51   Martti Koskenniemi, ‘International Law in Europe: Between Tradition and Renewal,’ European Journal of International Law 16 (2005): 113–​24. 52   Greg Grandin, ‘The Liberal Traditions in the Americas: Rights, Sovereignty, and the Origins of Liberal Multilateralism’, American Historical Review 117 (2012): 68–​91. 53   See Anthony Pagden, ‘Dispossessing the Barbarian: The Language of Spanish Thomism and the Debate over the Property Rights of the American Indians’, in Pagden, ed., The Languages of Political Theory in Early-​Modern Europe (Cambridge: Cambridge University Press, 1993), 79–​98; Anghie, Imperialism, pp. 13–​31; Peter Borschberg, ‘Hugo Grotius, East India Trade and the King of Johor’, Journal of Southeast Asian Studies 30 (1999): 225–​48; Martine Julia van Ittersum, Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies, 1595–​1615 (Leiden: Brill, 2006); Charles H. Alexandrowicz, ‘Grotius and India’, Indian Year Book of International Affairs 3 (1954): 357–​67; Charles H. Alexandrowicz, ‘Freitas versus Grotius’, British Year Book of International Law 35 (1959): 162–​82. See also two inestimably important recent works: Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–​1933 (Cambridge: Cambridge University Press, 2015) and David Armitage and Jennifer Pitts, eds, C. H. Alexandrowicz: The Law of Nations in Global History (Oxford: Oxford University Press, 2017).

238    sources in the anti-formalist tradition I maintain that this inclusive perspective, or what has been termed ‘imperial’ legal cosmopolitanism by historians of international law, is itself a precursor of the contemporary deformalization of custom, or even the very idea of sources. In diversely urging repugnancy to the law of nature, these authors variously discredited the idea of Europe as an emerging hegemon, and ‘provincialized Europe’; they posited an eternal natural law from which the positive law of nations may not depart, and went to great length in showing that colonized nations not merely knew the idea of law and international law but many international law notions and custom passed into the making of modern international law. International law historians, particularly of the eighteenth century, have however shown and drawn based on sources and evidences both within and outside Europe a ‘perhaps unmatched, flourishing of critical approaches to the question of the scope of the European law of nations and the nature of legal relations between European and non-​European States’.54 Those who urged a more inclusive approach include European scholars and thinkers who challenged man’s inhumanity to man on the ground of received natural law thought, and despite being relatively unaware of different histories, ‘drew, likewise, on the ambiguous status of the law of nations as putatively universal despite its heavily European history’. But they ‘did so with the aim of chastening European power through legal constraints and obligations, including asymmetrical constraints that Europeans should recognize as binding themselves even when they could not presume to use them to bind others’.55 Charles Alexandrowicz, in the middle of the twentieth century, has shown how this inclusive standpoint was foregrounded in relation to Asia and Africa State practice, although some historians find his position somewhat overstated.56 Regardless, what we must question is what Jennifer Pitts regards as ‘parochial’, ‘hegemonic universalism’, which considers the non-​European others as ‘unfamiliar’ and therefore ‘unintelligible, irrational, and inferior’.57 She rightly urges us instead to develop a more ‘pluralist’ perspective on the ‘global legality’ as the way forward.58

  Jennifer Pitts, ‘Empire and Legal Universalisms in the Eighteenth Century’, American Historical Review 117 (2012): 92–​111. 55   ibid., pp. 95–​6. 56   ibid., pp. 99–​100. Jennifer Pitts criticizes both for an ‘overstatement’, even when recognizing the ‘dauntingly erudite’ scholarship of Alexandrowicz. In my opinion, this indictment is itself overstated because she recognizes that he ‘drew between an earlier legal universalism and the later “European egocentrism” stands directed at something both historically and normatively important’ (p. 104). Also important in this context is Pitts’ conclusion that ‘religious and cultural difference was no justification for differential standards of legal and political obligation’. Europeans had ‘a duty to treat their engagements outside Europe—​with powers and societies that might not share European legal principles and customs in all their particulars, but that were recognizably legal orders—​as just as binding, just as much a part of a global legal framework, as those within Europe’ (p. 119). 57 58   ibid., p. 120.   ibid., pp. 120–​1. 54

upendra baxi   239

VII.  Towards a Conclusion? But the overarching question remains: is CIL to be constructed to bind the States against their will? This question has been with us for a long time. It was more recently posed by the primacy accorded by the ICJ to opinio juris over State practice in the Nicaragua case.59 On the one hand, some argue that the case departs from the cherished principle of ‘normative graduation’ and has been subjected to ‘normative dilution’;60 on the other, ‘relative rationality’ is also defended on grounds of higher rationality to communitarian principles, which alone justify the rules that bind the States.61 What alternate or relative normativity may be and is, and how far it is immanent to, or transcendent of, the regime of international customary law are very crucial concerns. So too remains the question of whether one is thinking about the future of custom,62 as against the idea of future custom.63 This distinction is somewhat problematic if it relies on how international and para-​international adjudicatory institutions and ‘non-​traditional scholarship’ approach the received doctrines about CIL and how the idea of customariness in international law is itself undergoing transformation.64 Perhaps, this question makes better sense when refined as such:  should CIL be regarded as articulating the collective will in an overwhelming sense, of the bulk and generality of States? Are some States to be viewed as a managing committee of   Jean d’Aspremont, perhaps, was among the first thinkers to advocate ‘communitarian constraints irreducible to rules’ as a first step towards replacing ‘the general disrepute of the sources of international law’. See Jean d’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’, British Yearbook of International Law 84 (2014): 103–​30. How much critiques of this Dworkin-​like approach extends to d’Aspremont remains, as yet, an open question. 60   See Prosper Weil, ‘Towards Relative Normativity in International Law?’, American Journal of International Law 77 (1983): 13–​83. 61   See John Tasioulas, ‘In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case’, Oxford Journal of Legal Studies 16 (1996): 85–​128. 62   See Arajärvi Noora, The Changing Nature of Customary International Law: Methods of Interpreting the Concept of Custom in International Criminal Tribunals (Miltonpark: Routledge, 2014), pp. 2–​14. 63  Roozbeh (Rudy) B. Baker, ‘Customary International Law in the Twenty-​First Century:  Old Challenges and New Debates’, European Journal of International Law 21 (2010): 173–​204. Specifically referring to decisional trends within the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda as enunciators of new regimes, Baker strikingly well illustrates the impact of ‘non-​traditional scholarship’ on future custom—​‘the new debate being, in part, the implications of the shift in the traditional building blocks of customary international law and the role of international tribunals in the process’ (p. 184). The author urges in conclusion that we ought to move with great caution: ‘the articulation of new international legal norms must be undertaken with even more care than was once the case’ (p. 204). 64   Particularly due to the complex and contradictory spheres of international commercial, economic, financial law, and arbitration law under bilateral and multilateral investment treaties, several types of regime collisions complicate the being of international law; all this aggravates in talking about CIL when one turns to the so-​called soft law. 59

240    sources in the anti-formalist tradition (un)willing States acting in concert, and even without any appearance of lawfulness?65 Or are States regarded as a collective complex figuration of entities called ‘people’? Is (what John Rawls called) a ‘law of the peoples’ restrictive today of the customariness constituted by the doctrines of State sovereignty and impunity?66 It would perhaps, after all, be vain to think that philosophers have better answers than international lawyers, but this resource has yet to be fully explored.67 But if international custom is to be related, even equated, with grounds of justice, and especially in the Anthropocene Era,68 theories of justice have a good deal to offer to the grist of the mill of ‘materialization’ of custom as a source of international law in this and the coming centuries.   Charles H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (Sixteenth, Seventeenth and Eighteenth Centuries) (Oxford: Clarendon Press, 1967), and Alexandrowicz, The Afro-​Asian World and the Law of Nations (Historical Aspects), vol. 123, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1968), 117–​214, 127–​8. Alexandrowicz also observed that ‘[t]‌here is . . . no reason to consider nineteenth century positivists as the ultimate arbiters on the frontiers between superior and inferior civilization and of the timing of the entry of some of the ancient Asian States into the universal Family of Nations. The order in which these States entered the community of nations cannot be judged by nineteenth century standards only; it is a matter in which the views of the classic writers deserve to be taken into account.’ See Charles H. Alexandrowicz, Treaty and Diplomatic Relations between European and South Asian Powers in the Seventeenth and Eighteenth Centuries, vol. 100, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1960), 203–​316, 315; Alexander Orakhelashvili recently maintained that ‘[i]n classical writings . . . there is nothing to suggest that the law of nations applied differently to different nations’; see Orakhelashvili, ‘The Idea of European International Law’, European Journal of International Law 17 (2006): 315–​47. See also, Upendra Baxi, ‘Kautilyan Principles and Law of Nations’, ASLP/​IVR/​35a, University of Sydney, Department of Jurisprudence and International Law (Institute for Advanced Studies in Jurisprudence (1967). 66   John Rawls, The Law of the Peoples (Cambridge: Harvard University Press, 1999). 67  Anthony Carty, ‘Scandinavian Realism and Phenomenological Approaches to Statehood and General Custom in International Law’, European Journal of International Law 14 (2003): 817–​84. Carty suggests that a phenomenological approach would obviate any a defect of Scandinavian realism, though Alf Ross and Axel Hagerstorm were right to stress that we should avoid reification of States, State practice, and custom as ‘source’ of international law. 68   Upendra Baxi, ‘Towards a Climate Justice Theory?’, Journal of Human Rights and Environment 7 (2016): 7–​31. See further, Jörg Chet Tremmel, A Theory of Intergenerational Justice (London: Earthscan, 2009); Peter Lawrence, Justice for the Future Generations: Climate Change and International Law (Cheltenham: Edward Elgar, 2014); Simon Caney, Justice Beyond Borders: A Global Political Theory (Oxford: Oxford University Press, 2005); Axel Gosseries and Lukas H. Meyer, eds, Intergenerational Justice (Oxford: Oxford University Press, 2009); Clark Wolf, ‘Contemporary Property Rights, Lockean Provisos, and the Interests of Future Generations’, Ethics 105 (1995): 791–​818; Clare Colebrook, Death of the PostHuman: Essays on Extinction, vol. I (Ann Arbor: Open Humanities Press, 2014); Audra Mitchell, ‘Beyond Biodiversity and Species: Problematizing Extinction’, Theory, Culture & Society 33 (2016): 23–​42. Mitchell pluralizes extinction by providing categories for ‘several subjects of extinction’ and ‘ample grounds for revisiting the doctrines of species encoded in the images of “biodiversity”; “humanity”; “unloved” subjects; and “absent or non-​relational subjects” ’. She expounds and explores ingrained hierarchies and violence of the embedded exclusions and inequalities embedded in dominant discourses, and identifies possibilities for ‘plural ethico-​political responses to mass extinction’. She urges that we differentiate between ‘the disappearance of the (meta)physical species Homo sapiens and the “figural” extinction . . . of the normative figure of “humanity” produced by Western European humanism, modernity and capitalism’ (p. 29). See also, Timothy Clark, Ecocriticism on the Edge: The Anthropocene as a Threshold Concept (London: Bloomsbury Academic, 2015). 65

upendra baxi   241

Research Questions • What might be the future intertwining of custom and treaties in the mid-​twenty-​ first century? • How may we think of international customary law in the context of the Anthropocene justice?

Selected Bibliography Armitage, David, and Jennifer Pitts, eds, C. H. Alexandrowicz: The Law of Nations in Global History (Oxford: Oxford University Press, 2017). Besson, Samantha, and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010). Noora, Arajärvi, The Changing Nature of Customary International Law: Methods of Interpreting the Concept of Custom in International Criminal Tribunals (Miltonpark: Routledge, 2014). Orakhelashvili, Alexander, ‘The Idea of European International Law’, European Journal of International Law 17 (2006): 315–​47. Pitts, Jennifer, ‘Empire and Legal Universalisms in the Eighteenth Century’, American Historical Review 117 (2012): 92–​111.

Section  V I

SOURCES IN THE META-​H ISTORY OF INTERNATIONAL LAW

Chapter 11

SOURCES IN THE META-​H ISTORY OF INTERNATIONAL LAW FROM LIBERAL NIHILISM AND THE ANTI-​M ETAPHYSICS OF MODERNITY TO AN ARISTOTELIAN ETHICAL ORDER

Anthony Carty and Anna Irene Baka

I. Introduction If the meta-​history of international law is to be understood in terms of a second-​ level reflection upon the historical development of the sources of international law, i.e., a reflection as to how one should read and evaluate the history of the sources of international law, one normally begins by asking oneself whether

246    sources in the meta-history of international law theories and ideas are produced dialectically or in a linear-​accumulative fashion. This presumably answers the question whether one particular theory is problematic and whether it is meaningful to attempt normative change towards the ‘emancipation’ of a theory from semantic or other distortions. Generally, one could argue that the dialectical approaches to history assume more ontology, i.e. greater involvement of men in the formation and re-​formation of ideas. This is precisely the approach of Karl Marx and neo-​Marxists like Jürgen Habermas but, ironically, not of the one who is normally seen as coining the dialectic: Georg Wilhelm Friedrich Hegel. For the idealist Hegel, man is inferior to the perfect idea of State under which he is essentially subsumed. Unlike Marx, he rejects the material force of the dialectic and upholds the linear-​liberal way of interpreting history as a history of perfect ideas grasped by imperfect beings. The linear-​liberal way of Hegel is profoundly pessimistic. For Hegel, man is intellectually too weak to have a glimpse of perfect ideas and universal truths. Men are intellectually incapable of conceptualizing ideas in their ‘pure form’. Therefore, to bring change to the course of humanity is meaningless. Reversing habits is unnatural and goes against the tide of the universal Spirit (Geist).1 If there is indeed such a thing as teleology in international relations, there is, and will always be, an unbridgeable conflict between the individual and the universal; the unessential and the essential.2 Due to their being parts of the indeterminate Unchangeable, the essence of humanity and the idea of international justice will always be too abstract and elusive; essential beings that can never be disclosed to us directly and ‘through themselves’. Men are morally unreliable to either apply or transmit knowledge to others due to their being naturally driven by self-​interests. Not only does Hegel assert that morality is conventional,3 he is also convinced that men are governed by self-​interest and can be either good or vicious by nature, which is to him morally irrelevant.4 Hegel believes that, instead of striving for virtue and moral change, men should simply apply a liberal ‘laissez-​faire laissez-​passer’ attitude when dealing with others. A world that is governed by self-​interest and does not try to ‘correct itself ’ is a world that is natural and ‘honest’ to itself, for ‘[s]‌elf-​interest is better than it thinks it is: in realizing itself, it realizes Ends that are universal’.5 Following Hegel, Thomas Kuhn suggests that history is not a rational process through which one becomes aware of universals, but in reality a constant ideological struggle among incommensurable ideas that are either confirmed or falsified according to Karl Popper’s model.6  Georg Wilhelm Friedrich Hegel, Phänomenologie Des Geistes. Vorrede. Hegel’s Preface to the Phenomenology of Spirit, trans. Yirmiyahu Yovel (Princeton:  Princeton University Press, 2005), pp. 544–​5. 2 3 4 5   ibid., p. 134.   ibid., p. 524.   ibid., p. 544.   ibid., p. 545. 6   Karl Popper, The Logic of Scientific Discovery (London and New York: Routledge, 2002), p. 19. 1

anthony carty and anna irene baka    247 Therefore, for one to construe a meta-​history of the sources of international law, is it a matter of simply choosing between the linear or the dialectical approaches to history? Is it a matter of opting for a purely aesthetic assessment of paradigms and paradigm shifts? Or a matter of dialectically criticizing the fixation of jurists on the prominent liberal paradigm as well their alienation from the ethical, i.e. the idea of international justice?

II.  Meta-​History and the Phenomenological Method We do not respond univocally to what we largely consider as a purely academic question, i.e. whether the history of international law is to be read dialectically or in a linear way. In other words, the question whether the sources of international law are ‘constitutive’ or ‘constituted’ (editors’ question) is in fact artificial and made for the purposes of academic consumption. International law as a normative system is a political phenomenon and as such it is a combination of the empirical and the ideal. Although doctrines and theories are often isolated-​detached from the empirical world and endowed with an independent ‘life’ of their own, the relation between the empirical and the ideal never ceases to exist. In his Summa Theologica, Thomas Aquinas quotes Aristotle, who asserts that: ‘the soul understands nothing without a phantasm’.7 We tend to interpret our world by producing ideas; by imagining concepts, definitions, and theories that ‘describe’ phenomena. It is therefore a question of one being in constant alertness about man’s natural tendency, as well as of having access to a method of reasoning that can expose semantic distortions by linking ideas to the original empirical data that initially produced them. This method is the phenomenological method.8 Edmund Husserl, the father of phenomenology, asserts that ‘[no] fully developed science of fact could subsist unmixed with eidetic knowledge’.9 From the phenomenological perspective, concepts and knowledge do not ‘have a linguistic character   Thomas Aquinas, Treatise on Man, Part I, QQ LXXV-​CII, The Summa Theologica (London: Burns Oates & Washbourne Ltd, 1907), p. 16. 8   See also for an exhaustive development of this method, Anna Eirini (Irene) Baka, ‘The Dialectic of the Cave: Self-​Determination, Constitution and the Phenomenology of Deprivation’ (Ph.D. dissertation, The University of Hong Kong, 2016). The present chapter draws extensively on Baka’s reflections on Hegel, Husserl, phenomenology, and Aristotelian induction. 9   Edmund Husserl, Ideas: General Introduction to Pure Phenomenology (Sydney: Allen and Unwin, 1931), p. 35 (emphasis added). 7

248    sources in the meta-history of international law from the very beginning’,10 whereas ‘meaning is a reservoir of meaning ready to be used again in other structures’.11 Theories are ‘autonomous’ inasmuch as they detach themselves from the intentions of the author, the sociological conditions that led to the production of the text, and the original audience: this is how any theory can be de-​contextualized and then re-​contextualized in other ways and forms.12 This is what Paul Ricoeur describes as bricolage, a process where ‘the structure saves the event [and] the debris plays the role of a pre-​constraint, of a message already transmitted’.13 This surplus of meaning is the semantic basis that motivates cultural enrichment, tradition, and interpretation. Ricoeur argues that the problem with limiting knowledge to language is that the latter can only be the object of empirical investigations.14 Hence Martti Koskenniemi’s Wittgenstein-​inspired and extraordinary diagnosis of contemporary international law discourse, caught between cynicism and commitment, can only reveal, through its minute descriptiveness, a professional world which is morally aimless, confused, and vain, an endless struggle of clashing subjective preferences and strivings.15 Ricoeur applies the phenomenological method and argues that language has a double direction: an ideal (to say something) and a real (to say about something).16 This is immanence and transcendence. Through the mental process of phenomenological reduction, we can transcendentally discern what is immanent:  a world of essences and essential connections.17 Even axiological considerations can be traced back to certain protodoxa, namely a priori doxic posited meanings and primary beliefs.18 The purpose of phenomenology is therefore the reductive unravelling of the essence of concepts and theories, the fixation of meanings, and the ‘essentiality of the elementary concepts present in them’.19 Max Scheler takes Husserl’s categories of meaning a step further, and suggests that a ‘logique du coeur’, namely an ‘emotional apriorism’ can be applied to values as well.20 According to Scheler, our   Dieter Lohmar, ‘Language and Non-​Linguistic Thinking’, in The Oxford Handbook of Contemporary Phenomenology, Dan Zahavi, ed. (Oxford: Oxford University Press, 2012), 377–​98, 378. 11   Paul Ricoeur, Hermeneutics: Writings and Lectures, vol. 2 (Cambridge: Polity, 2013), p. 96. 12  ibid., p. 96. 13   Paul Ricoeur, The Conflict of Interpretations: Essays in Hermeneutics (London: Continuum Press, 1989), p. 45. 14  ibid., p. 79. 15  Anthony Carty, ‘Language Games of International Law: Koskenniemi as the Discipline’s Wittgenstein’, Review of Martti Koskenniemi’s The Politics of International Law (Oxford: Hart, 2011), in Melbourne Journal of International Law 13 (2012): 1–​20. In the forthcoming 2nd edn of Anthony Carty, Philosophy of International Law (Edinburgh: Edinburgh University Press, 2007), Anthony Carty also draws on Ricoeur and the classical theory of virtue dear to Hugo Grotius as well as Aristotle, to try to find a way to an individual serenity and from there to a general peace. 16  Ricoeur, The Conflict of Interpretations, p. 82. 17  Husserl, Ideas, p. 285. Phenomenological residuum is what is left out following phenomenological reduction, namely Husserl’s transcendental ‘bracketing’ or εποχή. 18 19   ibid., p. 285.   ibid., p. 387. 20   Max Scheler, Man’s Place in Nature (New York: The Noonday Press, 1961), p. xvii. 10

anthony carty and anna irene baka    249 emotions and senses can link us to a ‘value-​charged’ reality.21 All of the above are of great importance for the articulation of a meta-​history of international law. For Husserl, the phenomenological method can be applied to the theoretical and the normative sciences alike.22

III.  A Phenomenological Analysis of the Meta-​History of the Sources of International Law 1. The Apolitical–​Amoral Epoché Husserl’s phenomenology brackets semantic presumptions for the transcendental unravelling of the pure essence of theories and concepts. This process is named epoché (from the Greek word ‘εποχή’, meaning ‘epoch’ or ‘season’). There is a profoundly amoral and apolitical epoché that characterizes the history (and theory) of the sources of international law. Leo Strauss’ famous polemic against legal positivism’s fact-​value distinction reads: In about the last decade of the 19th century, social science positivism reached its final form by realizing or decreeing that there is a fundamental difference between facts and values, and that only factual judgments are within the competence of science:  scientific social science is incompetent to pronounce value judgments, and must avoid value judgments altogether.  .  .  .  This means that the ground which is common to all social scientists, the ground on which they carry on their investigations and discussions, can only be reached through a process of emancipation from moral judgments, or of abstracting from moral judgments: moral obtuseness is the necessary condition for scientific analysis. . . . The habit of looking at social or human phenomena without making value judgments has a corroding influence on any preferences. The more serious we are as social scientists, the more completely we develop within ourselves a state of indifference to any goal, or of aimlessness and drifting, a state which may be called nihilism.23

The standard argument is that the purpose of legal positivism coincides with that of modernity, which is the rationalization and purification of legal discourse from

  ibid., p. xvii .   Edmund Husserl, The Shorter Logical Investigations (London: Routledge, 1970), p. 23. 23   Leo Strauss, What is Political Philosophy? And Other Studies (Chicago: The University of Chicago Press, 1959), pp. 18–​9 (emphasis added). 21

22

250    sources in the meta-history of international law scientifically inappropriate metaphysical connotations and essentialist hypotheses.24 International jurists embrace the anti-​metaphysics of Jacques Derrida and particularly Ludwig Wittgenstein. Wittgenstein asserts that meaning is only contextual and consensual. Wittgensteinian anti-​metaphysics are premised on suspicion and distrust, for they assume that there is no objective moral truth to which anyone can appeal. Struggles for meaning are therefore inevitable, as is semantic coercion. Legal positivism prepared, ideologically, the ground for the predominance of the theory of (forceful) consent in the theory of the sources. Precisely because there is no place for morality in the theory of the sources and international law cannot appeal to objective values, it is the element of usefulness that defines its content. Good is the useful (to the powerful) and not the valuable (to all).25 Hegemonic usefulness undergoes a tactful ideological transformation: it silently detaches itself from its subjective, liberal-​capitalist, or national-​hegemonic context (e.g. free navigation for the naval hegemony of the colonial powers; American ‘revenge’ and the pre-​emptive war against the Muslim threat after the 9/​11 attacks) and eventually becomes objectified, formalized, normative, and global (general principle of the freedom of the seas; the ‘international’ war against terror). The transformation is significantly facilitated by the attitude of international jurists who reject metaphysics and the possibility of transcendence. What is not strictly legal is ‘moral’ or ‘political’ and therefore irrelevant to the anti-​metaphysics of the ‘pure’ discipline of law. Despite claiming to be amoral and apolitical, with their silence and intentional non-​ engagement, international jurists essentially contribute to the ideological metamorphosis of usefulness into generally ‘accepted’ international norms and principles. Apart from the modernist aversion to metaphysics, the origin of this legal ‘purity’ should also be sought in concrete cultural and psychological grounds. The political context of interwar Germany influenced the theories of Hans Kelsen and Carl Schmitt, who have set the concrete ideological foundations of legal positivism, legal realism, and the general theory of the sources of international law. What governs the thinking of both scholars is not the modernist appeal to abstract ideals of reason but, in fact, a disarming fear towards the other, which has accordingly produced and reproduced a strong compulsion against peoples and national identities.26 Whereas, for Kelsen, fear of the masses urged him to develop a compulsive neurosis for purity and order, for Carl Schmitt fear and insecurity grew into a paranoiac conceptualization of the other as a constant enemy.27 The mainstream maxim of moral and political purity should be understood within this German cultural context of animosity and the concrete historical period that produced it.  Jean d’Aspremont, ‘Wording in International Law’, Leiden Journal of International Law 25 (2012): 575–​602. 25   Paraphrasing Friedrich Nietzsche, On the Genealogy of Morality (Cambridge: Cambridge University Press, 1994), p. 12. 26  Anthony Carty, ‘Interwar German Theories of International Law:  The Psychoanalytical and Phenomenological Perspectives of Hans Kelsen and Carl Schmitt’, Cardozo Law Review 16 (1994): 1235–​92. 27   ibid., p. 1237. 24

anthony carty and anna irene baka    251 Within the German context, the ideology of Kelsen, which is also the ideology of international law, has been shaped and built upon a fetishistic obsession that opts for clarity and order at the expense of individual-​collective existence. Kelsen, a Jewish lawyer who was personally averse to the emerging mass paranoia of interwar Germany, was eager to orchestrate the removal of all nationalistic impurities and elements of mass-​psychology from legal theory.28 By doing so, he intended to construct an isolated legal haven that would be amoral, apolitical, and therefore ‘secure’ from the masses and politics of power (German National Socialism). The Kelsenian plan intended, and to a large extent managed, to isolate legal knowledge and normative validity from all surrounding social reality.29 Influenced by Sigmund Freud’s Group Psychology and the Analysis of the Ego,30 Kelsen’s plan was to create a theoretical background that would achieve the suppression and containment of the Volk psychology and the psychoanalytic tendencies of mass contamination (principle of suggestion). Because peoples, nations, and minorities are dirty and ‘contaminating’, they must be disregarded as psychological units and reconceived as purified and strictly delimitated legal entities.31 Kelsen executed his plan by striving to create a ‘neutral point of control’ that would transcend the psychology of the masses: an ought-​order (Sollordnung).32 According to the Sollordnung, the authority of a legal system is detached from society and subsequently grounded upon lawful coercion: an ascending order of ‘oughts’ that are themselves valid because they are coerced by a super-​ ought, the Grundnorm, which is the legal equivalent of Kant’s categorical imperative. The application of Kelsen’s neo-​Kantian pure theory in international law essentially suggests that normative coercion is needed because ‘States conclude treaties out of self-​interest.’33 Drawing from Freud, Kelsen’s theory assumes that States behave in analogous ways to individuals and therefore are themselves dangerous, subject to drives, instincts, and fears. In the domestic legal order, the element of coercion operates efficiently: it subjugates individual drives ‘in favor of a superior, coercive power that makes survival possible’.34 Because there is no such element in the international legal order, States will observe international law only insofar as the latter promotes their interests or does not conflict with their desires. It is now obvious that the mainstream international legal thinking is a neo-​Kantian intellectual product, which has kept the Hobbesean elements of insecurity and fear intact. The Kelsenian compulsion to rigidity, purity, and absolute control went through a hegemonic mutation. Detached from its subjective German cultural context, it was eventually objectified, formalized, and transformed into the standard mind set of international lawyers, scholars, and judges. The mind set of rigidity due to fear and the desire for absolute control is the formal way of thinking and arguing about law in most jurisdictions. The autocratic mind set has given rise to a massive academic and professional industry of legal technocrats with paralyzed moral and critical 29   ibid., p. 1244.   ibid., p. 1239.   Sigmund Freud, Group Psychology and the Analysis of the Ego (London: Hogarth Press, 1945). 31 32 33   Carty, ‘Interwar German Theories’, p. 1243.   ibid., p. 1239.   ibid., p. 1248. 34  ibid. 28 30

252    sources in the meta-history of international law faculties. Instead of encouraging creative thinking, law faculties urge their students to perform legal logistics, while specifically instructing them that it is wrong for a lawyer to raise moral or political questions. This has inspired among lawyers an intellectual habit: a habit of thinking, reasoning, and making decisions in an apolitical, amoral, and, ultimately, robotic way. Those who master the apolitical, amoral, and robotic way are those who are distinguished and rewarded. Despite claiming to be amoral and apolitical, with their silence and intentional non-​engagement international jurists essentially assent, and—​even from a Wittgensteinian perspective—​ legitimize the ideological metamorphosis of coerciveness into generally ‘accepted’ international norms and principles. This occurs either because they explicitly assent to the metamorphosis, or because they remain indifferent to those consensual processes of juridical discourse that attach concrete meaning to the sources of international law and the element of coercion embedded in them.

2. The Contractual–​Liberal Epoché The dominant contemporary international law ideology of legal positivism is that the source of the Law is consent. This ‘oppositional’ proposition signifies that it should not be based on the subjective reflections of doctrinal writers who claim a supposed access to a realm of objective values, rooted in natural law or whatever, abstract metaphysical order. Such a mirage evokes spectacles of Inquisitional Monks, the Spanish religious orders of Dominicans and Jesuits to which Francisco de Vitoria and Francisco Suárez belonged. Instead we have the Swiss Calvinist Emer de Vattel, who explains that there is nothing which should coerce the conscience of the Prince. Vattel develops the distinction of the internal moral obligation, which may rest on natural law and the external legal obligation, which can only rest on consent. With this move, liberal international law insists upon a moral void at the international level.

Excursus ‘From Freedom and Equality to Domination and Subjugation’ offers a systematic explanation of the role of consent in Vattel’s system:35 Vattel moves imperceptibly from a belief in the freedom of conscience of each nation, to a belief that their rights can be protected as a matter of external law, through agreement; to a belief that each nation has the freedom to determine whether and what is the extent of agreement; to a belief that differences are to be resolved, if necessary, through force. All of

 Anthony Carty and Xiaoshi Zhang, ‘From Freedom and Equality to Domination and Subordination:  Feminist and Anti-​ Colonialist Critiques of the Vattelian Heritage’, Netherlands 35

anthony carty and anna irene baka    253 these beliefs are accompanied by an anxiety that nations are always changing in the weight of power they enjoy in relation to one another, and where a consortium of States imagine, as a matter of conscience of course, that an individual State is a real threat to them, they may resort to coercion to reduce its power. This anxiety is in effect to place the whole law of treaties, contract and consent within the context of endless change of power balance and, while not abolishing the very idea of treaty, it makes it entirely dependent upon whatever the necessities of power struggles among nations should dictate. Nations may still resort to treaties/​contracts where the struggles of power have not reached beyond a certain point, a matter for their absolute discretion, but, it is more likely that the same nations will use the rhetoric of the sanctity of obligations to render culpable the nation forced into the role of victim.36

Key quotations from Vattel himself are: When a sovereign breaks his treaties, or refuses to fulfil them, this does not immediately imply that he considers them as empty names, and that he disregards the faith of treaties: he may have good reasons for thinking himself liberated from his engagements; and other sovereigns have not a right to judge him. . . . And as, in virtue of the natural liberty of nations, each one is free to judge in her own conscience how she ought to act . . . it belongs to each nation to judge whether her situation will admit of pacific measures, before she has recourse to arms. Now, as the voluntary law of nations ordains, that, for these reasons, we should esteem lawful whatever a nation thinks proper to do in virtue of her natural liberty, by that same voluntary law, nations are bound to consider as lawful the conduct of that power who suddenly takes up arms in a doubtful cause and attempts to force his enemy to come to terms, without having previously tried pacific measures.

There is increasing recognition in the history of political ideas, that the liberal perspective is integrally interwoven with the drive for global, commercial expansion, and that such expansion has been not merely predatory, but rested on justifications of racial supremacy. The logic of commercial expansion had to admit of no constraints. Holland (Hugo Grotius), England, and the United States (John Locke) built a justification of the use of force around the right to punish the bestiality of barbarian races, themselves fit subjects of enslavement: Richard Tuck’s The Rights of War and Peace, Political Thought from Grotius to Kant and, more recently, Domenico Losurdo, Contre-​histoire du libéralisme develop this thesis.37 The doctrines of moral inferiority went together with doctrines of economic inefficiency (nomadism versus intensive agriculture) to justify not merely enslavement but also systematic Yearbook of International Law 42 (2012): 53–​82, 59–​63. It is a development of the interpretation offered in the symposium edited by Peter Haggenmacher and Vincent Chetail, Vattel’s International Law in a XXIst Century Perspective, Le droit international de Vattel vu du XXIème siècle (Leiden:  Martinus Nijhoff, 2011).   Carty and Zhang, ‘From Freedom and Equality to Domination and Subordination’, p. 59.   Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 2001); Domenico Losurdo, Contre-​histoire du libéralisme (Paris: La Découverte/​Poche, 2014). 36 37

254    sources in the meta-history of international law dispossession. As Losurdo points out, it may have been due to the dispossession of the Irish that Locke justified this economic progress also in terms of moral turpitude, the disciplining of brigands.38 Losurdo quotes Grotius as saying that the most just war is against the humans who resemble ferocious beasts.39 As Losurdo points out, Richard Tawney’s Religion and the Rise of Capitalism (1951) identifies since the Glorious Revolution in England in 1688, a pitilessness towards the unemployed and the poor salaried, which is integral to the expansion of capital and trade.40 Jean Bodin, Michel de Montaigne, Bartolomé de las Casas, and even Adam Smith appreciated that only absolute power could resist the ‘avarice of the merchants’.41 The language of the rule of law and the right of property resisting absolute power, whether of George III against the Americans, or of the Spanish Hapsburgs against the Conquistadores, is the language of an unrestrainable, predatory commercial caste, which now sits dominant on the world scene.42 It can be seen in the complete control of the world financial system by the celebrated one per cent described in numerous contemporary critiques of national and transnational banking.43 In Philosophy of International Law, Anthony Carty concludes his description of the comparable arguments of Tuck—​he distinguishes scholasticism and Renaissance humanism rather than political liberalism and absolutism, but equally with a view to predatory, racially grounded Euro-​American economic expansion—​with a contemporary systematic grounding of the war against ‘Islamic fanaticism’ and ‘Islamic terrorism’ with an account of Richard Cooper’s The Breaking of Nations.44 To quote Cooper: We have, for the first time since the 19th century, a terra nullius . . . . And where the State is too weak to be dangerous for established States to tolerate, it is possible to imagine a defensive imperialism. . . . This is what we have today in Colombia, in Afghanistan, and in part in Israel’s forays into the Occupied Territories . . .45

In the Mainstream international law concerns about consent to obligation, there is a clear indication of an indifference to coercion in international relations. Matthew Craven explains how the idea of unequal treaty has been consigned to the dustbin of ‘redundant ideas’, after reviewing the opinions of Paul Reuter, Lucius Calfisch, and Jacques De Lisle.46 Treaties do, in conceptual terms, have a bilateral character depending upon the autonomy of the will of the parties, but to

39 40  Losurdo, Contre-​histoire du libéralisme, p. 36.  ibid., p. 33.  ibid., p. 45. 42  ibid., p. 45.   ibid., pp. 44–​5. 43   For instance, Bob Ivry, The Seven Sins of Wall Street, Big Banks, Their Washington Lacleys and the Next Financial Crisis (New York: Perseus Books, 2014). 44   Richard Cooper, The Breaking of Nations: Order and Chaos in the Twenty-​First Century (New York: Atlantic Books, 2003). 45   ibid., p. 133. 46   Carty and Zhang, ‘From Freedom and Equality to Domination and Subordination’, p. 76. 38 41

anthony carty and anna irene baka    255 the extent that any use of coercion is likely to be accompanied by some justificatory discourse, those disputing the validity of an agreement would be constantly fighting a rear-​guard action. The utter indifference of legal positivism to coercion in international legal relations is indicated by Craven’s alignment with Ian Sinclair’s view that the threat or use of force does not strictly speaking vitiate consent to a treaty. It is the commission of a delict, if it is unlawful. Therefore, consent needs to be stripped of its association with a factual absence of coercion. Consent is less an expression of ‘autonomous will’ and more the formal mode of acceptance of an instrument—​signified by signature, ratification, or accession ‘in which any psycho-​sociology of agreement’ was beyond the domain of law and in which the presence or absence of duress was largely irrelevant. Craven’s own conclusion appears primarily to wish to allow lawyers to escape the difficulties created for them by liberalism. Lawyers could rely upon a presumption of validity as a way of insulating themselves against the possibility that consent might too often be found defective; it was for the politicians to devise ways of ensuring that untoward influence is not exercised at the moment of negotiation. Equally representative of the Mainstream is Anne Peters’ entry on Unequal Treaties in the Max Planck Encyclopedia of International Law:  ‘[s]‌he accepts the same conceptual framework as Craven, beginning with the remarks that “the prejoritative term ‘unequal treaty’ (or more polemical ones such as ‘coercive’, ‘predatory’ or ‘enslaving’ treaties) refers  .  .  .  to the treaties between European powers, the United States of America . . . and . . . mainly Asian States” ’.47 These concepts are merely a focal point for nascent nationalism, a scapegoat for interior problems and backwardness. The pressures from Asian States, primarily from China, did not warrant any changes in legal obligations, for instance such as a supposed element of changed circumstances. Peters places her remarks within a general characterization of the nature of the contemporary international legal order and contemporary society. She says that resort to economic and political pressure exploiting the extreme power disparities is a pervasive feature of interstate relations. The result is treaties which are in procedural or substantive terms unbalanced. This practice goes so far into the foundation of the international legal order that ‘the freedom of the will of States is as yet no requirement of the validity of international treaties, mostly because an international institution which could effectively secure the genuine voluntariness of consent is lacking’.48 However, it is not just the absence of the sense of community of national society which counts for Peters. It is also the case that she finds the very idea of unequal treaty to be extremely vague. What types of power and influence are relevant? How would they be measured? At what point would the inequalities

 ibid., p. 78.   48 ibid., p. 79.

47

256    sources in the meta-history of international law in bargaining power and in the contents of the treaty become so intolerable as to flaw the treaty? Clearly the pathological idea of lawful coercion in international law goes to the very foundation of international law as a system of ideas in the Modern West since the sixteenth century. As Tuck has shown, this conceptual framework for Law has its roots in the liberal philosophies of Thomas Hobbes and Immanuel Kant. It affects not only the issue of consent to legal obligation, but the whole idea of legal order, the character of States, and their relations with one another. For Hobbes, the state of nature is a state of violence and injustice. Kant’s vision of world peace is very similar in that it embraces the idea of legitimate coercion. Kant suggests that, like men, States exist in a malevolent state of nature. Although violence and the ‘malevolent tendency’ among men and States cannot be grounded on human experience, coercion is nonetheless necessary because ‘however well-​disposed and law-​abiding men might be, it still lies a priori in the rational Idea . . . that before a public lawful condition is established, individual men, peoples, and States can never be secure against violence from one another, since each has its own right to do what seems right and good to it and not to be dependent upon another’s opinion about this’.49 It follows from the philosophies of Hobbes and Kant that the sources of inter­ national law have no objective moral content and that law in general cannot be based on objective values and principles, and therefore all ‘value-​based decision-​making’ is inevitably irrational, subjective, violent, and chaotic.50 In such a legal system, lawful coercion and the international imbalance of power produce a lawful imbalance of wrongfulness. Wherever possible, powerful States punish weaker States for harmful conduct but omit doing so for their own harmful actions. They take advantage of the political and economic inequality and impose convenient forms of international wrongfulness through forced ‘consents’. This has been precisely the case with the Vienna Convention on the Law of Treaties (VCLT), which envisages that harmful actions that are very likely to be performed by powerful western States—​namely acts of economic and political coercion—​are not wrongful.51 States exist in a primitive state of nature with the element of genuine mutual recognition—​namely one based on respect and not on fear—​entirely lacking. The dipole of coercion and fear has marked the development of international law. By exercising unlawful coercion, powerful States create de facto situations that are left unpunished. By exercising lawful coercion, powerful States manage to attach formality to their own values, which they subsequently convey to, and/​or enforce upon, others through such norms as the right to humanitarian intervention, the exercise of pre-​emptive attacks, the war against terror, or even general customary   Immanuel Kant, The Metaphysics of Morals (Cambridge: Cambridge University Press, 1991), p. 124.  Carty, Philosophy, p. 200. 51   Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331). 49 50

anthony carty and anna irene baka    257 law. International law is essentially imperial law, for powerful States use their ‘military, technological, and economic superiority to create a geo-​strategically suitable world order in accordance with [their own] concepts of good and evil’.52 The amoralism of international law suggests that a political and legal habit of domination and injustice has already been set up in international relations. The habit is bi-​directional, in as much as it involves both the powerful States, which have assumed the role of the Master, and the weaker States, which have assumed the role of the Slave. And although in the Hegelian Master–​Slave dialectic the Slave gradually manages, through an interactive process of mutual recognition, to revert the unequal relation and attain ‘freedom of self-​consciousness’ on the basis of his conscious realization of the Master’s dependence on him,53 in international law it is simplistic, if not naïve, to suggest that the mere dependence of western States on third-​world countries for raw materials, for instance, is a sufficient condition for the replication of the analogy. The reason is that, even if we were to assume that mutual recognition, collective freedom, and the formulation of a mature collective consciousness are a priori feasible, such maturity should ultimately characterize both the Master and the Slave. However, international practice reveals that powerful States are simply not willing to recognize weaker States as ‘collective absolutes’ and true sovereign equals.54 Moreover, the international legal analogue of the ‘Slave’ is too abstract, for it corresponds to numerous and, often, politically unstable corporeal entities with deficient infrastructures. These entities are not only extremely difficult to become coordinated towards a Marxist abolition of dependencies and ‘subordinate relation(s) of difference’,55 but their very identity and physical existence face constant threats due to powerful western interests and authoritarian practices. Unlike the largely idealist character of the Hegelian dialectic, weaker States and peoples are dealing with real and imminent dangers and not with abstract thoughts and concepts, which they can presumably master and subsequently shape ‘at will’ in order to liberate themselves from the unequal relation—​as Hegel robustly

 Carty, Philosophy, p. 233.   The crucial passage that develops the famous dialectic is Herrschaft und Knechtschaft, namely Lordship and Bondage in Hegel, Phenomenology of Spirit, p. 520. 54  Thucydides was the first to introduce a theory on equality and justice in his History of the Peloponnesian War. In the Melian dialogue, the Athenians asked the Melians to surrender instead of them having a military encounter on the island of Melos. The Athenians pledged: ‘we both know that decisions about justice are made in human discussions only when both sides are under equal compulsion; but when one side is stronger, it gets as much as it can, and the weak must accept that’. However, as a commentator suggests, the Athenians did not suggest that ‘might makes right’. Instead, they argued that justice is relevant only where ‘both sides . . . feel the force of law’. At some later point the Athenians added: ‘Remember what is usually the best course: do not give way to equals, but have the right attitude towards your superiors and use moderation towards your inferiors.’ Thucydides, On Justice Power and Human Nature: Selections from the History of the Peloponnesian War (Indianapolis: Hackett Publishing Company, 1993), pp. 103, 108. 55  Carty, Philosophy, p. 223. 52 53

258    sources in the meta-history of international law asserts.56 In fact, even such Marxist approaches to international law as the principles of friendly relations and the right to self-​determination can become the object of diplomatic manipulation and, even where this is not the case, they ‘offer chaotic responses so far as they rest at the purely formal level’.57

IV.  Phenomenological Residuum and the Reversal of Hegel: The Essence of, and Need for, an Aristotelian Ethical Order The absence of a legislator on the international plane is a major source of anomie, for there is essentially no ‘teacher of ethical behaviour’ in international relations and no moral pressure whatsoever upon western States to assume this role. Not only does international law fail notoriously, but it also transmits ‘negative’ moral signals and counter-​incentives to States and governments, which are instructed—​by omission and the prevailing unequal paradigm of lawful coercion—​to behave unjustly in their international relations. States learn from international law that it is unproblematic, as part of their ordinary diplomatic routine, to impose their views and even harm others to serve their vital interests. As explained above, the transcendental phenomenological method assumes that one can arrive rationally to the essence of various phenomena by bracketing the epoché. This is how one can expose the primordial empirical data that had given rise to the concept of international law in general, and the idea of the sources of international law in particular. The bracketing suggests that there is a simple need to revisit the whole dimension of Legal Modernity in a rethink of the sources of Law in the international community. The social anthropology underlying the founder thinkers such as Grotius, Locke, Hobbes, Vattel, and Kant contains fundamental contradictions in their understandings of legal subjects, freedom, and consent. Legal justice cannot have its first or primary origin in pure will and consent, as legal positivism would wish. Ricoeur asserts that the concept of justice does not have a linguistic character from the very beginning.58 It is, therefore, by necessity that men are a priori capable of forming a common understanding of what is just, before this common  Hegel, Phenomenology of Spirit, p. 513.   57 Carty, Philosophy, p. 225.  Ricoeur, Hermeneutics, p. 104.

56 58

anthony carty and anna irene baka    259 understanding takes the form of words. This precise type of empathy is the ontological basis of Aristotle’s theory of justice. For Aristotle, justice belongs to the polis but does not arise from the polis; it derives from nature and exists by nature.59 Natural justice does not have the formal standing of law unless explicitly enacted or agreed upon. Nonetheless, natural justice should be both considered a standard for, and embodied in, the written and/​or customary law of the polis.60 Thomas Aquinas developed the Aristotelian theory of justice and suggested that one can disclose its concrete content through reason—​a thesis that strongly resembles Scheler’s aprioristic phenomenology of human values. The purpose of written laws or nomoi is precisely to reflect the justice that exists in nature. Nomoi should maintain peace, order, and the political harmony of the polis. Natural justice should also be reflected in unwritten laws such as in ‘customs, traditions and rituals’, namely all those ‘long-​performed patterns or habits of behaviour’ that form the customary law of the polis (ἄγραφοι νόμοι).61 Aristotle has also appealed to a concept that resembles jus gentium. There are both written and unwritten laws, Aristotle asserts, which are applicable to all communities (general law or δίκαιον κοινόν).62 Among the different types of laws and customs, general laws have a higher standing because they are based on our common political nature and follow the phenomenology of natural justice (τό κατά φύσιν).63 Natural justice is prior to law and custom. Law and custom are man-​made and can be at best formulated in accordance with (political) natural justice. In Greek, the word ἥθος (ithos), which means virtue, derives linguistically from the word ἕθος (ethos), which means habit. A man who commits a bad act does not automatically qualify as a bad person. A  man becomes a bad person when he becomes accustomed to committing bad acts out of habit and a certain acquired—​and eventually predisposed—​state of mind. Moral demerit is first attached to actions and then to persons. Aristotle’s philosophy of justice makes no prior assumptions about human nature and a person’s pre-​political ethical standing. In fact, Aristotle considers that people are born in a mode of ethical potentiality, for ‘it is clear that none of the moral virtues is engendered in us by nature  .  .  .  nature gives us the capacity to receive them, and this capacity is brought to maturity by habit’.64 In legal systems, the role of the legislator is to cultivate this mode of ethical potentiality with a view to inspire and establish justice as a virtuous habit among legal subjects. Laws are the instruments through which legal authorities ‘educate’. It is therefore crucial that laws and legal institutions, such as the theory of the sources, are harmonious with natural justice; that they clearly designate which acts 59   Donald Schroeder, ‘Aristotle on Law’, in Richard O. Brooks and James Bernard Murphy, eds, Aristotle and Modern Law (Aldershot Hants: Ashgate, 2003), p. 44. 60 61 62 63  ibid., p. 44.   ibid., pp. 40–​1.   ibid., pp. 42–​3.  ibid., p. 44. 64  Aristotle, The Nicomachean Ethics (Cambridge: Harvard University Press, 1926), p. 71.

260    sources in the meta-history of international law of deprivation are unjust; that they provide effective remedies; that they encourage the development of the perfect virtue, which is for legal subjects to be just towards each other.65 While good laws are the laws that effectively teach legal subjects to omit unjust acts, bad laws are those that undermine the process of ethical learning by failing to describe and condemn injustice. Unlike Hegel, who disdains humanity and renounces ethical edification as meaningless, boring, and unnatural, Aristotle trusts that a person is a moral being that can be guided, improved, and learn how to be just towards others; a moral being that is intellectually capable of grasping the content of justice; a moral being that can trust and be trusted. Two key features of the Aristotelian philosophy of justice are therefore the positive belief in the intellectual capacities of men and trustfulness. To be operable, societies have to lean on—​and also be able to secure—​a minimum of trust among their members. They must lean on positive inter-​subjective emotions. Even if we were to accept that the Hobbesean paralyzing fear of death is the leverage for the formation of human societies, it is not the crucial psychological element that ultimately holds them together. What holds societies together is a collective psychology of trust and, by extension, a collective sentiment of security that is premised on the narrow inter-​subjective expectation that the other person will follow the rules of the social game—​the first and most basic being that he will not intentionally injure the other(s). The natural human potentiality to develop this positive psychological attitude towards others is the quintessence of man’s political nature. It follows that social trustfulness is not premised on some prohibitive categorical imperative that isolates fear, but on a gradually formed positive emotion: the belief in the good intentions of others followed by the actual and unconditioned surrendering of oneself to his social world with the confidence that this world will not exterminate him. The unconditioned surrendering and social reliance assumes that men share a common ethical nature and are, in principle, able to espouse this positive presumption about man’s good nature, or at least his natural ability to become good and trustworthy. How this social trustfulness operates can be thoroughly explained on the basis of Aristotle’s concept of friendship as the most crucial foundation of healthy and viable societies, as well as Alfred Schütz’s model of social phenomenology.66 According to Aristotle, societies are created for the noble purpose of the well-​ being of their members. Moreover, they must be premised on a positive emotional basis in order to qualify as true communities and not merely a coincidental

65   Steven Heyman, ‘Aristotle on Political Justice’, in Brooks and Murphy, eds, Aristotle and Modern Law, 471–​88, 477. 66   See generally Alfred Schütz, The Phenomenology of the Social World (Evanston:  Northwestern University Press, 1967).

anthony carty and anna irene baka    261 aggregation of peoples or States. For Aristotle, this emotional basis, which is also the essential motive and crucial foundation of societies, is friendship: It is clear then that a State is not a mere society, having a common place, established for the prevention of crime and for the sake of exchange. These are conditions without which a State cannot exist; but all of them together do not constitute a State, which is a community of well-​being in families and aggregations of families, for the sake of a perfect and self-​sufficing life. Such a community can only be established among those who live in the same place and intermarry. Hence arise in cities family connections, brotherhoods, common sacrifices, amusements which draw men together. They are created by friendship, for friendship is the motive of society. The end is the good life, and these are the means towards it. And the State is the union of families and villages having for an end a perfect and self-​sufficing life, by which we mean a happy and honourable life. Our conclusion, then, is that political society exists for the sake of noble action, and not of mere companionship.67

One must interpret Aristotle’s narrow conceptualization of communities as unions of families and villages in terms of the historical context of the city-​States. A projection of Aristotle’s philosophy in international relations suggests that, although the immediacy of friendship is not feasible in modern States—​let alone in the massive, abstract context of an international community—​empathy, respect, and trustfulness are pre-​emotional elements which, according to Schütz’s model of social phenomenology, do not require immediacy; the creation and preservation of a positive predisposition towards others is feasible by virtue of the ideal projections that we tend to make regarding the emotional, moral, and psychological characteristics of others. Global trustfulness is therefore a moral victory that presupposes the sharing among States and peoples of a basic positive presumption regarding the morality of others: the conviction that fellow States and peoples will not attack them, or unreasonably act against them in any other way. For Schütz, human reality is understood as a rich social horizon with different grades of directness, anonymity, and abstraction, while social meaning is ascribed in retrospect, after the occurrence of an event upon which a motive-​oriented interpretation is imposed.68 Due to the lack of directness, men tend to construct ideal types with repetitive and homogeneous social characteristics.69 The more remote these ideal projections from our immediate experiences, the more abstract their characteristics. It follows that, within these imagined characteristics, people develop expectations regarding presumed courses of action; presumed motives; presumed moral attributes.70 Social trustfulness operates on the basis of this phenomenological model that magnifies the narrow, inter-​subjective expectation, and projects it at the level of society. However, the same way the harmonious and undisturbed life  Aristotle, Politics, Book III (Oxford: Clarendon Press, 1920), p. 119 (emphasis added).  Schütz, The Phenomenology of the Social World; Alfred Schütz, On Phenomenology and Social Relations: Selected Writings, ed. Welmut R. Wagner (Chicago:  The University of Chicago Press, 1970), p. xxiv. 69  Schütz, The Phenomenology of the Social World, p. 184.   70  ibid., p. 187. 67

68

262    sources in the meta-history of international law at the narrow inter-​subjective We-​level is magnified and projected as a generalized moral presumption regarding the good nature of men, so can the infliction of injury at the individual or collective level disrupt the ideal typology, challenge the validity of all positive moral presumptions, and subsequently develop a negative capillary wave of doubt and distrust. When doubt, insecurity, and distrust set in, all presumptions are challenged; the good intentions of others are questioned, and the surrendering of oneself to the social world is withheld. On a micro-​level, the concept of justice attempts to close the deranged relationship between the perpetrator and the victim. On a macro-​level, it purports to contain the social waves of distrust and protect the social belief/​positive presumption that the members of a specific society know how to behave justly towards each other and omit acts that can cause harm. In the case of collective entities, such as peoples and States, the imagined typologies reach their highest level of abstraction, and therefore the generalization/​magnification of negative moral characteristics due to acts of disturbance occurs instantly. In domestic law, the role of justice is to intervene, control, and ‘surgically’ contain the waves of distrust by addressing the triggering acts of disturbance that give rise to subsequent negative typologies regarding the nature of man. By analogy, the role of justice in international law is (or should be) to address acts of deprivation and loss that give rise to a series of individual and collective prejudices regarding the ethical nature of entire peoples and States as collective wholes/​anthropomorphic creatures.71 By promulgating the correction of inflicted wrongs and disturbances, the concept of justice does not only protect social trustfulness by ‘containing’ the derangement or loss of trust that ensues due to a specific act of disturbance, but, most importantly, preserves the subjective belief in the existence of a good nature (good potentiality) in men. Justice is only concerned with acts of moral worth precisely because it strives to correct events of social derangement without stigmatizing and prompting negative thoughts about one’s moral character. As the infliction of injury raises instant questions regarding one’s moral motives, justice performs an important ‘damage control’ function: it disinclines the members of a specific society from drawing negative conclusions regarding those motives and jeopardizing trust in other fellow citizens. It is now obvious that until natural justice effectively sinks in in international relations, no interstate trust is likely to be ever built up, and, instead of becoming a true global society of States, the so-​called international legal order will remain a random sum of self-​proclaimed entities, which only exist and interact in a brutal state of nature. This is our actual state of world society, riven with anxieties and insecurities, fanatical terrorism, total surveillance of domestic societies, frenzied controls of immigration, and ever more extreme doctrines of pre-​emptive

  According to Schütz, we have a tendency to ascribe anthropomorphic characteristics to collective entities; ibid., p. 199. 71

anthony carty and anna irene baka    263 attack, extrajudicial so-​called targeted killing, rendition—​none of which are recognized as mere symptoms of deprivation, brought about by concrete, specific acts of historical injustice of some towards others and so, with no hope of resolution. The failure of positivism is the failure of the Western State, with its roots in modern political liberalism.

Research Questions • What does the meta-​history of the sources of international law as legal ideas reveal for the dominant ideology of international law? • Is the dominant ideology of international law problematic or improvable and, if so, in what ways?

Selected Bibliography Aristotle, Politics (Oxford: Clarendon Press, 1920). Aristotle, The Nicomachean Ethics (Cambridge: Harvard University Press, 1926). Hegel, Georg Wilhelm Friedrich, Phänomenologie Des Geistes. Vorrede. Hegel’s Preface to the Phenomenology of Spirit, trans. Yirmiyahu Yovel (Princeton:  Princeton University Press, 2005). Husserl, Edmund, Ideas: General Introduction to Pure Phenomenology (Sydney: Allen and Unwin, 1931). Husserl, Edmund, The Shorter Logical Investigations (London: Routledge, 1970). Kant, Immanuel, The Metaphysics of Morals (Cambridge: Cambridge University Press, 1991). Ricoeur, Paul, The Conflict of Interpretations: Essays in Hermeneutics (London: Continuum Press, 1989). Ricoeur, Paul, Hermeneutics: Writings and Lectures (Cambridge: Polity, 2013). Schütz, Alfred, The Phenomenology of the Social World (Chicago: Northwestern University Press, 1967). Schütz, Alfred, On Phenomenology and Social Relations:  Selected Writings, ed. Welmut R. Wagner (Chicago: The University of Chicago Press, 1970).

Chapter 12

SOURCES IN THE META-​H ISTORY OF INTERNATIONAL LAW A LITTLE META-​T HEORY—​ PARADIGMS, ARTICLE 38, AND THE SOURCES OF INTERNATIONAL LAW

Mark Weston Janis

I. Introduction My subject is the meta-​theory—​that is, the theory about the theories—​of the sources of international law. For the purposes of this chapter, I  suggest that the notion of meta-​theory might be understood in Kuhnian terms by the ideas of ‘paradigm’ and ‘normal science’. Since possible theories about the sources of international law are so many and so various, any meta-​theory about them is bound to be rather general and, in important respects, incomplete. However, I hope that a little

mark weston janis   265 meta-​theory will be illuminating and helpful to those curious about international law and its sources. Let me first say something about meta-​theory and paradigms; secondly, in a Kuhnian fashion, offer some ordinary questions about the sources of international law that a paradigm ought to solve; thirdly, consider some early paradigms of the sources of international law; and, fourthly, explore Article 38 of the Statute of the International Court of Justice (ICJ),1 today’s paradigm for the sources of international law.

II.  Meta-​Theory and Paradigms Hayden White appears to have introduced the term ‘meta-​history’,2 but I  prefer to use the insights of Thomas Kuhn.3 Kuhn, in The Structure of Scientific Revolutions, observes that practitioners are ordinarily engaged in what might be perceived as ‘normal science’, i.e., ‘research firmly based upon one or more past scientific achievements, achievements that some particular scientific community acknowledges for a time as supplying the foundation for its further practice’.4 Such ‘normal science’ is grounded on commonly accepted intellectual paradigms. Paradigms establish and structure the work of the discipline. They not only define the subject, but also ask questions that need to be answered and provide the process used to explore the defined field. In his own words, Kuhn understands paradigms ‘to be universally recognized scientific achievements that for a time provide model problems and solutions to a community of practitioners’.5 An accepted paradigm is not necessarily better than any other, but, for a time, it seems to be more useful and is generally adopted. When a new paradigm conquers a field, it displays two characteristics. First, it ‘attract[s]‌ an enduring group of adherents away from competing modes’, and, secondly, it is ‘sufficiently open-​ended to leave all sorts of problems for the redefined group of practitioners to solve’.6 Although Kuhn developed his theory for the hard sciences, I feel it is helpful for us to employ it in softer subjects, including international law. It is not too difficult to introduce Kuhn’s opinion of the so-​called ‘social sciences’, a field that in my view nowadays includes international law. Kuhn, an historian of

  Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993).   Hayden White, Metahistory: The Historical Imagination in Nineteenth-​Century Europe (Baltimore & London: Johns Hopkins University Press, 1975), p. 45. 3  Thomas S. Kuhn, The Structure of Scientific Revolutions (Chicago:  The University of Chicago Press, 1962). 4  ibid., p. 10.   5 ibid., p. x.   6 ibid., p. 10. 1

2

266    sources in the meta-history of international law science, posits that ‘[p]‌erhaps science does not develop by the accumulation of individual discoveries and inventions’.7 He asserts that ‘[n]ormal science, the activity in which most scientists inevitably spend almost all of their time, is predicated on the assumption that the scientific community knows what the world is like’.8 However, sometimes normal science ‘goes astray’ and ‘can no longer evade anomalies’, and thus the profession is led to ‘a new basis for the practice of science’, i.e., there is a ‘scientific revolution’.9 ‘Normal science’ is based on achievements with two characteristics. First, normal science has ‘an enduring group of adherents’, and secondly, it is ‘sufficiently open-​ended to leave all sorts of problems for the redefined group of practitioners to resolve’. Such a phenomenon, Kuhn calls a ‘paradigm’:10 ‘[t]‌he study of paradigms . . . is what mainly prepares the student for membership in the particular scientific community with which he will later practice’.11 The commitment to certain paradigms and ‘the apparent consensus it produces are prerequisites for normal science, i.e., for the genesis and continuation of a particular research tradition’.12 Kuhn argues that certain sciences have developed paradigms over time: physics, electrical research, motion, statics, heat, chemistry, geology, and biology.13 However, it ‘remains an open question what parts of social science have yet acquired such paradigms at all’.14 ‘To be accepted as a paradigm, a theory must seem better than its competitors, but it need not, and in fact never does, explain all the facts with which it can be confronted.’15 Paradigms call forth ‘the formation of specialized journals, the foundation of specialists’ societies, and the claim for a special place in the curriculum’.16 Kuhn feels this is not true for ‘fields like medicine, technology, and law, of which the principal raison d’être is an external social need’.17 Once a paradigm is established, writing books is secondary: the ‘scientist who writes one is more likely to find his professional reputation impaired than enhanced’.18 Kuhn calls most of normal science ‘mop-​up work’.19 This work is almost entirely of three kinds: ‘determination of significant fact, matching of fact with theory, and articulation of theory’.20 To do anything else is ‘to desert the paradigm [and] to cease practicing the science it defined’.21 In general, the research of normal science does not ‘aim to produce major novelties, conceptual of phenomenal’.22 Instead, the work of a normal scientist is ‘puzzle solving’. What drives most scientists on is to become ‘an expert puzzle-​solver’.23 Within the paradigm, then, puzzle-​solving becomes ‘a highly cumulative enterprise, eminently successful in its aim, the steady extension of the scope and precision of scientific knowledge’.24

  ibid., p. 2.    8  ibid., p. 5.    9  ibid., p. 6.    10  ibid., p. 10.    11  ibid., pp. 10–1​1.   ibid., p. 11.    13  ibid., pp. 11–​15.    14  ibid., p. 15.    15  ibid., pp. 17–1​8. 16  ibid., p. 19.   17 ibid.   18 ibid., p. 20.   19 ibid., p. 24.   20 ibid., p. 34. 21 22 23 24  ibid.  ibid., p. 35.  ibid., p. 36.  ibid., p. 52. 7

12

mark weston janis   267

III.  Questions About the Sources of International Law Using Kuhn as our framework, let us ask when looking at our discipline, what have been the ordinary questions raised in discussions of the sources of international law. Here are a few. Need one begin with the very definition of ‘international law’? Is such a definition more or less the same as the definition of ‘the sources of international law’? What is the scope of either definition? Is it State-​centric? Are only States bound by the sources of international law? Are other actors included? International organizations? Private companies? Peoples? Non-​ governmental organizations? Individuals? May some sources bind some subjects and other sources oblige others? What legitimizes a source of international law? Is there a fundamental or a constitutional authoritative order? Is there a natural law of sources? Or must any source be grounded on the consent of sovereign States? Are some sources more authoritative than others? If so, how does one know? Are different sources differently legitimized? Are the sources of international law universal? Is international law a unified field or many fields, each with its own sources? Are there, for example, some sources for the United Nations and others for the European Union? Are there some sources for the United States and others for Russia? For France? For Brazil? Do the sources of international law change over time? Were there some sources for the Romans and others for the medieval Church? Were there some sources for Hugo Grotius and others for Emer de Vattel? Were there some sources in the nineteenth century and others in the twentieth and twenty-​first centuries? If the sources do change over time, which they inevitably do, how valuable is an old source in a new time? Is there a formal/​material distinction between types of sources? May a single material source—​e.g. a specific treaty—​be used to prove different rules within different formal sources—​e.g., a treaty norm, an evidence of a customary rule, a general principle of law? May some sources bind some actors, but not others? For example, does a treaty oblige only State parties, but does a fundamental norm bind non-​consenting States and even non-​State actors? Respecting legitimacy, are some sources—​e.g., treaties—​rooted only in State consent, while other sources—​e.g., jus cogens—​stem from non-​consensual bases, even from natural law? Is customary international law ever really generated by State consent? Is opinio juris a figment of our imagination? Are general principles of law rules drawn from State domestic practice or are they emanations of a basic necessary law? Is equity ever a source of international law, or is it merely a corrective of law? Is equity the same as an equitable principle of law? Who determines the legitimacy of sources?

268    sources in the meta-history of international law Respecting universality, if different legal systems use different versions of the sources of international law, does each source nevertheless display some universal features? Is there such a sufficient commonality of opinion about treaties as a formal source, that we can confidently say that pacta sunt servanda is a fundamental norm? Has pacta sunt servanda also been a commonality over time?

IV.  Early Paradigms of the Sources of International Law How do we go about answering such fundamental questions? International law has accepted at least three general groups of paradigms about its sources. The first are theological paradigms, where church scholars rooted the rules and authority of the law among nations in the Bible and in church commentary. While this kind of paradigm sufficed in the medieval Age of Faith, it is no longer generally accepted. As one modern scholar laments: ‘[g]‌one are the days when those who shaped modern international law, such as Suárez and Vitoria, were also highly trained theologians’.25 The second sort of paradigm was an easy step from the first. From the sixteenth century into the twentieth century, philosophical paradigms dominated ponderings about the sources of international law. Although lasting for a long time, philosophical paradigms are now almost completely irrelevant, whether they be based in naturalism, positivism, Marxism-​Leninism, or any other philosophy. All find little resonance in the modern legal practice of States or courts, though each may still exert a certain fascination for some academic international lawyers. An attractive, but nowadays unpersuasive example of a naturalist paradigm of sources is that of Vattel: Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, lived together in the state of nature, nations, or foreign States, are to be considered as so many free peoples living together in the state of nature. It is evident from the law of nature, that all men being naturally free and independent, they cannot lose these blessings without their own consent. Citizens cannot enjoy them fully and absolutely in any State, because they have surrendered a part of these privileges to the sovereign. But the body of the nation, the State, remains absolutely free and independent with respect to all men, or to foreign nations, while it does not voluntarily submit to them.

 William P. George, ‘Grotius, Theology, and International Law:  Overcoming Textbook Bias’, Journal of Law and Religion 14 (1999): 605–​31, 606. 25

mark weston janis   269 Men being subject to the laws of nature, and their union in civil society not being sufficient to free them from the obligation of observing these laws, since by this union they do not cease to be men; the entire nation, whose common will is only the result of the united wills of the citizens, remains subject to the laws of nature, and is obliged to respect them in all its proceedings. And since the law arises from the obligation, as we have just observed, the nation has also the same laws that nature has given to men, for the performance of their duty.26

Henry Wheaton, in the first English-​language text on international law, began his study with a survey of prominent jurists writing before him: Francisco de Victoria, Dominic Soto, Hugo Grotius, Samuel von Pufendorf, Cornelis van Bynkershoek, Christian von Wolff, and Emer de Vattel.27 Wheaton concluded that ‘[i]‌nternational Law, as understood among civilized nations, may be deduced as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent’.28 Consistent with his ‘mixed’ or ‘Grotian’ definition of the field, Wheaton identified six diversified ‘sources of international law’: (1) ‘text-​writers of authority’; (2) ‘treaties of peace, alliance, and commerce declaring, modifying or defining the pre-​existing international law’; (3) ‘ordinances of particular States, prescribing rules for the conduct of their commissioned cruisers and prize tribunals’; (4) ‘the adjudications of international tribunals, such as boards of arbitration and courts of prize’; (5) ‘written opinions of official jurists, given confidentially to their own governments’; and (6) the ‘history of the wars, negotiations, treaties of peace, and other transactions relating to the public intercourse of nations’.29 As an example of the old positivist theory of sources, look at Lassa Oppenheim’s 1905 classic, International Law, which held itself out as a ‘scientific approach’ to international law, claiming to be grounded on ‘facts’.30 Lamenting that ‘different writers on the Law of Nations disagree widely with regard to the kind and numbers of sources of this law’, Oppenheim posited that a source of law is best understood when ‘we follow [a]‌stream [of water] upwards until we come to the spot where it rises naturally from the ground’. Thus, is found ‘the source of the stream of water’. ‘Just as we see streams of water running over the surface of the earth, so we see, as it were, streams of rules running over the area of the law.’31

  Emer De Vattel, The Law of Nations or Principles of the Law of Nature Applied to the Conduct and Affairs of Sovereigns (New York: S. Campbell, 1796), pp. 49–​50. 27   Henry Wheaton, Elements of International Law (Philadelphia:  Carey, Lea & Blanchard, 1836), pp. 17–​32. 28 29  ibid., p. 20.   ibid., pp. 20–​3. 30   Lassa Oppenheim, International Law: A Treatise, Vol. I—​Peace (London: Longmans, Green and Co., 1905). 31   ibid., pp. 20–​1. 26

270    sources in the meta-history of international law As a ‘fact’, this source-​of-​a-​stream paradigm nowadays seems nonsense. I, for one, can neither see nor imagine what could possibly be ‘streams of rules running over the area of the law’. The Oppenheim paradigm of the sources of international law is at first glance useless, either for comprehending the term or for grasping its context. The metaphor seems based not on fact, but on pure misleading fiction. Yet, we know that Oppenheim thought his paradigm to be scientific and fact-​based. What was going on? Oppenheim was, in the words of Hayden White, engaged in a form of philosophical positivism which ‘identifie[d]‌their realism with the kind of comprehension of natural processes which the physical science provided’.32 Whatever its value, the Oppenheim philosophical positivistic ‘streams-​of-​water’ paradigm has little or no resonance in modern international legal practice.

V.  The Article 38 Paradigm Far and away the most important paradigm of the sources of international law today is the one that emerged in 1919–​1921 in Article 38 of the Statute of the Permanent Court of International Justice (PCIJ).33 Renewed in 1945 in the ICJ Statute, Article 38 has framed the vast majority of discussions of the sources of international law for nearly a century. As Hugh Thirlway puts it, Article 38 has cast ‘a long shadow’ well beyond the confines of the ICJ.34 It is useful to remember that Article 38’s enumeration of sources was neither necessary, nor exactly anticipated. As near to Article 38’s creation as the turn of the century, the English jurist Frederick Pollock could confidently proclaim a much more simple positivist theory about sources: ‘[t]‌he Law of Nations, or International Law, is a body or rules recognized as binding on civilized independent states in their dealings with one another and with one another’s subjects’.35 As with paradigms in any field, the collapse of an old paradigm and the emergence of a new one often come about when the old paradigm, the old normal science, fails to adequately answer new and unsettling questions. For the old philosophical sources paradigms of nineteenth-​and early twentieth-​century international law, their breakdown was triggered by the grotesque failures of European diplomacy  White, Metahistory, p. 45.   Statute of the Permanent Court of International Justice (Geneva, 13 December 1920, League of Nations Treaty Series, vol. 6, pp. 380–​413). 34   Hugh Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), p. 200. 35   Frederick Pollock, ‘The Sources of International Law’, Columbia Law Review 2 (1902): 511–​24, 511. 32 33

mark weston janis   271 that precipitated and prolonged the First World War. The old paradigmatic formulations about the field of international law were assaulted and largely found wanting. The United States’ principal spokesman for international law in the early twentieth century, Elihu Root, wrote in 1916 about the effects of World War I: The incidents of the great war now raging affect so seriously the very foundations of international law that there is for the moment but little satisfaction to the student of that science in discussing specific rules. Whether or not Sir Edward Carson went too far in his recent assertion that the law of nations has been destroyed, it is manifest that the structure has been rudely shaken. The barriers that statesmen and jurists have been constructing laboriously for three centuries to limit and direct the conduct of nations toward each other, in conformity to the standards of modern civilization, have proved too weak to confine the tremendous forces liberated by a conflict which involves almost the whole military power of the world and in which the destinies of nearly every civilized state outside the American continents are directly at stake.36

Two years later, in 1918, Charles G.  Fenwick, in writing about ‘The Sources of International Law’, began: ‘[i]‌nternational law has clearly reached a crisis in development’.37 Fenwick attributed the ‘failure of international law to respond to the demands made upon it’ to several causes, the crucial one being traditional international law’s reliance upon ‘informal agreement of the nations’, i.e., custom.38 He felt that an ‘international parliament’ and an ‘international court of arbitration’ would have to be instituted to frame and apply newly created legal rules, and be free of the arbitrary control of States.39 The present text of Article 38 was probably not obvious to any of the drafters of the PCIJ Statute. The British delegate to the 1920 eleven-​man Commission of Jurists appointed to prepare the draft PCIJ Statute was Lord Phillimore. He recalled that to respect ‘the law which the Court should administer’, he had ‘to fight the dangerous suggestions that if there was no definite rule of law, the Court should decide upon what it thought ought to be the law’.40 Just as troubling to Phillimore was finding ‘that Continental jurists were so afraid of injustice being done by following the strict letters of the Codes, that they ended up giving their judges a kind of power to do abstract justice, almost throwing their Codes to the winds’.41 This seems a rather harsh critique, especially coming from an English lawyer who might have been supposed to be more receptive to the traditional place of equity moderating and correcting the common law.

36  Elihu Root, ‘The Outlook for International Law’, American Journal of International Law 10 (1916): 1–​11, 1. 37   Charles G. Fenwick, ‘The Sources of International Law’, Michigan Law Review 16 (1918): 393–​401, 393. 38 39   ibid., pp. 394–​5.   ibid., pp. 400–​1. 40   Lord Phillimore, ‘Scheme for the Permanent Court of International Justice’, Transnational Grotius Society 6 (1920): 89–​98, 94. 41  ibid.

272    sources in the meta-history of international law PCIJ judge Antonio Sánchez de Bustamante wrote that the question of the law to be applied by the Court was ‘the subject of many discussions in conferences and in official and unofficial congresses’.42 The proposal that eventually evolved into Article 38 was submitted by Baron Descamps as ‘Article 31’: The following rules are to be applied by the judge in the solution of international disputes; they will be considered by him in the order given below; 1. Conventional international law whether general or special, being rules expressly adopted by the states; 2. International custom, being a practice between nations accepted by them as law; 3. The rules of international law as recognized by the legal conscience of civilized nations; 4. International jurisdiction as a means for the application and development of law.43

According to de Bustamante: The first two rules did not create any serious difficulty; but the discussion of the others took a wide range, covering the most important aspects of the question. Some of the jurists thought they involved compulsory jurisdiction, and they recalled that the International Prize Court, proposed at the Second Hague Conference of 1907, had been rejected in Great Britain, because no agreement had been reached on the general law to be applied, in the absence of a convention and of universal customary rules. As long as every country, it was said, has its own public international law on certain questions, international or national, it would never consent to submit (and the Monroe Doctrine was mentioned here) to a judicial authority that had power to apply in certain circumstances international law as it was understood by some other nation. Others discussed the possibility of converting the judges into legislators, and of having them, in their judgments, prepare codes for the whole world, which, in derogation of national sovereignty, would not have the sanction of the separate governments. Others, with a different point of view, asked whether the Court, in the absence of any treaty or custom, could refuse to decide a question, leaving the parties without a solution.44

In 1934 Manley Hudson discussed the differing opinions of the drafting Committee of Jurists more than a decade before. He reported that the Committee originally ‘proposed to make the order enumerated an order of successive application’.45 Hudson observed that ‘M. de Lapradelle preferred to say that the Court should “judge in accordance with law, justice, and equity”, to which M. Hagerup replied that “equity was a very vague concept . . . not always in accordance with justice”. ’46 Moreover, the ‘question was discussed whether the Court could ever refuse to decide because there was no law on the question before it, because of a non liquet’.47 Hudson concluded: ‘[t]‌he text is clumsily drafted, and the direction is not altogether clear. The four sub-​paragraphs seem to list sources of the law to be 42   Antonio Sánchez de Bustamante, The World Court, trans. Elizabeth F. Read (New York: Macmillan Co., 1925), p. 239. 43 44   ibid., pp. 239–​40.   ibid., p. 240. 45   Manley O. Hudson, The Permanent Court of International Justice (New  York:  Macmillan Co., 1936), p. 165. 46 47   ibid., pp. 165–​6.   ibid., p. 166.

mark weston janis   273 applied, rather than statements of the law itself, and the list of sources cannot be taken to be exhaustive.’48 Lord Phillimore observed with satisfaction that ultimately the Committee of Jurists expressed itself ‘with considerable care’, respecting what was by then numbered Article 35. Phillimore briefly explained that: Article 35 gives four sources of law: 1. Positive Treaty 2. Established international common law 4. Authoritative decisions and text-​books. And then to meet the fears of our foreign friends, we added: 3. The general principles of law recognized by civilized nations.49

More fully, draft Article 35 read: The Court shall, within the limits of its jurisdiction as defined in Article 34, apply in the order following: 1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting estates; 2. International custom, as evidence of a general practice, which is accepted as law; 3. The general principles of law recognized by civilized nations; 4. Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.50

The American James Brown Scott, who assisted Elihu Root, remarked that the Committee’s opinion on Article 35 was not unanimous: ‘[o]‌f necessity, the Japanese member was opposed to this article, as in his opinion the special agreement would contain such details of this kind as the parties agreed to in the compromis’.51 Another American international lawyer, John Bassett Moore, seemed unpersuaded at the time that draft Article 35/​final Article 38 was either descriptive or exhaustive of the sources of international law. He remarked in 1922, that ‘there is no precise and all-​inclusive general agreement as to what are in a strict sense rules of law’.52 Finally, in the ICJ Statute, Article 38 provides: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; 49   ibid., p. 523.   Phillimore, ‘Scheme for the Permanent Court’, p. 94.   James Brown Scott, ‘The Draft Scheme of the Permanent Court of International Justice, with a Review’, International Conciliation No. 157 (1920): 509–​43, 538. 51  ibid. 52   John Bassett Moore, ‘The Organization of the Permanent Court of International Justice’, Columbia Law Review 22 (1922): 497–​526, 510. 48 50

274    sources in the meta-history of international law (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex æquo et bono, if the parties agree thereto.

That Article 38 might mark a new model for the sources of international law was very soon acknowledged. By 1926, Pollock opined that Article 38 made ‘very good sense’.53 The international arbitrator Jackson Ralston wrote in 1926 how earlier models were no longer suitable: A changing conception of the foundations of international law is indicated in the remarks of the General Claims Commission now [1926] settling differences between the United States and Mexico. It says: The law of nature may have been helpful, some three centuries ago, to build up a new law of nations, and the conception of inalienable rights of men and nations may have exercised a salutary influence, some one hundred and fifty years ago, on the development of modern democracy on both sides of the ocean, but they have failed as a durable foundation of either municipal or international law, and cannot be used in the present day as substitutes for positive municipal law, on the one hand, and for positive international law, as recognized by nations and governments through their acts and statements, on the other hand.54

There is debate about Article 38’s hierarchy of sources. Does treaty always trump custom? Does either custom or general principles of law include fundamental norms which are held to better any other formal or material source, or does Article 38 simply miss out on fundamental norms as jus cogens? Must Article 38 then be supplemented? For fundamental norms? For natural law? As John Noyes argues, there are and ought to be ‘continuing efforts to mediate between modern versions of natural law and consensualism in international law’.55 How well does the Article 38 paradigm address these lingering questions? The Court itself has been willing to add to its available sources. Sir Gerald Fitzmaurice, himself an ICJ judge, catalogued the Court’s use of sources in his magisterial volumes reviewing the Court’s law and procedure 1947–​1959, and gave as his first example: §I. Considerations of Humanity. In the Corfu case (Merits) [[1949] ICJ Rep 4, 22], the Court gave as one of the grounds creating a legal obligation for a State to act in a certain way, the ‘elementary considerations of humanity’.56

  Frederick Pollock, ‘The Permanent Court of International Justice’, British Yearbook of International Law 7 (1926): 135–​40, 136. 54   Jackson H. Ralston, The Law and Procedure of International Tribunals, rev. edn (Stanford: Stanford University Press, 1926), p. 4, citing North American Dredging Co. v Mexico, Docket 1223. 55  John Noyes, ‘Book Review:  Thirlway, The Sources of International Law’, American Journal of International Law 109 (2015): 455–​61. 56  Sir Gerald Fitzmaurice, The Law and Proced‑ure of the International Court of Justice, vol. I (Cambridge: Grotius Publications, 1986), p. 17. 53

mark weston janis   275 However, as Maurice Mendelson has remarked, the ‘ICJ has not attempted to elaborate a theory of sources of international law or attempted to catalogue them’.57 This may be due to the fact that Article 38 is explicitly directed to the ICJ itself.58 Indeed, no other institution or group of international lawyers is directly instructed by Article 38. G. J. H. van Hoof, in his Rethinking the Sources of International Law, devotes much of his study to ‘[t]‌he Traditional Sources of International Law’.59 He explains that ‘traditional sources is meant to designate those phenomena which the International Court of Justice, according to Article 38 (1) of the Statute, is to apply in deciding the disputes submitted to it’.60 Van Hoof accepts that Article 38 (1) ‘is still a good starting point but not the final word as far as the doctrine of sources is concerned’.61 Similarly, Jean d’Aspremont identifies the ‘dominant’ theory about the sources of international law to ordain formalism as a law-​ascertainment mechanism.62 He submits that ‘most scholarly controversies’ in the twentieth century about the topic ‘have revolved around the ambit, meaning, and authority of the list of admitted sources and the exhaustive character of Article 38 of the Statute of the Permanent Court of International Justice and later of the International Court of Justice, being a problem which, itself, is simply a list of the applicable law and which has never purported to exhaust the list of sources of international law’.63 In his magisterial commentary on Article 38, Alain Pellet submits that if ‘one accepts the simplest—​and the most operational, at least for the purpose of the Court’s function—​definition of a source of law, there can be no doubt that the list of Article 38 is incomplete’.64 Pellet concludes that Article 38 is ‘a rather fortunate midpoint between a mechanical application of the rules of law (a difficult task indeed in the international sphere) and the dangers of the gouvernement des juges’.65 He feels that Article 38 displays ‘elegance, flexibility and conciseness’.66 Given all this, why does Article 38 play the crucial theoretical role that it does? Possible answers are several. First, Article 38 is close to being a universal norm, embodied in a treaty obliging virtually every sovereign State. The universality of Article 38 makes it very appealing to any theory-​maker. Secondly, Article 38 is nicely numbered, implicitly for the PCIJ, explicitly for the ICJ: (1) (a) international

57   Maurice Mendelson, ‘The International Court of Justice and the Sources of International Law’, in Vaughan Lowe and Malgosia Fitzmaurice, eds, Fifty Years at the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Grotius Publications, 1996), 63–​89, 63. 58  ibid., p. 64. 59   G. J. H. van Hoof, Rethinking the Sources of International Law (Boston: Kluwer, 1983), pp. 83–​191. 60 61  ibid., p. 82.  ibid. 62   Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011), p. 71. 63  ibid. 64   Alain Pellet, ‘Article 38’, in Andreas Zimmerman, Christian Tomuschat, and Karin Oellers-​Frahm, eds, The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2006), 677–​792, 705. 65  ibid., p. 680.   66 ibid.

276    sources in the meta-history of international law conventions; (b) international custom; (c) general principles of law; (d) subsidiary means: judicial decisions and opinions of publicists; (2) by consent of the parties: ex aequo et bono. What an attractive enumeration. Thirdly, Article 38 has been construed often and persuasively by as universal a court as we have had—​the PCIJ and then the ICJ. And fourthly, because of its universality, its clarity, and its jurisprudence, Article 38 is taught over and over again by professors to law students all over the world and has been so taught for nearly a century. It has been a long time since any would-​be international lawyer has escaped learning about Article 38. Of course, no paradigm is forever, but it is hard to see that the Article 38 paradigm is at all crumbling. Instead, it serves as the basic building block for international law and international lawyers everywhere.

Research Questions • What can meta-​ theory contribute to an understanding of the sources of international law? • Does Kuhnian meta-​theory and the concepts of ‘paradigm’ and ‘normal science’ help explain the primacy of Article 38 of the ICJ Statute?

Selected Bibliography Aspremont, Jean d’, Formalism and the Sources of International Law. A  Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). George, William P., ‘Grotius, Theology, and International Law: Overcoming Textbook Bias’, Journal of Law and Religion 14 (1999): 605–​31. Janis, Mark Weston, International Law, 7th edn (New York: Wolters Kluwer, 2016). Kuhn, Thomas S., The Structure of Scientific Revolutions (Chicago: The University of Chicago Press, 1962). Pollock, Frederick, ‘The Sources of International Law’, Columbia Law Review 2 (1902): 511–​24. Thirlway, Hugh, The Sources of International Law (Oxford: Oxford University Press, 2014). White, Hayden, Metahistory:  The Historical Imagination in Nineteenth-​Century Europe (Baltimore: Johns Hopkins University Press, 1975).

Section  V I I

LEGAL HISTORY AS A SOURCE OF INTERNATIONAL LAW

Chapter 13

LEGAL HISTORY AS A SOURCE OF INTERNATIONAL LAW FROM CLASSICAL TO MODERN INTERNATIONAL LAW

Robert Kolb

I. Introduction In the contemporary perspective of international law, it may seem odd to speak of history as a ‘source’ of international law. Article 38 of the Statute of the International Court of Justice (ICJ) is usually taken as providing an authoritative expression of the sources of international law,1 and we shall here follow this conception. Nowhere in Article 38 would one find a reference to history. In the continental legal science, history would qualify as a ‘material source’ of international law, i.e. as a sociological fact explaining why and in relation to what needs the legislator has adopted a particular piece of legislation (in international law a particular treaty or a customary   Statute of the International Court of Justice (San Francisco, 26 June 1945, 33 UNTS 993).

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280    legal history as a source rule). Thus, for example, history may evidence the ill feeling of people towards a certain problem, which then leads to the adoption of legal norms to curb it; for example, this problem may be a high inflation rate. Our conception of the day, dominated by the positive law approach, is that the true law will be embodied only in the ‘formal source’, flowing from the material one. The material source provides the reason to act for the adoption of the law, the formal source expresses the legal norms adopted.2 Politics and sociology are in the first box; law is only in the second. In this perspective, history is thus perhaps a source of international law, but then it is only a material source. For positivist lawyers, this may be no legal source at all, in the sense that it does not express any legal norms directly applicable. In the broadest sense, history may, however, be qualified as a source of the law. For example, a material source may be taken account of when interpreting the law. It has therefore some corollary legal effects, albeit of a minor nature. Whether to link such legal effects to the concept of source or whether to keep them in the sole realm of the art of interpreting the law is essentially a question of taste and of legal nomenclature. This dichotomy between formal and material sources has become sharper in the mainstream schools since legal positivism progressively dominated the floor. The truth is, however, that history has for a long time been a ‘source’ of international law in a much larger sense than it is today, or than is perceived today. At the time of natural law doctrines, even in the nineteenth century, the references to historical rather than to dogmatic arguments were extensive. Moreover, even at present, history displays some legal roles. It does so by way of a series of positive legal institutions, which refer to historical aspects interrelated to the law. Thus, for example, in the context of territory and delimitation, the legal concept of ‘historic rights’, ‘historic waters’, or ‘historic bays’ has a long-​standing legal pedigree. Finally, history as a material fact also has some structural effects on a legal order, which after all is but the expression of the social forces (and not only the dominant ones) in a society. These effects may to some extent be linked to the idea of a source and to some extent go further than that concept. Finally, history has also a distinctive effect on the culture and mental state of the legal operator. This fact must also be taken into account, all the more since the law is cast in a particular mode of being: it is essentially what is believed to be the law at a certain moment of time.3 The aspects mentioned in the preceding paragraph lead naturally to the tripartition of this short contribution. First, the question of history as a source of international law is cast in its historical context. Classical international law, with its much greater emphasis on history as a factor of account, stands to by analysed, and reasons for the differences with today are ventured into. Secondly, there is a section   On these notions, see Jean Salmon, ed., Dictionnaire de droit international public (Brussels: Bruylant, 2001), p. 1041. 3   Carlo Focarelli, International Law as a Social Construct (Oxford: Oxford University Press, 2012), pp. 2, 55, etc. 2

robert kolb   281 devoted to the main expressions of ‘history as a source’ in the positive international law of today. Thirdly, the structural effects of historical facts and arguments on the interpreter are briefly considered. The distance to the concept of sources increases here, but the questions posed remain somewhat linked to the sources. Before plunging in medias res, it may be necessary to briefly consider two definitional points. First, what is history? Secondly, what are sources of the law? The first is not a legal concept; the second is.

1. History As to the first question, the point is not so much to define in detail as to pinpoint what is legally relevant. History is the knowledge of the relation between a series of events and realities, which reflect the evolution of a social group. It is also the literary analysis of these events and realities. History is therefore essentially turned towards the past, but addressed towards the present. It tries to explain the social forces founding the reality of today. For the legal source debate, there is an important distinction between history as a series of facts and legal history as an account of the legally relevant aspects of history. The first aspect relates to a social fact, the second to an attempt at scientific explanation. Both aspects may be considered sources of the law to a different degree. The first can give directly rise to certain legal institutions, which will refer to certain historical facts. These facts will thereby become legal facts (Rechtstatsachen, faits juridiques, fatti giuridici) for that legal order, and thus be relevant in the application of a legal norm. The relevant norm here refers to that fact by attaching to it a distinct legal consequence. This is the case, for example, for the abovementioned institution of ‘historic waters’. The second does not give rise to any legal fact. It will be a source of enlightenment and information for the lawyer, which may be useful for interpretation. Thus, for example, if in a dispute the inter-​ temporal law indicates that the applicable law is the one of ‘colonial protectorates’ in the nineteenth century, the legal operator will have to plunge into legal historical literature, in which the relevant institution is explained and illustrated. The operator will probably not limit himself or herself to reading legal literature of a dogmatic nature, i.e. doctrinal writings on such protectorates. He or she will feel some need to spot the question more generally or more critically, by trying to understand the underlying nature and the interests behind the institution of colonial protectorates. On this account, he or she will find enlightening aspects in general historical literature. Legal historical literature may be particularly useful, since the historian-​ lawyer will present the historical aspects which are most relevant for legal analysis. Overall, history as a fact is a source of the law on a secondary plane, in that it gives rise to ‘legal facts’ when a norm refers to it. Conversely, historical writings may be

282    legal history as a source auxiliary sources for the better understanding of the applicable law, in the vein of Article 38 (1) (d) of the ICJ Statute.

2. Sources As to the second question, the term ‘sources’ refers to the law-​creating agencies and/​or the places where the law can be found (channels of legislation and pedigreed legal expressions).4 There is thus an active and a passive aspect in the sources: there are ways by which the legal norms are made, and there are places where these norms appear, or can be found. In most cases, the two notions are but the two sides of the coin: the legislator makes the norms and then these norms can be found in the end-​ product. But there are situations where this interrelation breaks up: general principles of law, as mentioned in Article 38 (1) (c) of the ICJ Statute, are not law made in any meaningful sense of the word, but are certainly law found by comparison of municipal legal systems. Among the many further distinctions, at least two may be useful for our present purposes. First, there are, as already mentioned, material sources and formal sources of the law. Material sources are all the elements and facts of life which influence and explain the creation of legal norms: for example, social facts, social values, legal conscience, political beliefs, religious motives, etc. Formal sources are the law-​creating agencies or processes, as well as the places where the law can be found. Material sources are relevant for the law (e.g. for its interpretation) but are not law in themselves. They are a source only in the sense that they explain why a legal norm exists and why it is such as it is. If considering the question closely, it can be seen that material sources are fundamentally historical facts. History is the great material source of the law. More precisely, certain historical facts are material sources of the law, when they explain the law. The movement is here the reverse with respect to history as a ‘legal fact’: in this latter category, the legal norm is first and refers to a historical fact; conversely, with the material sources of the law, the historical fact is first and explains the legal norm. The second relevant distinction is between the main sources and the auxiliary sources of the law. The first are the formal sources as we have defined them, leading to the adoption of applicable and operational legal norms.5 The second are also called, in the German legal science, Rechtserkenntnisquellen or 4   For an account of the main definitional points, see e.g., Clive Parry, The Sources and Evidences of International Law (Manchester:  Manchester University Press, 1965); Vladimir D. Degan, Sources of International Law (The Hague: Martinus Nijhoff, 1997). See also Alfred Verdross and Bruno Simma, Universelles Völkerrecht, 3rd edn (Berlin: Duncker & Humblot, 1984), pp. 321 ff. 5   On the sense of the words norms and normative, see Gérard Cornu, Vocabulaire juridique, 9th edn (Paris: Presses universitaires de France, 2011), pp. 685–​6.

robert kolb   283 Rechtsfeststellungsquellen. These are facts that aid the interpreter or operator to find the applicable legal norms. Auxiliary sources are not normative in themselves. They are not legal norms, which are of direct application. The auxiliary source exhausts itself in a serving function, which is to aid in determining the existence and scope of legal norms. Article 38 (1)  (d) of the ICJ Statute contains a classic example of such a source. It reads as follows: ‘[the Court shall apply] subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law’ (italics added). The words ‘for the determination of the rules of law’ are of the essence here. As is apparent, history can easily fit into the category of an auxiliary source. It can to some extent help in the determination of the rules of law or in their proper interpretation. In this sense, history is at once a weaker and a stronger auxiliary source than the publicists and the precedents mentioned in the quoted letter (d). It is weaker since the publicists and precedents are already shrouded in the legal modus: it is legal literature and legal precedents. History is not yet put in any legal modus. It is stronger since history is the great and primary material source. It is always present in interpretive legal argument: there is the past (when the norm was adopted) and there is the present (when the norm must be applied). The bridge between the two planes is a proper understanding of historical facts, evolutions, and present needs.

II.  Earlier Conceptions of the Role of History as a Source of Law and of International Law In a variety of past legal orders, the principle of tradition and authority was predominant. It meant that the ‘old law’, as received and inherited in age-​old processes, enjoyed a pivotal importance. The task of the legal interpreter was to look for the rule as it had been in the past (be it Roman Law, immemorial custom, leges patrum, etc.) and limit himself to apply or develop this rule.6 In many of these societies, the traditional or inherited law had precedence over any new law made in the hands of a changing, shifting, or arrogant legislator. Consequently, any ‘departing legislation’ of the latter was seen to be violating the acquired rights under the old rule. The overall underlying conception was that the law comes before the State; and that   See Fritz Kern, Recht und Verfassung im Mittelalter (Basel: Benno Schwabe, 1953).

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284    legal history as a source the vested rights come before the new rights. Notice that the point was not one of natural law but one of positive law, and more precisely of legislation: the sovereign is not free to alter the law at will, since he must respect the rights of his subjects. Thus, in such societies, the rule lex posterior derogat priori did not generally apply; the opposite rule had a considerable scope of application: lex posterior non derogat legi priori. Many contemporary authors consider the former of these rules as being obvious and necessary:7 if it did not apply, the law would be stalemated and could not be adapted to the needs of time; it would lose social relevance; most pieces of legislation would become a useless exercise, since the older law would in any case prevail.8 But this was manifestly not the perspective in the old societies here under discussion. The point there was that the older title had precedence as an expression of adequate protection under the law. This ‘acquired rights’ thinking is typical of the stratified state (états, Stände) of the European Middle Ages. It was especially strong in societies having a contractual rather than an absolute conception of power. It also explains that these societies could not develop sufficiently to face new needs; it is also understandable that with the rise of the modern economy such tetanizing legal conceptions had to be abandoned. The position was also manifestly different in societies developing towards an absolute conception of power, such as the late Roman society. The Emperor there became a lex animata in terris (‘living law on Earth’) and was vested with imperatoria majestas (‘Imperial majesty’). He could dispose of the law as he thought fit. Thus, the law concentrated essentially around his will (voluntas principis). This development is one of the roots of voluntarism in the later Western legal thinking.9 The overall result of these contrary tendencies (absolutism and contractualism) is a dual conception of the law. It crystallized at the end of the Middle Ages. In some societies, the conception of the all-​might of the sovereign came to bear. In others, the conception of the acquired rights prevailed. And in yet others, both tendencies to some extent married, for example in England, with the great powers recognized to a progressively sovereign Parliament and yet the predominance of the common law and its precedents, i.e. the rule of law, protected by the judges.10 This state of affairs explains a certain inherited sensitivity of the lawyers for ‘historical titles’ and ‘historical arguments’. In the formative stage of modern international law, one of the main sources of the newly constructed body of the law of nations was history. This approach   See e.g., Norberto Bobbio, Teoria generale del diritto (Turin: G. Giappicelli, 1993), pp. 218–​19.   E.g., the older document embodying rights would prevail:  ut praecepta facta, quae anteriora essent, firmiora et stabiliora essent. Hence also the perpetual tendency to fake documents and dates on the documents. See Kern, Recht und Verfassung, pp. 30 ff. 9   See Francesco Calasso, Medio Evo del diritto, vol. I (Milano: A. Giuffrè, 1954), pp. 37 ff. 10   A good chapter on that issue can be found in Adrianno Cavanna, Storia del diritto moderno in Europa, vol. I (Milano: A. Giuffrè, 1982), pp. 479 ff., 485, 541 ff., 567 ff., with many references to English legal literature. 7

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robert kolb   285 is particularly visible with Hugo Grotius, who, with some exaggeration, has been called the ‘father’ of modern international law. It is known that Grotius did not construct his system of public international law merely on the basis of the practice of States (i.e. of voluntary law). He also ventured into the rational or natural law of nations, i.e. the rules as they should be, considering aspects of justice and righteousness, as well as the structure of international relations. To limit the ambit of purely personal speculation, Grotius thought it appropriate, as was current in the seventeenth century, to buttress his arguments with historical precedents, especially from the Roman classical times, and even with the opinion of poets (a common trait for the Renaissance).11 Old examples are considered to bear particular weight of evidence on what was always done, and also to provide a solid basis for constructions based on justice and natural law. Moreover, Greek and Roman times were considered ‘better times’ than the present ones. From there, the best examples could be taken. For Grotius, the old quotations and examples are also a way to participate to the humanistic movement, which was under way during this time, and to which he was attached. As an example, we may consider the question as to whether rape is permissible during warfare.12 Grotius takes up this question because it was controversial: for some, the rape of women in warfare was permissible, for others it was not.13 Grotius concludes that the better arguments are for the prohibitory view, but that this view is only the practice of the ‘better nations’, and not of all nations. Consequently, rape is an act prohibited by natural law but not by the positive jus gentium of all nations. He then goes on to buttress the view of what is the better practice by trying to link it up with the ‘best precedents’, flowing from almost Saturnine old times. Grotius thus quotes Marcellus’ statements before capturing Syracuse; Scipio’s declarations in Livy; Diodorus Siculus’ utterances on the soldiers of Agathocles; Arrian and Plutarch; and also Hebraic Law. Such a scheme of argument can be found in many places of the De jure belli ac pacis. Grotius is not the sole author having recourse to such historical arguments as a source of international legal rules, be it of natural or of positive law. All the classics of international law, down to Emer de Vattel, use such arguments of ‘authority’ vested in tradition (and thus linked to history). Thus, for example, one finds a host of such references in Richard Zouche, Iuris et iudicii fecialis, sive, iuris inter gentes, et queastionum de eodem explicatio (1650), twenty-​five years after the edition of the

11   Peter Haggenmacher, Grotius et la doctrine de guerre juste (Paris: Presses universitaires de France, 1983), p. 4; Jules Basdevant, ‘Hugo Grotius’, in Antoine Pillet, ed., Les fondateurs du droit international (Paris: Panthéon-​Assas, 2014), 153–​97, 175–​6. 12   As to this question in general, see Antonio Antonioni, ‘Le viol et le droit de la guerre dans la doctrine: de Vitoria à Vattel’, Journal of the History of International Law 4 (2002): 100–​14. 13   Hugo Grotius, De jure belli ac pacis libri tres (The Classics of International Law) (Washington: Carnegie, 1913), lib. III, ch. IV, § XIX.

286    legal history as a source De jure belli ac pacis. As an example, one may mention the chapter on the ownership relating to territories and other assets.14 The number of Hebraic, Roman, and Greek quotations on these pages can hardly be counted. By the same token, Johann W. Textor quotes historical authorities all over his monograph, Synopsis juris gentium (1680), for example in the chapter on ‘Just Causes of War’.15 One reads there of Cannaan and Israel; of Gauls and Hannibal; of the Punic Wars; of Turks and Saracens; of the King of Amorites; of the Peloponnesian War; and quotes of the Digest are also offered. In Vattel, these references have become more sparse, but they are still quite numerous. Among the most famous ones are the old precedents on fraudulent interpretation of treaties, incompatible with the principle of good faith. Vattel quotes Mahomet and the Turcs, Tamerlan, but also Cleomen, Pericles, and others.16 Overall, references to history had a triple function in these times. First, they corresponded to the humanistic taste of the time. Protestant authors especially liked to refer to classical precedents, jumping over the ‘dark times’ of the scholastic Middle Ages. The classical precedents were a commonly accepted topos of the time, such as judicial and arbitral precedents are today. Secondly, the reference to historic facts allowed an argument of authority to be displayed. The basic idea of the times was still that law is ‘discovered’ rather than deliberately ‘made’. The discovery was all the easier if there was an unbroken thread of tradition since the classical times, i.e. if precedents could be found already in remote eras. Thirdly, the body of international law was still in the formative stage. There were many uncertainties and gaps in it; State practice had not yet filled them up. Therefore, the construction of a system of the law of nations was at that time mainly a doctrinal and constructive enterprise.17 For these constructions of a fully fledged system of the law of nations (Grotius was the first to seek such a comprehensive treatise, since in his Prolegomena he criticizes his predecessors for not having written ‘complete treatises’),18 some degree of objective guidance could be found only in precedent. Precedent was rooted in history. The present was considered to be too moving and shifting (for Grotius: the thirty years’ war) to be able to offer a firm ground for a doctrinal edifice.

  Richard Zouche, Iuris et iudicii fecialis, sive, iuris inter gentes, et quaestionum de eodem explicatio (The Classics of International Law) (Washington: Carnegie, 1911), Part I, Section III. 15   Johann W. Textor, Synopsis Iuris Gentium (The Classics of International Law) (Washington: Carnegie, 1916), ch. XVII. 16   Emer de Vattel, Le droit des gens ou principes de la loi naturelle (1758), liv. II, ch. XVII, §§ 273, 280. 17   Alfred Verdross, ‘Die allgemeinen Rechtsgrundsätze als Völkerrechtsquelle: Zugleich ein Beitrag zum Problem der Grundnorm des positiven Völkerrechts’, in Alfred Verdross, ed., Gesellschaft, Staat und Recht: Untersuchungen zur reinen Rechtslehre: Festschrift Hans Kelsen zum 50. Geburtstag gewidmet (Frankfurt: Sauer & Auvermann, 1931), 354–​65. 18  Grotius, De jure belli ac pacis, §§ 36–​8. 14

robert kolb   287

III.  Later Conceptions on the Role of History as a Source of International Law The strong reference to history as a source of scientific international law constructions did not disappear in the nineteenth century.19 However, with the progress of positivistic legal thinking,20 and the concomitant strengthening of State organization, the reference to history progressively shrank to a mere mention, whereas the effectively applied legal order was dominated by what the nations actually did in their practice (customary law and treaties).21 However, in the textbooks on international law, history as a source of the law continued to loom large. There is quite often here, as elsewhere, a time-​lag between the weight of tradition and the establishment of new ideas. Some examples are quoted here. With Sir Robert Phillimore, one remains bluntly in the Grotian tradition:  ‘[in the usage as source of international law], History, unless the term be too general, necessarily takes the first place. It supplies, according to Grotius, both examples and authoritative judgments . . . ’.22 Sir Sherston Baker writes: ‘[t]‌he history of transactions relating to the intercourse of States, both in peace and in war, is one of the most faithful sources of international law’.23 Georg Friedrich von Martens closes his chapter of the sources of international law with the following sentence: ‘[e]nfin l’histoire et la science du droit international servent à faire connaître le vrai sens des traités existants et des usages internationaux. Elles permettent de distinguer nettement le sentiment du droit qui existe chez les nations et qui se trouve exprimé dans les traités et dans les coutumes. Aussi appartiennent-​elles sans contredit aux

19   Moreover, in domestic law, there was the controversy over the role of codification or customary development of the law as expressed by Friedrich Karl von Savigny’s Historical School. The point hinged on the main paradigm towards which the law should be geared: codification drawing from the universal ratio scripta (Roman Law, Canon Law, Natural Law); or non-​organic growth of the law according to the different cultures and peoples (Volksgeist). It stands to reason that the latter linked the law to a local historical dimension, whereas the former tended to abstract the law from its local historical ties. See Friedrich Karl von Savigny, System des heutigen römischen Rechts, t. I (Berlin: Veit und comp., 1840). On the Historical school, see e.g., Walter Wilhelm, Zur juristischen Methodenlehre im 19 Jahrhundert (Frankfurt am Main: Klostermann, 1958), and Guido Fassò, Storia della filosofia del diritto, vol. III (Bari: Laterza, 2001), pp. 40 ff., with many further references in his bibliography. 20   There are obviously many positivistic legal theories and it cannot be the point here to engage in their discussion. See e.g., Walter Ott, Der Rechtspositivismus (Berlin: Duncker & Humblot, 1976). 21   On the shifts during the nineteenth century, see the recent book by Emanuelle Jouannet, Le droit international libéral-​providence (Bruxelles: Bruylant, 2011), pp. 131 ff. 22   Robert Phillimore, Commentaries upon International Law, vol. I, 3rd edn (London: Butterworths, 1879), p. 45, § XLVIII. 23   Sherston Baker, First Steps in International Law (London: Kegan, 1899), p. 19.

288    legal history as a source sources du droit international.’24 In the influential treatise of Charles Calvo, one reads: ‘l’histoire . . . est encore une des grandes sources du droit international’.25 Paul Pradier-​Fodéré writes three pages in order to insist on the importance of history as a source of international law: history is the dimension where the relevant events for public international law take place and from where the legal rules can be seized and devised.26 In Pasquale Fiore, one finds the sentence:  ‘[l]a seconda fonte alla quale deve attingere la scienza nostra [international law] è la storia’.27 Luis Gestoso y Acosta writes on his part: ‘[l]a historia de las guerras, tratados de alianza, paz y comercio, así como de las negociationes políticas entre los Estados, es una fuente copiosísima, aunque accessoria, del Derecho internacional . . . porque ni los usos y costumbres internacionales, ni los tratados públicos pueden ser bien conocidos si se ignoran sus precedentes históricos . . .’.28 Sometimes, it is cautioned that history is a source of international law, summing up all other secondary sources (precedents and illustrations), but that it can be taken as such only when it remains consonant with reason and justice. The reason given is that history also abounds of ‘injustice, of abuse of power, of destruction of rights’.29 Even in 1914, a text-​book writer could assign a place of pride in the sources of international law to ‘customs and rules of peoples and nations in the early days’.30 It is probably not useful to pile up further examples of such quotes. Overall, history is here not considered a source that produces rules of international law, but as the great uniting dimension between treaties and customary rules, which history both explains and directs. This has to do with the fact that international law, as a horizontal or decentralized legal system, is not based on static sources, adopted as pieces of legislation such as codes, but on mobile or precisely ‘historic’ sources, of which customary international law is the most prominent example. To properly understand the customary rule, one must be able to put it in its historic context and to appreciate the growth of acts and precedents geared towards a certain aim.31 History thus progressively moves towards an ‘auxiliary source’ of the law, necessary for the proper understanding of the object of international law, as well as for a proper intelligence of its main sources, i.e. treaties and customary rules. It can also   Georg Friedrich von Martens, Traité de droit international, tome I (Paris: Marescquains, 1883), p. 254. 25   Charles Calvo, Le droit international théorique et pratique, 5th edn (Paris:  Guillaumin et cie., 1896), p. 160. 26   Paul Pradier-​Fodéré, Traité de droit international public européen et américain, vol. I (Paris: A. Durand et Pédone-​Lauriel, 1885), pp. 80–​2. 27  Pasquale Fiore, Trattato di diritto internazionale pubblico, vol. I, 4th edn (Torino: Unione Tipographica, 1904), p. 146, para. 210. 28  Luis Gestoso y Acosta, Curso elemental de derecho internacional público (Valencia:  Est. Tip. Domenech, 1897), p. 21. 29   John N. Pomeroy, Lectures on International Law in Time of Peace (Boston: Houghton, 1886), p. 34. 30   Charles H. Stockton, Outlines of International Law (London: Allen & Unwin, 1914), p. 15. 31   So expressly Baker, First Steps, p. 19. 24

robert kolb   289 be seen that the nineteenth century had a manifestly much broader conception of the sources of international law: for a series of authors, even the divine law,32 and text-​books (as a source of ascertainment of the law),33 fitted into it. In some cases, Roman Law was ascribed a certain role.34 The modern doctrine of the sources of the law emerged only progressively.35 In the wake of this development, the mention of history as a source of international law would disappear and the sources concentrate around the two main normative expressions of international law, namely agreements and customary rules. In short, the term ‘source’ would, in a positivistic fashion, concentrate more and more around the ‘formal sources’ of the law.

IV.  Positive Norms of International Law Referring to History as a Legal Fact There are some international legal institutions, albeit not many, that contain a reference to ‘historical facts’ as a part of the applicable legal norm. Facts designated by a norm of positive law as trigger for certain legal consequences are called ‘legal facts’. Some legal facts are of a subjective nature, particularly the will or intention of a subject of the law. The will expressed by a legal subject produces legal consequences, which normally correspond to the content of the expressed will. The result is then identical to the will expressed. If I want to dispose of some goods by a testament, the legal effect of that legal act will be that the goods will be distributed as I had stipulated. This is the realm of the so-​called ‘legal acts’ (actes juridiques, Rechtsgeschäfte). Conversely, there is the domain of the legal facts in the narrow sense. These are facts of objective and not of subjective nature, i.e. facts that do not correspond to an expression of will, but concern realities out there. Such realities may be material (e.g. the accretion of a part of territory) or flow from a human behaviour (e.g. an unlawful act). If and when such facts occur, certain legal consequences will flow 32   See e.g., William O. Manning, Commentaries on the Law of Nations (London: H. Sweet, 1839), p. 58; Pomeroy, Lectures on International Law, p. 25. 33   Frederick E. Smith, International Law, 4th edn (London: Little, 1911), p. 19. 34   Edward M. Gallaudet, A Manual of International Law, 4th edn (New York: A. S. Barnes & Co., 1892), p. 61, with a restrictive view of the author on the issue. 35  See e.g., Costantino Iannacone, Le fonti del diritto internazionale (Portomaggiore:  Giovanni Bottoni, 1925). Such a modern treatment can be found also, e.g., in the influential treatise of Henry Bonfils, Manuel de droit international public, 3rd edn (Paris: Arthur Rousseau, 1901), pp. 22 ff.; or in Frantz Despagnet, Cours de droit international public, 4th edn (Paris: Sirey, 1910), pp. 69 ff.

290    legal history as a source from them, as in the mentioned examples, the acquisition of territory on the one hand and the duty to make reparation, inter alia, on the other. The norms containing references to historic facts are ‘legal facts in the narrow sense’. They concern material and behavioural facts: history comprehends all forms of realities. Three examples of such legal norms may be given in the present contribution. They are not exhaustive, but correspond to the most important international legal institutions that make reference to the historical dimension. First, there is the concept of ‘customary international law’. Secondly, there is the concept of ‘historic interpretation of treaties’. Thirdly, there is the concept of ‘historic titles’. Each of these concepts is briefly presented here, remaining short of a fully fledged discussion of the contents and practices around the mentioned concepts, since this is not the subject matter of this chapter. The link with the historic dimension is, however, highlighted.

1. Customary international law Legal orders know of two fundamental types of sources of the law:  formalized sources, which tend to fix the law by detaching it to a certain degree from the spontaneous social activities; and historic or mobile sources, which keep the law in flux according to the never-​ending spontaneous social activities.36 The former type was privileged in some centralized societies, namely in modern States, through the movement of codification. The latter are privileged in decentralized societies, namely in the international one, where the law emerges out of the constant interaction between the legal subjects, in the first place the States. Some authors have gone as far as to consider that customary law is deprived of a formal source. In their view, it is merely a normative expression of spontaneous social forces and activities (customary law as ‘spontaneous law’).37 The better view is that the customary process is recognized in international law as a formal source, but that the process itself makes direct reference to the manifold social activities of the subjects of the law whose behaviour customary international law seeks to regulate. This makes of customary law a ‘historic source’ of the law, a source of law in constant movement. To what extent precisely can we call it a historic source? As is known, customary 36   For a short overview on customary international law, see e.g., Lassa F. Oppenheim, Oppenheim’s International Law, vol. I, eds Robert Y. Jennings and Arthur Watts, 9th edn (London:  Longman, 1992), pp. 25 ff. A good contribution is still the article by Michael Akehurst, ‘Custom as a Source of International Law’, British Yearbook of International Law, 47 (1974): 1–​55. 37   Roberto Ago, Science juridique et droit international, vol. 90, Collected Courses of the Hague Academy of International Law (Leiden:  Brill/​Nijhoff, 1956), 851–​991 and Roberto Ago, Scienza giuridica e diritto internazionale (Milano: A. Giuffrè, 1950), pp. 78 ff. For a criticism of this conception of a non-​formal-​source customary law, see e.g., Gaetano Morelli, Nozioni di diritto internazionale pubblico, 7th edn (Padova: CEDAM, 1967), pp. 23–​4.

robert kolb   291 international law is traditionally defined by two elements: practice (diuturnitas) and legal opinion (opinio juris).38 The two legal facts mentioned by the international legal norm on the production of customary international law are thus practice and opinion. The reference to practice is linked to a series of past attitudes, behaviours, positions taken, acts committed, etc. Reference is thus made to a conglomerate of historic facts of diplomatic and other nature, which are rooted in the history of the external relations of States and of some other subjects of international law. To be precise, it is not history as such that is a legal fact here; it is rather a series of acts and omissions placed in the historic dimension and context, and which can be understood only in its historic surroundings. Indeed, the various acts and omissions must be evaluated by the legal operator, not only to ascertain the legal opinion accompanying them or inherent in them, but also to ascertain their objective scope and meaning. It is hardly possible—​to take up an example already given—​to apply norms relating to ‘colonial protectorates’ if the operator has not a certain historic understanding of the facts of practice nourishing the domain. This link of customary law with practice and thus with history has been understood for a long time. A  clear formulation can be found in Robert Piédelièvre, writing in 1894:  ‘[t]‌out d’abord, l’histoire des relations internationales pourra servir à constater les règles coutumières: on y trouvera peut-​être les preuves d’une pratique habituelle, la répétition d’actes identiques, indiquant que les Etats ont suivi pour une relation déterminée une politique constante et uniforme’.39 This argument is also made by the many authors of the nineteenth century quoted above. The point is thus that history is an important dimension in the shaping of customary international law. This link of customary law with history was stronger in the traditional conception of customary law than it is in respect of certain modern variants of customary international law. As is known, up to the beginning of the twentieth century customary international law was based on the Roman Law conception of inveterata vel longa consuetudo (old custom).40 This meant that the acts of practice had to be rooted in a significant time-​span and go back to honourable ancient times. This restriction flowed from the legal constructions of the imperial lawyers of the late Roman Empire. Local customs binding as a matter of law were considered with suspicion (as also later was customary law in the centralized modern State, with its monopoly of law creation). The suspicion stemmed from the fact that legally binding custom was seen to concurr with the law-​making power of the Emperor—​and potentially to limit it. To keep the imperatoria majestas non-​encroached and thus 38  For a classical expression, see North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (Judgment) [1969] ICJ Rep 3, 44, para. 77. 39   Robert Piédelièvre, Précis de droit international public ou droit des gens, vol. I (Paris: F. Pichon, 1894), p. 22. 40   Digestum, 1, 3, 32, § 1 (Julian). On the issue see Dieter Nörr, ‘Zur Entstehung der gewohnheitsrechtlichen Theorie’, in Nörr, ed., Festschrift für Wilhelm Felgenträger zum 70. Gerburtstag (Göttingen:  Schwartz, 1969), 353–​66.

292    legal history as a source the legislative all-​might of the Emperor as broad as possible, the lawyers tried to limit the ambit of admissible customary rules.41 Hence the concept of old and constant practice, also the requirement of opinio juris. In the slow-​motion world of the nineteenth century, the concept of old custom still prevailed. When in the twentieth century the number of States rose and history accelerated, the concept of inveterata consuetudo was dropped and a series of novel conceptions arose, for example customary law crystallizing quickly as an effect of consensus expressed in international conferences, etc.42 It stands to reason that the link with the historic dimension is weakened in these modern expressions of customary law based on a narrower temporal compass. But the link does not disappear completely.

2. Historic Interpretation Another great legal question is the one relating to the basic approach in legal interpretation. There are mainly two schools of thought here:  one objective (or contemporary), the other subjective (or historical).43 The former school of thought considers that the proper object of interpretation is the text of the legislation (or, in international law, of the treaty) in its ordinary meaning and taken in the context 41   In the classical period of Roman Law, especially during the Republican period, customary law had played a central role in the context of constitutional law (mos maiorum), and also some role in the context of private law (consuetudo): see Gerhard Dulckeit, Fritz Schwarz, and Wolfgang Waldstein, Römische Rechtsgeschichte, 8th edn (München: C. H. Beck, 1989), p. 144. From the third century after JC onwards, the State institutions are slowly disintegrating, whereas chaotic local (vulgar) legal institutions grow up in practice. The Emperor attempted to subordinate the reach of these customs to his will: see Calasso, Medio Evo del diritto, pp. 5 ff.; Cavanna, Storia del diritto moderno, pp. 67 ff. See also Maurice Bourquin, Règles générales du droit de la paix, vol. 35, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1931), 1–​227, 62. On the return of customary law at latest since the nineth century, see Antonio Padoa Schioppa, Storia del diritto in Europa (Bologna: Il mulino, 2007), pp. 61 ff. and Ernst Levy, ‘Römisches Vulgarrecht und Kaiserrecht’, in Levy, ed., Jus et Lex, Essays in Honor of F. Gutzwiller (Vaduz: Topos, 1977), 65–​7 1. 42   See Georges Abi-​Saab, ‘La coutume dans tous ses états ou le dilemme du développement du droit international général dans un monde éclaté’, in Abi-​Saab, ed., Essays in Honor of R. Ago, vol. I (Milano: A. Giuffrè, 1987), pp. 53–​65. The ICJ itself admitted that a customary rule could emerge in quite a short time-​span: ICJ, North Sea Continental Shelf, p. 43. 43  The German School of law has developed this question in detail. See e.g., Karl Engisch, Einführung in das juristische Denken, 3rd edn (Stuttgart: W. Kohlhammer, 1956), pp. 88 ff.; Karl Larenz, Methodenlehre der Rechtswissenschaft, 3rd edn (Berlin:  Springer, 1975), pp. 302 ff.; see also Gustav Radbruch, Rechtsphilosophie, 8th edn (Stuttgart:  K. F.  Koehler, 1973), pp. 206 ff. That the interpretation of treaties regarding the intention of the parties may contain fictional elements has been stressed by Julius Stone, ‘Fictional Elements in Treaty Interpretation’, in Stone, ed., Of Law and Nations—​ Between Power Politics and Human Hopes (Buffalo: N. S. Hein, 1974), 167–​206, 171 ff. In the context of international law, see also Vladimir D. Degan, L’interprétation des accords en droit international (The Hague: Martinus Nijhoff, 1963), pp. 117 ff.; Robert Kolb, Interprétation et création du droit international (Brussels: Université de Bruxelles, 2007), pp. 407 ff., 606 ff. On the travaux préparatoires, see also Richard Gardiner, Treaty Interpretation (Oxford: Oxford University Press, 2008), pp. 99 ff., 303 ff.

robert kolb   293 of what it could and should mean in the present surroundings. The latter school of thought conversely considers that the proper object of interpretation is the intention of the historic legislator who set up the text. The search for the meaning should be determined according to the categories of inter-​temporal law. The main arguments of the two schools are as follows. For the objective school, the text is meant to be the controlling asset: the legislator wants the text to become independent and to determine objectively the normative space according to evolving realities. To remain consonant to the changing needs of times and in order to remain relevant as a tool of social control, the legislation must be adapted to the surrounding realities. This idea is sometimes expressed in the formula that the text ought to be more intelligent and comprehensive than the historical legislator itself could have been. In one word, the point is to consider the law as a normative tool of social control and engineering, for which a constant re-​reading and adaptation to the current circumstances is necessary. The subjective school insists on two aspects. First comes the fact that the text is but an expression of an intention (especially with treaties, in the contract law analogy). From this perspective, it would be odd to give precedence to the means (text) over the end (intention). The text is there to express an intention. The intention is the original asset and directs the textual expression. Thus, it should be given precedence. However, there will be some corrections to this position in the sense that an intention not expressed and not ascertainable for the other party will not be opposable to it. In the context of treaties, recourse is had to the figure of the ‘common intention’. Secondly, this school insists on the separation of powers. The legal operator is there to apply the law, not to rewrite it. If he or she was allowed to take account of later events beyond the intention of the historic legislator, he or she would to some extent modify the law and thus encroach upon what is thought to be the exclusive province of the legislator. In some States, the debate between ‘originalist’ and ‘evolutive’ interpretation has raged with particular intensity, for example in the United States and its Supreme Court.44 True, when looked at closely, the debate is to some extent artificial. In a real context, both aspects—​the text and the historic will of the legislator—​must be taken into account in a complex process of interpretation. Most often, it will be possible to harmonize these two strands, since much can be imputed to a purported intention! But there are also cases where a hard choice must be made. What is to be preferred here depends not only on the school of thought, but also on subject matter and on context. Thus, in the context of acquired rights, the historical interpretation will prevail. Conversely, in the context 44   An originalist approach is advocated in Antonin Scalia, A Matter of Interpretation, Federal Courts and the Law (Princeton:  Princeton University Press, 1997). An evolutionary approach is advocated in Stephen Bryer, Making Our Democracy Work, A Judge’s View (New York: Alfred A. Knopf, 2010). On this question, see Grant Huscroft and Bradley Miller, The Challenge of Originalism:  Theories of Constitutional Interpretation (Cambridge:  Cambridge University Press, 2011); Christopher Wolfe, How to Read the Constitution:  Originalism, Constitutional Interpretation, and Judicial Power (Lanham: Rowman & Littlefield Publishers, 1996).

294    legal history as a source of constitutional provisions the contemporary approach will and should in most cases prevail, since the constitution is made as a living instrument and intended to be such. In international law, the split of opinion has loomed large, especially in the context of interpretation of treaties. There has always been a school of thought favouring a subjective interpretation, according to the common intent of the parties.45 This school of thought has lost some degree of attractiveness with the adoption of the Vienna Convention on the Law of Treaties of 1969 (VCLT), since the VCLT adopts an objective system of interpretation, centred around the text.46 The reason for this choice was essentially an attempt to increase the legal certainty in treaty law. This search for certainty was considered essential particularly in three contexts. First, the point was to avoid powerful States trying to upset the equilibrium of the text by arguments arbitrarily marshalled out of the drafting history. Secondly, the attempt was to avoid an excessive rigidity in the law with regard to evolutions. Thirdly, the effort was to secure equality among the parties in multilateral treaties, since not all parties expressed their intention at the drafting stage, where the States acceding later to the treaty were not represented. However, the subjective school has also left some traces in the VCLT. This is particularly the case in Article 31 (4):  a special use of the words may be proven if this was the common intention of the parties. It is also the case in Article 32, through the travaux préparatoires. This reference goes to the historical elements, i.e. drafts, correspondence, and discussions during the process of adoption of the text. These elements may show the object and purpose of the treaty, as well as the original intention of the parties. For our purposes, it may be noticed that the subjective school of interpretation, searching for the original intention of the legislator (unilateral or common, as the case may be), considers that the fundamental norm of international law on the interpretation of treaties makes reference to historic facts. In this sense, the relevant diplomatic exchanges during the drafting stage of the treaty are not simply a material source of the law, as they are for the defenders of the objective view of interpretation. They are more, namely legal facts directly relevant for the interpretation of the treaty. In other words, a normative status is conferred on them by 45   One of the most important authors favouring such an approach was Hersch Lauterpacht. See e.g., Hersch Lauterpacht, Les travaux préparatoires et l’interprétation des traités, vol. 48, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1934), 713–​815; or John Westlake, International Law, vol. I, 2nd edn (Cambridge: Cambridge University Press, 1910), p. 293. See now also Eirik Björge, The Evolutionary Interpretation of Treaties (Oxford: Oxford University Press, 2014), with many references. 46   Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 31). See Mustafa K. Yasseen, L’interprétation des traités d’après la Convention de Vienne sur le droit des traités, vol. 151, Collected Courses of the Hague Academy of International Law (Leiden:  Brill/​Nijhoff, 1976), 1–​112.

robert kolb   295 a customary rule of international law concerning interpretation. Once more, it is not history as such that becomes a legal fact, but the political and sociological facts essentially linked with the historic dimension. The most radical objective schools sever this link and reduce these political-​sociological facts to being at best a subordinate material source of international law, in the sense that they may contain some useful elements in the proper understanding of the norms. For the subjective school, these elements have a normative legal status.

3. Historic titles A title in the legal sense is a fact that the legal order recognizes as the cause or basis of entitlements or of rights,47 especially over a territory.48 In the passive sense, the title is the source and the basis of the territorial jurisdiction of the State over its territory. It founds its dominium (property) and imperium (jurisdiction).49 In the active sense, the title is the basis for a legal claim to a territory.50 There are two basic types of titles. The first are the ‘formal titles’. These flow in most cases from treaties over territory or over delimitation. This conventional basis of the rights is either direct or indirect. It is direct when the recognition of the ownership over the territory is expressed in the treaty itself, and indirect when the treaty stipulates a process by which the ownership over territory shall be determined, such as an arbitral award.51 Formal titles over territory in international law are often quite remote (and in this narrow sense they have their roots deep in history). It is frequent that they are based on agreements going back to the nineteenth century,52 47   On this notion, see generally Yehuda Z. Blum, Historic Titles in International Law (The Hague: Martinus Nijhoff, 1965); Charles de Visscher, Les effectivités du droit international public (Paris: Pedone, 1967); Oppenheim, Oppenheim’s International Law, pp. 708 ff.; Andrea Gioia, ‘Historic Titles’, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2013), , accessed 31 May 2017. In the case law, see e.g., Territorial Dispute (Eritrea v Yemen) (1998) 114 ILR 1, 37. For the sweeping historic claims that the People’s Republic of China has recently advanced as to its southward sea-​areas, see Florian Dupuy and Pierre-​Marie Dupuy, ‘A Legal Analysis of China’s Historic Rights Claim in the South China Sea’, American Journal of International Law 107 (2013): 124–​42. 48   On the notion of territorial title, see e.g., Giovanni Distefano, L’ordre international entre légalité et effectivité (Paris: Pedone, 2002), pp. 58 ff., with many references, and the slightly different view of Marcelo G. Kohen, Possession contestée et souveraineté territoriale (Paris: Press universitaires de France, 1997), pp. 127 ff. 49   Jean Combacau and Serge Sur, Droit international public, 9th edn (Paris: Montchrestien, 2010), p. 426. 50   See e.g., Island of Palmas case (Netherlands v United States) (1928) 2 RIAA 842. 51   See e.g., the award in the Argentine–​Chile Frontier case (Argentina v Chile) (1966) 16 RIAA 109. 52   Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malesia) (Judgment) [2002] ICJ Rep 625.

296    legal history as a source and in some cases the relevant titles reach back into the twelfth century.53 The other basic type of title is ‘historic’. Ownership over territory can be acquired by the continuous, uninterrupted, and peaceful display of public authority over a territory or a space, when the owner of the formal title does not oppose by protest such an adverse administration over a prolonged period of time (‘acquisitive prescription’).54 History becomes the main dimension of this sort of title, in the sense that a series of material acts and facts of public nature, spreading over a significant amount of time, are recognized by a norm of the legal order as producing a certain result: the extinction of an adverse formal title and the creation of a new title to territory. In a potentially somewhat misleading formula, Charles de Visscher has spoken of a ‘historic consolidation of title’.55 The formula is felicitous in the sense that it indicates the historic dimension in which the relevant acts are placed. It is potentially misleading in that it could suggest that the acts and facts done by the State administering the territory à titre de souverain are sufficient to create the new title and to extinguish the old one.56 But this would not be true. No State can unilaterally create new titles over territory, just by an action of might and of usurpation. The prescription or consolidation of the title occurs only if the lawful owner abandons the title to territory. This abandoning of the formal title can occur through a public renouncement, but also through a prolonged passivity in the face of the adverse territorial pretense, manifested through the effective display of public authority (acquiescence). As with the concept of customary law, history is here the overall dimension in which a series of acts and facts, spread over a prolonged time, are located. In this sense, the title consolidated over time is called a ‘historic’ title. Once more, it is not history as such which is a source of international law. Facts, rooted in a historic dimension, are recognized by a norm of international law as legal facts giving rise to juridical consequences in the context of sovereignty over territory.

  The Minquiers and Ecrehos case (France v UK) (Judgment) [1953] ICJ Rep 47, 53–​5.   On this concept and the precise legal conditions for prescription over territory, see Robert Kolb, ‘La prescription acquisitive en droit international public’, in Piermarco Zen-Ruffinen, ed., Le temps et le droit (Université de Neuchâtel) (Basel: Helbing Lichtenhahn, 2008), 149–​75; Luis I. Sánchez Rodriguez, L’uti possidetis et les effectivités dans les contentieux territoriaux et frontaliers, vol. 263, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1997), 149–​372, 244. See also Robert Y. Jennings, The Acquisition of Territory in International Law (Manchester:  Manchester University Press, 1963). On the judicial resolution of territorial disputes, see Géraldine Giraudeau, Les différends territoriaux devant le juge international (Leiden: Martinus Nijhoff, 2013). This process may also concern common spaces, such as the high seas. 55   De Visscher, Les effectivités du droit international, pp. 101 ff. From this point of view, the term ‘effectiveness’ is even less appropriate (but see Malcom Shaw, Title to Territory in Africa: International Legal Issues (Oxford: Clarendon Press, 1986), p. 19). 56   This is a form of opinio juris. 53

54

robert kolb   297 The law of the sea knows some distinctive categories of historic titles, namely ‘historic waters’57 and ‘historic bays’.58 These concepts refer to waters situated inter fauces terrarum or near the coastline of a State, which were treated over a prolonged time as sovereign territory of the coastal State without arousing the protest of interested third States. In other words, these waters were treated for a prolonged time as internal waters and not as territorial waters, or as exclusive economic zone, or as high seas. In the context of bays, there are detailed rules as to when the surface of a bay is to be considered internal waters.59 This is the case when it can be closed by a straight baseline, from where the maritime zones of the State are measured. However, there are some bays, which do not fulfil the conditions for being closed by such a straight baseline. In this case, these bays are not ex lege subjected to the regime of internal waters. Here the concept of historic bays becomes relevant. If a bay which does not fulfil the ordinary conditions to give rise to internal waters was treated for a long time as internal waters, and if interested third States have not protested against this treatment, the waters in this bay will at some stage be transformed into internal waters. More precisely, the status of internal waters will become internationally opposable to the acquiescing States. The process of consolidation of title over these maritime zones is thus basically the same as for prescription of territory in general. Again, the spread of the relevant acts and facts over a prolonged period casts them into a ‘historic dimension’ and explains the vocabulary of ‘historic’ waters or bays.

V.  History as a Source of Legal Culture Finally, there are some issues related to the usefulness of (legal) history for the general construction and understanding of international law. Strictly speaking, history does not appear in this context as a source of international law at all. But history may 57   Shabtai Rosenne, ‘Historic Waters in the Third United Nations Conference on the Law of the Sea’, in Terry D. Gill and Wybo P. Heere, eds, Reflections on Principles and Practice of International Law:  Essays in Honor of Leo J.  Bouchez (Leiden:  Martinus Nijhoff, 2000), 191–​203; Andrea Gioia, Titoli storici e linee di base del mare territorial (Padova:  Cedam, 1990); M. W. Clark, Historic Bays and Waters: A Regime of Recent Beginnings and Continued Usage (New York: Oceana, 1994); Clive R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-​Appraisal (Leiden: Martinus Nijhoff, 2008). See also the Fisheries Case (United Kingdom v Norway) (Judgment) [1951] ICJ Rep 116. 58   Leo J. Bouchez, The Regime of Bays in International Law (Leiden: A.W. Sijthoff, 1963), pp. 199 ff.; Michel Bourquin, ‘Les baies historiques’, in Bourquin, ed., Mélanges Georges Sauser-​Hall (Neuchâtel, Paris: Delachaux et Niestlé, 1952), 37–​51; Clark, Historic Bays and Waters. 59   See Article 10 of the United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay, 10 December 1982, 1833 UNTS 3).

298    legal history as a source aid a better understanding of the legal phenomena encountered in international law. The following points can briefly be made. Since international law is a legal order flowing from the constant interaction among States and other subjects,60 and is not ‘petrified’ into a code, the understanding of the political, sociological, and historical surroundings of the legal norms is particularly important in order to properly understand the legal phenomena and thus to give them a reasonable interpretation. The distance between the formal legal norms and the spontaneous social activities is particularly narrow in international law. The great importance of customary law and of subsequent practice in the construction of treaties evidences this fact. History should clearly not be used to weaken the formal rules by making them fade into a broad non-​juridical space. The point is rather to enrich the understanding of the legal norms by enabling the legal operator to perceive them in their full context. Some knowledge of legal history is precious for the lawyer. The reason is not so much to be erudite, superficially impressing with a broad knowledge potential or actual discussion partners. The point goes much deeper: it is that legal history represents a sort of comparison of legal orders (droit comparé) and is a source of legal culture. This legal culture allows the legal operator to be by far more imaginative when faced with a particular situation. He or she will have a much richer palette of knowledge of legal realities on which to draw, and this in turn fertilizes legal imagination and constructions. The proper genius of the lawyer is to be able to think a case from different perspectives and to imagine uncommon legal arguments, i.e. arguments which others do not see. The study of legal history considerably sharpens that ability. It also shows that rules are bound up with a certain system and a certain ideological background; that, while perhaps lexically identical, they operate quite differently in different social and political settings; and that different functions can be performed with apparently identical rules, as identical functions can be performed with apparently different rules. The power flowing from the ability to apply such different approaches is a powerful stimulus for increased legal ability. History allows the lawyer to seize the—​or at least some—​reasons for the rules. Without understanding the ‘why’, there is no true understanding in social practice and sciences. This is crucial for a correct interpretation of the norms. Law is geared towards an aim; the material sources, with history at their centre, allow this appropriation of meaning to occur. In this sense, a historically uncultivated lawyer is partially blind, and the picture of reality he or she draws will therefore be also partially uncharted.

60   See the famous formula of Myres S. McDougal, ‘The Hydrogen Bomb Tests and the International Law of the Sea’, American Journal of International Law 49 (1955): 356–​61, 357.

robert kolb   299 Finally, history shows to its student the contingence and relativity of legal régimes, as it also shows the points of convergence of regulations across different times. The respective parts of contingency and of necessity are put into perspective. Therefore, the study of history is a bulwark against excessive facility, blindness, and arrogance. In contrast, it favours restraint, critical spirit, and modesty. As a consequence, history increases the scientific qualities of a student and in particular opens his or her mind to the ‘otherness’. This is an important pull towards personal maturity.

V. Conclusion This short study on history as a ‘source’ of international law has shown the following. First, in the earlier stages of international legal science, especially up to the end of the nineteenth century, there prevailed a larger conception of the sources of the law. During this phase, the literature of international law gave pride of place to history as a source of international law. At the formative stage of the law, this reference meant essentially that the writers would construct international law by having, inter alia, recourse to old precedents and the wisdom of classical poets, as an expression of the principle of authority. Later, the reference meant that international law had to be elicited from the history of international relations and the perusal of diplomatic documents. Secondly, in the twentieth century, when the modern doctrine of sources was established, in the wake of the progress of positivistic constructions of the law, history lost any claim to being a primary source of international law. It was relegated to being a material source, which could at best be taken account of in the context of interpretation of legal norms. However, some legal norms made reference to acts and facts scattered in the historical dimension, i.e. in a longer time-​axis. These scattered acts and facts were transformed into legal facts. True, history is here not a source of international law. But a series of facts being perceived as linked with history (i.e. spontaneous social activities spreading over a prolonged time) are given a normative status within the positive law. The concept of ‘historic titles’ is quite a telling example of this legal technique. Thirdly, the study of legal history has remained a vector of legal culture. It allows practitioners to perceive the law in its surroundings and thus to have a more complete view of the legal order and of its functioning. It increases the personal abilities of the legal operator. In this sense, it can be considered as being a source of legal learning. This contribution of history may be considered particularly important in

300    legal history as a source a legal order like the international one, where the sources of the law remain in constant flux. Its sources flow from an unfolding interaction of demands and responses among the many actors in the international arena, rather than being couched in a code accompanied by conceptions of completeness and coherence.61 In a decentralized legal order, where customary law has a great impact, this state of affairs cannot be expected to change significantly in the coming years.

Research Questions • What legal roles does history currently play in international law? • How do these roles differ from earlier conceptions of the role of history as a source of international law, and what accounts for these differences?

Selected Bibliography Aspremont, Jean d’, Formalism and the Sources of International Law. A  Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). Barberis, Julio A., Formación del Derecho Internacional (Buenos Aires: Ábaco de Rodolfo Depalma, 1994). Grewe, Wilhelm G., The Epochs of International Law (Berlin: De Gruyter, 2000). Thirlway, Hugh, The Sources of International Law (Oxford: Oxford University Press, 2014). Truyol y Serra, Antonio, Histoire du droit international public (Paris: Economica, 1995). Van Hoof, G. J. H., Rethinking the Sources of International Law (Deventer: Kluwer, 1983). Verdross, Alfred, Die Quellen des universellen Völkerrechts (Freiburg im Breisgau: Rombach, 1973).

  On these positivistic ideals, see e.g., Norberto Bobbio, Il positivismo giuridico (Turin: G. Giappicelli, 1996), pp. 203 ff; Bobbio, Teoria generale, pp. 173 ff. 61

Chapter 14

LEGAL HISTORY AS A SOURCE OF INTERNATIONAL LAW THE POLITICS OF KNOWLEDGE

Samuel Moyn

I. Introduction History is not officially one of the sources of international law. It is unmentioned in Article 38 of the Statute of the International Court of Justice, currently taken to state what those sources are.1 As Robert Kolb observes in ­chapter 13 of this volume, however, history is an indirect source of international law. Insofar as treaties were negotiated and ratified in the past (even if they are interpreted flexibly after), and insofar as custom is an inherently historical phenomenon because it accretes over time, the central sources of international law are inextricable from historical knowledge. This chapter claims that no serious theory of the sources of international law can avoid what professional historians now take for granted: namely, that historical knowledge is necessarily political. Historians have long since taken on board what   Statute of the International Court of Justice (San Francisco, 26 June 1945, 33 UNTS 993).

1

302    legal history as a source lawyers more recently and still nervously have treated as a scandalous claim: there is no way to insulate zones of expertise from the open-​ended contention about how to live together characteristic of social life. Insofar as history is a source of international law, it follows that it is always a ‘usable past’. A serious theory of history as a source of international law, therefore, must take a step into sociology, to understand how historical knowledge is brought to bear in ongoing present controversies. Like interpreting history, interpreting law is an expert practice. For that very reason, professional constraints and possibilities are probably the central factors in understanding outcomes. This chapter begins by laying out this argument, then assesses its implications for mainstream accounts of the sources of international law. If the authority of international law depends on present-​day contention over its historical trajectory, there will always be different positions available as to the original meaning of a treaty, or the historical credentials of proposed customary norms, and these positions depend in part on what people call political or ideological commitments. This claim does not, of course, mean that the content of international law is whatever contemporary observers say it is. A  variety of factors impose controls. Among historians, professional standards serve this purpose, but the cognate standards of international lawyers are not similarly restrictive, often making their recourse to history as an indirect source even more political or ideological in character. Despite such critical differences, for neither history nor law is there some fact of the matter about how to understand the past outside contentious interpretation. The chapter goes on to explore a recent legal conflict in which history figured to test and improve the claim that history is political. It looks at the recent contention in American courts interpreting the Alien Tort Statute (1789) about whether a norm of corporate liability for atrocity crimes is part of customary international law. (Many aspects of this case involved domestic US law, but I focus only on how the litigation forced a contest over whether corporate liability had ever been imposed in the Nuremberg era, a contest pursued on the ground that it might illustrate the existence, or not, of a customary international law norm allowing corporate liability.) The chapter concludes that this fascinating instance of the uses of history in the ascertainment of the requirements of international law fits well the theory that historical knowledge is ineradicably political, though contained by professionalism.

II.  History of International Law as Contemporary Politics ‘Enfin l’histoire . . . du droit international servent à faire connaître le vrai sens des traités existants et des usages internationaux’, writes Georg Friedrich von Martens,

samuel moyn   303 the great Russian international lawyer of the late nineteenth and early twentieth centuries: ultimately, the history of international law serves to make the true sense of existing treaties and international usages intelligible. History, he further explains, allows ‘clearly distinguishing the feeling of law that subsists among nations and that is expressed in treaty and custom’.2 The true sense? Clearly? It is doubtful anyone could confidently write such things today. The reason is that our epistemology differs, and it is no longer believable to claim that a theory of international law (or much else) could depend on an ultimately non-​partisan way of knowing. But it is important to get clear about why. No nihilistic commitments are involved in the contrary view that there is no true sense of international law or that history (or any other tool) would allow a clear distinction from erroneous interpretation or non-​existent obligation. Rather, the claim is that history, much like law itself, is an inevitably political activity. If this is true, then one must amend Martens’ dictum for a different age:  history is one way contemporary lawyers will argue with one another about what sense existing treaties and international usages ought to be given now. Benedetto Croce famously claimed in his own dictum, ‘[a]‌ll history is contemporary history’. Similarly, the use of history in international legal argument is contemporary history.3 This is not a case for ‘indeterminacy’ of law or anything else. Both the text of a given instrument (in the case of treaties) and almost incontestable facts about State practice independent of interpretation (in the case of custom) certainly impose constraints on what international law can be made to mean. But far more important is the extant professional context of interpretive consensus about what obligations some piece of law involves. As reception theory has shown, the ‘authority of interpretive communities’ is as important a factor in explaining results as the words on the page or facts about the world.4 Yet these sorts of constraints can never—​or almost never—​impose absolute unanimity on the interpretation of even apparently simple legal problems, especially given the range of tools that lawyers learn to bring to bear on them and which provide as many devices to open debate about meaning as to close it. Thus, even if the texts of treaties or the constituents of custom are rarely indeterminate, they are never fully determinate. There is always room for manoeuvre in deciding what they mean. The shape of the room for manoeuvre, like how much is allowed, is provided by (themselves historically accreted) social forces, not by ‘law’ in the sense of some separate set of texts or norms. A sophisticated theory of the role of history in international law—​in the attribution through history of authority to treaty and   Georg Friedrich von Martens, Traité de droit international (Paris: A. Maresq, 1883), 1, p. 254.   ‘Ogni vera storia è storia contemporanea.’ Benedetto Croce, Theory and History of Historiography, trans. George Harrap (London: George Harrap, 1921), p. 12. 4   Stanley Fish, Is there a Text in this Class?: The Authority of Interpretive Communities (Cambridge: Harvard University Press, 1980). 2 3

304    legal history as a source custom—​will therefore take the form of a picture of the major constraints that cabin interpretation and the ideological struggle that takes place in the remaining field of contest. Of these constraints, the social force of professional norms probably looms largest, with the proviso that there is a substantial difference between interpreting a phenomenon as a professional historian and interpreting a formal treaty or informal customary obligation as a professional lawyer. In the field of history, the German theorist Jörn Rüsen has gone farthest in establishing the central role of professional communities in placing constraints on plausible answers to historical problems. As Rüsen has detailed, professional consensus imposes strict controls not only on what questions are meaningful or valuable, but also on what answers are acceptable.5 Not that international lawyers will lack their own powerful professional constraints, but they are sure to be very different. As Martti Koskenniemi has classically demonstrated, international lawyers are generally condemned to tack back and forth between ‘apology’ and ‘utopia’—​that is, between the world of authority as it is, in which the defence of State interests in their relations inter se still looms largest, and a progressive commitment to improve or ‘civilize’ that world.6 If they owe fealty to the sources of international law that give their interpretations authority, they have a necessarily different relation to their historical interpretation than the professional community of historical scholars. Before delving further into the distinction between the professional constraints of historians and lawyers, it may help to reach the broadly sociological need to do so by a different route. After all, there is nothing specific to international law about the politics of historical knowledge and therefore to the centrality of professional norms in setting the terms for agreement and disagreement. To see how, it is worthwhile shifting briefly to the parallel case of constitutional law. Indeed, because of the rise of the specifically historicist mode of constitutional interpretation now popular in the US thanks to the rise of ‘originalism’, debates about the uses of history in law generally are easiest to appreciate with an American detour. Like international law, constitutional law makes historical knowledge an indirect source of authority. To know what a constitutional text meant, or what customary norms and practices have constitutional status even if they remain unwritten, requires historical claims, which are in turn inevitably contentious, though not unconstrained. In other words, the politics of historical knowledge in international law are structurally analogous to the politics of historical knowledge in law generally. And it is legitimate to expect the dynamics of those politics to be roughly analogous across the dividing line between constitutional law and international law. 5   See Allan Megill, ‘Jörn Rüsen’s Theory of Historiography between Modernism and Rhetoric of Inquiry,’ History & Theory 33 (1994): 39–​60. 6  Martti Koskenniemi, From Apology to Utopia:  The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) (reissue with a new epilogue).

samuel moyn   305 In his recent constitutional theory, Jack Balkin has moved beyond a prior era of debate in which US conservatives claimed fidelity to ‘original meaning’ while liberals claimed to hew to ‘the living constitution’—​what Europeans would call evolutionary interpretation. That the former camp inevitably interpreted original meaning ideologically had long been a stock in trade of US political debate. Of course, the chief originalist, the late Supreme Court Justice Antonin Scalia, acknowledged that no one—​not even him—​was a pure advocate of inflexible adherence to long-​ago texts.7 But it was a bigger concession that US liberals, led by Balkin, acknowledged that original meaning was part of their approach—​if not, there was nothing to evolve. Hence Balkin’s proclamation that he was a ‘living originalist’. These debates will seem picayune and parochial to non-​Americans, and rightly so. But more interesting is that Balkin’s transcendence of the prior camps of the historians and the presentists restores debates over the meaning of constitutional law to the location in which they clearly take place: a contested though bounded field of ideological or political interpretation of past constitutional text and custom. It was tempting for decades to dismiss originalist history in the American constitutional debates as if it were ‘law office history’, and it is true that it suffered by comparison with the rich writings of historians without a legal case motivating them to find a specific answer.8 But this tempting response falls short, since historical writing drafted outside the context of an active legal case is equally political, albeit differently so. For this reason, what might distinguish ‘law office history’ from professional history is not that one is instrumental and the other objective, but that each answers to different professional standards. Interestingly, Balkin relies heavily on a theory of professional consensus to determine what claims about the present meaning of past constitutional commitments are available and believable. In a first stage, citizens introduce a different vision of the nation and therefore what its constitution should mean. Legal meaning follows as lawyers and ultimately judges help the successful claims about the meaning of past commitments in new circumstances to be ratified. Public opinion is never exactly the same as a typically more belated judicial consensus, in part because judges, like lawyers more generally, are trained to frame claims as legal interpretations, subject to canons of interpretation and professional norms.9 7  See Antonin Scalia, ‘Originalism:  The Lesser Evil’, University of Cincinnati Law Review 57 (1989): 849–​65. 8   See e.g., Matthew J. Festa, ‘Applying a Usable Past:  The Use of History in Law,’ Seton Hall Law Review 38 (2008): 479–​551; Martin S. Flaherty, ‘History “Lite” in Modern American Constitutionalism’, Columbia Law Review 95 (1995): 523–​90; Alfred H. Kelly, ‘Clio and the Court: An Illicit Love Affair’, Supreme Court Review (1965): 119–​58; Larry D. Kramer, ‘When Lawyers Do History’, George Washington Law Review 72 (2003):  387–​422; Mark Tushnet, ‘Interdisciplinary Legal Scholarship:  The Case of History-​in-​Law,’ Chicago-​Kent Law Reivew 71 (1996): 909–​34. 9   Jack Balkin, Living Originalism (Cambridge: Harvard University Press, 2011), esp. ch. 1.

306    legal history as a source It also follows that radical changes in the content of the public and professional consensus—​whether brought on by slow transformation or civil war—​alter the boundaries of what counts as a permissible move. All constitutional history, one might say, is contemporary history. And as Balkin spells out, one consequence of this is that constitutional arguments that once seemed ludicrous or ‘off the wall’ can be made to seem professionally acceptable, and vice versa, over time. Because of public and professional forces, communities struggle to ‘construct which constitutional interpretations are reasonable and available to judges and which are off-​the-​wall’.10 When it comes to historical knowledge as a constituent feature of the establishment of legal authority, therefore, the challenge from situation to situation is thus to observe how interpretive communities are constructed and how they reckon with the historical meaning of their texts and custom.

III.  Historians versus Lawyers: A Brief Contrast The similarities and differences between the fields of history and law themselves are a historical topic of very long standing. As Carlo Ginzburg famously described, historians sometimes like to assume the role of judges, even when they are making very contentious claims.11 Georg Wilhelm Friedrich Hegel, invoking a saying of Friedrich Schiller, famously (or notoriously) likened world history to a world court. Exactly contemporary with Martens’ confidence in the power of history to achieve objectivity for international law, Lord Acton invoked the parallel of historians and judges to explain how history could serve such a purpose: ‘historiography, when it is based on documents, can rise above all disagreements and become an established court of law, the same for one and all’, as Ginzburg writes.12 But the judge is not the only figure in law; there are advocates too who prepare candidate interpretations for judges to endorse, reject, or improve.13 Historians were

 ibid., p. 19.  Carlo Ginzburg, The Judge and the Historian:  Marginal Notes on a Late-​Twentieth-​Century Miscarriage of Justice, trans. Anthony Shugaar (London: Verso, 1999). 12   ibid., pp. 12–​14. 13   In any event, as my later case study will show, the distinction between judges and advocates is much less certain today, and rightly so, since judicial activity is no less political than advocacy. See e.g., Duncan Kennedy, Critique of Adjudication (fin-​de-​siècle) (Cambridge: Harvard University Press, 1998). 10 11

samuel moyn   307 more likely to be compared to advocates in the ancient world, in the spirit of the rhetorical tradition with its classical sources, before the professionalization of history in the early modern age and the rise of a value-​free notion of science in the nineteenth century made the parallel with the judge more alluring. But to this day, law in general and international law in particular assign a much more definite role to advocacy—​with lawyers called upon to give the best argument available in the setting of a particular controversy and on behalf of one side or the other, rather than achieving balance or equipoise. Indeed, the problems that professional historians take up, and therefore the answers they provide, rarely have the equivalent urgency as in law, for example because a burning problem is to be resolved in a judicial setting and arguments are required on either side in advance. Historians tend to debate problems like what life was like in ancient Rome, why the French Revolution happened, whether the Soviet Union or the US was guilty of starting the Cold War, or why inequality contracted in one era and expanded in another. All these are incontestably political in their implications, and have been the subject of massive ideological contention. But rarely do professional historians face the exigency of producing arguments about the past for a decision-​maker in a concrete situation. And while historians argue, they are not permitted to advocate to the exclusion of considering the balance of the evidence they collect. In fact, sometimes the model of engagement with the past that historians are supposed to take up leaves behind not only the role of advocate, but even that of judge, in the name of a higher impartiality than the judicial analogy might suggest. A judge is still an agent of the community and State; if charged with impartiality, it is only in enforcing their commands and values. Sometimes it is said that historians, in contrast, are called upon not so much to judge with detachment as to interpret with empathy; and for this reason, in his classic essay The Historian’s Craft, Marc Bloch (as Ginzburg records) opposed the analogy of history not simply to law in general but to judging in particular. Historical knowledge is not about rendering a verdict at all, but interpreting what the past was like, even at the risk of ignoring the maxim that tout comprendre c’est tout pardonner. In summary, it is not only their own professionalism, but also their typically more abstract inquiry, and their commitment to an ultimately non-​legal model of insight that together make historians less opportunistic than lawyers in thinking that the past will deliver legal verdicts. They abhor what is sometimes called ‘law office history’—​reconstructions of the past as means to an end. This is true even though, paradoxically, today historians are regularly more open than lawyers to the essential contestability of historical knowledge. A generation of work has done far more in history than in law to erode the plausibility of the ideal of impartiality or objectivity. At this point, the mainstream of history is now quite far

308    legal history as a source along in abandoning the entire ideal of ‘objectivity’ in interpretation, compared to lawyers, who have generally stood firm in defending that ideal.14 Ginzburg, notoriously, found this fact quite galling. With the development of historiography after Bloch, the simple commitment to objective truth characteristic of prior generations came under assault, and with it the notion that historians could serve as judges. Bloch may have right to abandon a ‘moralistic historiography based on a judicial model’, Ginzburg wrote. But more recent generations had now adopted the equally extremist alternative that made interpretation merely a matter of presentist controversy, which Ginzburg acidly dismissed as ‘a lazily radical form of skepticism’.15 Yet as we have seen, a commitment to the fundamentally political and ideological character of history hardly means proof is irrelevant or that ‘anything goes’. It does, however, force a theory of constraints on historical knowledge that are provided by conformity not so much to objective truth as to professional consensus. The ascertainment of historical meaning in contest by international lawyers, by comparison, will lack the professional consensus of historians as a form of constraint. As Annelise Riles puts it, lawyers are ‘amateurs’ when it comes to other professions, and international lawyers making claims about the past provide an excellent example.16 When professional international lawyers engage history—​even when they consult historians, as occurred in the Alien Tort Statute litigation, as I discuss below—​they understandably lack the same constraints as professional historians are forced to assume. This is not to say that international lawyers do not have their own powerful professional norms guiding and controlling interpretation. But they will differ, providing different possibilities and constraints to those in the professional community of historians. The boundaries are provided more by the need to defend the boundary between international law and international politics and policy-​making—​their interpretations are supposed to be not simply somebody’s opinion but an expert judgment about the nature of binding obligations—​than by the differently constituted professional norms of historical scholars. These enduring features of professional difference may have slightly changed in recent years due to the impressive surge of interest in the historiography of international law among historians and lawyers alike.17 Convergence is occurring 14  Compare e.g., Peter Novick, That Noble Dream:  The ‘Objectivity Question’ and the American Historical Profession (Cambridge: Cambridge University Press, 1988) with Ronald Dworkin, ‘Objectivity and Truth: You’d Better Believe It’, Philosophy and Public Affairs 25 (1996): 87–​139. 15  Ginzburg, The Judge and the Historian, pp. 15, 17. 16   Annelise Riles, ‘Legal Amateurism’, in Justin Desautels-Stein and Chris Tomlins, eds, Searching for Contemporary Legal Thought (Cambridge: Cambridge University Press, 2017). 17   See e.g., George Rodrigo Bandeira Galindo, ‘Martti Koskenniemi and the Historiographical Turn in International Law’, European Journal of International Law 16 (2005): 539–​59, and more cautiously, Samuel Moyn, ‘Martti Koskenniemi and the Historiography of International Law in the Age of the War on Terror’, in Wouter Werner, Marieke de Hoon, and Alexis Galán, eds, The Law of International Lawyers: Reading Martti Koskenniemi (Cambridge: Cambridge University Press, 2017).

samuel moyn   309 to replace the intermittent and superficial intersection between the professional communities that prevailed before. But as my case study shows, to date the emphases on both the distorting effect of inquiry driven by legal advocacy and the persistent divide between communities remain compelling in making sense of how the politics of historical knowledge works in the history of international law. A case study of the recent Alien Tort Statute litigation shows that, even as histories written by international lawyers have taken on more professional characteristics, historians are sometimes swept into the ideological strife more characteristic of international lawyers.

IV.  The Setting: The Alien Tort Statute in US Courts The recent high-​profile controversy about the meaning of the Alien Tort Statute—​ passed by the US Congress in 1789—​provides a useful aperture on and concrete example of these more abstract considerations. At the start, and in the lower courts of the US judicial system, the case of Kiobel v Royal Dutch Petroleum bore on whether a norm of civil liability for corporations obtained in customary international law. In the end, the debate concerned whether the statute should have extraterritorial scope, the topic that in a startling turn of events the US Supreme Court decided to take up to decide the case, though Kiobel had begun on a very different topic. Both the beginning and end of the case implicated the politics of historical knowledge. In the earlier part of the dispute, the topic was what sort of norm of corporate responsibility the Nuremberg trials after World War II had consecrated. In the later part, it was a politics about whether the eighteenth-​century American founders who wrote the act in the first place might have intended it to cover foreign defendants and extraterritorial acts. I will focus on the first part of the litigation in what follows, since crucially, Americans understood whether they should read the statute to impose liability on corporations to be a matter of customary international law—​hence the use of the litigation for my purposes here. The Alien Tort Statute (ATS) provides for a civil remedy in the federal courts of the US for wrongdoing ‘committed in violation of the law of nations or a treaty of the United States’. The statute lay fallow for almost two centuries, and when it was revived in the late 1970s in the age of the human rights revolution, it had long since been forgotten what its purposes may have been. As celebrated Judge Henry Friendly remarked at the time, the act was a ‘legal Lohengrin’, for ‘no one seems to

310    legal history as a source know whence it came’.18 But an eventually massive wave of litigation was launched by the Second Circuit Court of Appeals approval in the landmark case of Filartiga v Peña-​Irala (1980) of the use of the statute to pursue human rights violators. In that case, a Paraguayan torturer was held liable for civil wrongdoing, and the human rights movement suddenly had a powerful tool and an operative venue to pursue claims for redress for some of the worst crimes imaginable.19 Several decades later, the ATS was being used to pursue corporate responsibility for such crimes. In Kiobel (2010), the Second Circuit—​the same court that had launched ATS litigation in 1980—​considered whether a norm of corporate responsibility existed under ‘the law of nations’. True, many observers felt that the question made little sense: perhaps, they claimed, what entities may be subject to civil liability under the statute for violations of international law norms had itself to be conceived as a domestic law matter, just as the rest of the law of torts (e.g., remediation) necessarily comes from outside international law. But neither side in the Second Circuit case took this view; both looked to international law not merely to ascertain the content of the relevant norms, but also to resolve the question of whether corporations could be liable for their violation. As Judge José Cabranes explained in his opinion for the Second Circuit majority, the substantive law that determines our jurisdiction under the ATS is neither the domestic law of the United States nor the domestic law of any other country . . .. [T]‌he ATS requires federal courts to look beyond rules of domestic law—​however well-​established they may be—​to examine the specific and universally accepted rules that the nations of the world treat as binding in their dealings with one another. Our recognition of a norm of liability as a matter of domestic law, therefore, cannot create a norm of customary international law.20

And since the Nuremberg trials—​beginning with the International Military Tribunal (IMT, 1945–​1946) and extending into the so-​called ‘successor trials’ or Nuremberg Military Tribunals that were held thereafter (NMT, 1946–​1948)—​seemed to be the central episode in the history of international law in which corporate liability had been implicated in an international adjudicatory setting, its history suddenly became a matter of heated dispute. Absent any applicable treaty law—​no human rights treaties concerned corporate liability—​the court looked to customary international law and its history.21 But at Nuremberg, the court majority concluded, there had been no decision to submit abstract entities, as opposed to individual men, to liability for violation of norms   IIT v Vencap, 519 F.2d 1001, 1015 (2d Cir. 1975).   Filartiga v Peña-​Irala, 630 F.2d 876 (2d Cir. 1980); see Richard White, Breaking Silence: The Case That Changed the Face of Human Rights (Washington:  Georgetown University Press, 2004); Jeffrey Davis, Justice across Borders:  The Struggle for Human Rights in U.S. Courts (Cambridge: Cambridge University Press, 2008). 20   Kiobel v Royal Dutch Petroleum, 621 F.3d 111, 118 (2d. Cir. 2010). 21   The court acknowledged that some treaties, such as Convention against Transnational Organized Crime, allowed for corporate liability in other domains. 18

19

samuel moyn   311 of customary international law. As Judge Cabranes cited from the judgment of Hermann Goering, ‘[c]‌rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’. Nor had anything changed in the meantime, Cabranes insisted. The Rome Statute forming the International Criminal Court, most notably, had made clear that it contemplated coverage of natural persons only, excluding corporate liability for crimes.22 Cabranes did acknowledge that the London Charter (the Allied agreement authorizing the Nuremberg proceedings) had allowed for the declaration of certain organizations as criminal, but it was not in order to assess liability. Even in the so-​called successor trials, while corporate executives were pursued by tribunals, it was not the case that the corporations themselves, including the ‘notorious’ example of the chemical conglomerate I. G. Farben, were ever held liable. As Cabranes concluded:  ‘[i]n declining to impose corporate liability under international law in the case of the most nefarious corporate enterprise known to the civilized world, while prosecuting the men who led I. G. Farben, the military tribunals established under Control Council Law No. 10 expressly defined liability under the law of nations as liability that could not be divorced from individual moral responsibility’.23 On the three-​judge panel at this stage of the case, another judge, Pierre Leval, vehemently disagreed with the majority. His main contention was that international law was the wrong place to look for a norm of corporate liability; no more than the ATS contemplated that the law of remedies must come entirely from international sources would it require finding a norm of corporate liability in international sources.24 But Leval certainly took it upon himself to dispute the majority’s historical findings—​that the Nuremberg past supported no norm of corporate liability for human rights violations. For one thing, Leval insisted, Nuremberg and other historical examples that the majority cited had been criminal proceedings, and it was unsurprising that no norm of civil liability for individuals or corporations flowed from it. Thus, the absence of evidence of civil liability for corporations at Nuremberg and elsewhere could not count as the evidence of absence of a customary law norm. (To this point, Cabranes responded that there had to be evidence somewhere if not in the historical record, for customary norms require proof of consistent State practice and opinio juris, and some sort of inquiry into whether these exist is required; citing an expert affidavit in a related case by University of Cambridge Professor James Crawford, however, Cabranes continued that civil liability for human rights violations had never been imposed anywhere even once.)25 It was more important, 22   Kiobel v Royal Dutch Petroleum, p. 119, citing The Nurnberg Trial (United States v Goering), 6 F.R.D. 69, 110 (Int’l Military Trib. at Nuremberg 1946). 23   ibid., p. 134. 24   A further technical claim in the litigation was that what entities could be subject to suit had to be viewed as a merits question rather than a jurisdictional question. 25   Kiobel v Royal Dutch Petroleum, pp. 170–​4, 146–​7, 143–​4.

312    legal history as a source Leval contended, citing the judgments in two of the critical Nuremberg Military Tribunal cases, that in the 1940s there had been consensus that legal persons such as corporations, and not merely natural ones, were in principle accountable under international law: ‘private individuals, including juristic persons . . . [can be] in violation of international law’.26 (Of course, this did not mean that those trials had actually imposed liability on corporations, either civilly or criminally.) At this stage of the cases no serious historical research—​other than a few books from the library summoned at short notice—​was mentioned by advocates or judges, and no professional historians were involved. It was a good illustration of how lawyers, unbound by the professional constraints of historians, could so easily reach an opposite conclusion in relying on superficial information about the same event. But that changed dramatically after the Second Circuit judgment was confirmed by that court’s entire complement of judges and the decision was subsequently appealed to the US Supreme Court. On the premise that historical knowledge might affect how Supreme Court justices interpreted the customary law norms for whose violation the ATS was intended to provide a remedy, two separate teams of historians joined the litigation at this point in order to struggle over Nuremberg’s legacy. One side—​styled as experts with ‘particular knowledge about Nuremberg-​era jurisprudence’, though that was more true of some than of others—​argued valiantly that international law allowed for the imposition of civil liability against corporations. ‘An accurate understanding of the Nuremberg-​era jurisprudence and Nuremberg trials’, the group’s brief read, ‘is critical to the question of whether corporations and organizations may be held liable under international law.’27 The other side, made up of a different group of experts, entered the case in criticism of both sides of the argument, and in particular to rebut the historians claiming ‘that the Nuremberg trials embodied a growing norm of corporate accountability’.28 As the first group presented the historical evidence, the victorious Allies had certainly intended to subject legal persons generally, and not merely natural persons, to their authority. But the group’s strongest argument was that, while of course Nuremberg did not impose civil liability on corporations, it acted in an even more interventionist spirit pursuant to international law that clearly 26   ibid., p.  180, citing Trials of the War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, 15 vols (Washington: Government Printing Office, 1949–​53), 8, p. 1132. 27   Brief of Amici Curiae Nuremberg Scholars Omer Bartov and others, pp. 1–​2, Kiobel v Royal Dutch Petroleum, 133 S. Ct. 1659 (2013) (No. 10-​1491), , accessed 3 September 2016. They had previously filed a brief in support of the Supreme Court’s decision to take the case. 28   Brief of Amici Curiae Nuremberg Historians and International Lawyers in Support of Neither Party, p. 4, Kiobel v Royal Dutch Petroleum, 133 S. Ct. 1659 (2013) (No. 10-​1491), , accessed 3 September 2016.

samuel moyn   313 proved that legal accountability is available. Indeed, in the case of I. G. Farben the Allies had gone so far as to abolish the corporation, a political remedy available under the international law of the time; and if this was the case, then clearly the Nuremberg past could not stand for the proposition that a much lesser remedy was unprecedented. Cabranes’s opinion for the majority left the impression that corporations had been to all intents and purposes immune at Nuremberg, but the reverse was true; that they were not held legally liable either criminally or civilly reflected the fact that political responses—​up to and including corporate dissolution—​were chosen, under the colour of international law (specifically, the international law of occupation). A host of other formal Nazi organizations, such as the Schutzstaffel (SS), had been deemed criminal at Nuremberg after the fact of their elimination; that I. G. Farben had been dissolved as well probably fitted the same picture, illustrating that entity liability extended to business organizations: ‘by the time these organizations were declared to be criminal by the I[nternational] M[ilitary] T[ribunal]’, the first group of experts insisted, ‘they had been punished under international law because the Allies had already imposed upon them through international law the most severe punishment of all:  juridical death through dissolution as well as the confiscation of all their assets.’ In his hasty inference that corporations had been subjected to legal process at Nuremberg and its successors only insofar as the true goal was individual accountability, the group observed, Judge Cabranes must have been ‘unaware that, by the time of the tribunal, the Control Council had already destroyed the Nazi organizations’.29 None of this was wholly false, the second group responded in turn. But it was profoundly misleading. Just as according to the first group Cabranes had read the evidence out of context to dispel the spectre of corporate responsibility, so the second group charged that now that first group had committed equal and opposite distortion in order to make the prospects of accountability materialize. It was true that the London Charter had legally authorized sanctions against ‘organizations’, but this was not intended to cover corporate entities. In fact, corporate liability of any sort had never occurred to prosecutors to consider in the International Military Tribunal; one prosecutor raised the possibility as the Nuremberg Military Tribunals or successor trials were in preparation, but his suggestion was not followed. Indeed, ‘corporate liability was neither supported nor assessed by anyone else on a staff of well over a hundred articulate lawyers who circulated memos in multiple copies on nearly every topic’. In any event, economic actors tried as individuals were excused or treated lightly, suggesting that punishing the economic element of National Socialist imperialism could not have been a penal priority either.30

  Brief of Nuremberg Scholars, pp. 17, 33.   

29

  Brief of Nuremberg Historians, p. 11.

30

314    legal history as a source More interestingly, these scholars situated Nuremberg within the far larger theory of ‘transitional justice’ of the time, in which the New Deal beliefs of central American actors about the proper relationship between corporations and democracy provided the general framework under which they dealt with businesses under occupation authority. Corporate treatment in general, and the dismemberment (not dissolution) of I. G. Farben in particular, may have been undertaken pursuant to the international law of occupation, the second group allowed, but what most mattered to the Allied philosophy was restoring a healthy relationship of economy and society—​which actually featured a wide berth for corporations, not a generally punitive attitude. There was nothing, the second group insisted, like ‘(i) consistent adverse treatment of German business, (ii) administered with an intent to punish, (iii) based on wrongdoing, (iv) that violated specifically legal standards’. True, I. G. Farben had been dismembered (though its elements, like Bayer, were left and still remain alive and well), but even if this decision was legal under occupation authority, it was hardly made on the grounds that the firm had violated international law, let alone because it was as deeply involved as it was with Nazi atrocities: ‘[i]‌ts complicity with crimes against humanity or Auschwitz slave labor or poison gas was only being pieced together in November 1945, but more important it was irrelevant to the decision to dissolve’.31 Altogether, it was dubious to infer a commitment to subjecting corporations to legal accountability for international law violations from the Nuremberg-​era record.

V.  Analysing the Historical Debate As David Kennedy argues, it is often much more interesting to drop inquiry into ‘who is right’ in international legal dispute in order to understand the contention of experts in the field stages—​in this case, the contention of historical experts swept into ongoing litigation.32 In fact, since its rediscovery the ATS has always provided a particularly vivid instance of how projective historical claims about the past can become, precisely because essentially nothing is known about what the act was originally for. But even when more recent mid-​twentieth-​century history became relevant to the statute’s application because the pursuit of corporate defendants seemed to   ibid., pp. 27, 34.  David Kennedy, ‘Lawfare and Warfare’, in James Crawford and Martti Koskenniemi, eds, Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012), 158–​83, 173, and the fuller theory in David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton: Princeton University Press, 2016), and Samuel Moyn, ‘Knowledge and Politics in International Law’, Harvard Law Review 129 (2016): 2164–​89. 31

32

samuel moyn   315 require it, the political function of interpretation in specific professional communities played even more of a role. That it was so difficult—​though not impossible—​to posit an emergent norm of corporate liability after World War II made vivid that a series of factors transformed the setting of interpretation of the customary law that Nuremberg might have bequeathed to the world. The Filartiga decision occurred in the immediate aftermath of the global human rights revolution of the 1970s, and it was no accident that it was in a novel sociopolitical context, in which a new sort of human rights movement had recently appeared, that the forgotten and unused statute was suddenly rediscovered and mobilized to new ends.33 Thirty years later, in the course of a more general turn of the human rights movement to non-​State actors in general and corporate malfeasance in particular, Nuremberg provided the most plausible source for the search for a customary norm of accountability. For many US members of the human rights movement, achieving legislative statement of new norms—​let  alone new international treaty law—​seemed so impossible that a reinterpretation of an extant statute miraculously already on the books made more strategic sense. The history this political strategy produced, however, was generally very inadequate from the perspective of professional historiography. In particular the political context incited advocates to return to a Nuremberg mainly of their own—​and our own—​imagination. Indeed, it is an image that has become so pervasive both because of the immense cultural force of belated global memories of the Holocaust and thanks to the turn of the human rights movement to criminal accountability through international courts, a turn that has erected Nuremberg into its most inspiring precedent.34 For advocates who invoked Nuremberg as part of ATS litigation, as more generally in the turn to ‘impunity’ for atrocity, it is a Nuremberg that had been made in retrospect an early human rights trial. That the IMT had been centrally an aggression rather than atrocity trial, and even that the successor trials did not do a great deal to shift its priorities in this regard, is a truth that professional historians preserve, but that comes near to being reversed in advocacy historiography, such as that produced by the search for corporate accountability in the history of customary international law.35 33  Samuel Moyn, The Last Utopia:  Human Rights in History (Cambridge:  Harvard University Press, 2010); Jan Eckel and Samuel Moyn, eds, The Breakthrough:  Human Rights in the 1970s (Philadelphia: University of Pennsylvania Press, 2013). 34   See e.g., Belinda Cooper, ed., War Crimes: The Legacy of Nuremberg (New York: TV Books, 1999). 35   I  cannot defend these claims here comprehensively, but on the negligence of the Holocaust at Nuremberg, see Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (Oxford: Oxford University Press, 2001); on improvements at the successor trials, see Lawrence Douglas, ‘From IMT to NMT: The Emergence of a Jurisprudence of Atrocity’, in Kim C. Priemel and Alexa Stiller, eds, Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (New York: Berghahn Books, 2012), 276–​95; and on the recent turn of the human rights movement to perpetrator accountability, see Karen L. Engle, ‘Anti-​Impunity and the Turn to Criminal Law in Human Rights’, Cornell Law Review 100 (2014): 1069–​1127.

316    legal history as a source But it was also the case that the opponents of corporate liability were driven to find their own usable past. For example, Judge Cabranes, after having been one of the youthful members of the human rights movement himself, had since become remarkably critical of it. It was perfectly true, as human rights advocates suspected, that the notion that Nuremberg had simply ignored corporations to the point of making them effectively immune from intervention was equally a product of short-​term political imperatives, not so much or not only of legal propriety. While the judges rendering the decision were not advocates, they were willing to take sides for and against the agenda of the human rights movement as it has crystallized in our time. Celebrating ATS as ‘an important advance of civilization’, Judge Leval could plausibly worry that his colleague Judge Cabranes was in league with those conservatives who were now attempting to cut off ‘unwarranted meddling by US judges in events that occurred far away’ and to halt the use of the statute in its tracks.36 There were advocates on both sides, then, of the politics of historical knowledge of Nuremberg, and judges with an ambiguous but definite relationship to their ongoing dispute. But there were also different professionals involved who answered to the name of historians rather than lawyers. The picture is not neat, as some professional historians signed the first brief (which after all purported to present their expertise), while signatories of the second included some professors of international law who had no special relationship to the discipline of history. And it is interesting that both in the US national context and in atrocity trials since the 1980s, historians have entered court proceedings as professional experts in ways that defeat any absolute role distinction between human rights advocacy and disciplinary historiography.37 Yet the most interesting fact, all things considered, remains how distant the roles of advocate and scholar are in general and in this litigation, even in an age when people who train as international lawyers have begun to write history, and professional historians now take an interest in the trajectory of international law. The Kiobel litigation, with its rival briefs, illustrates this persisting divide between the use of history for legal advocacy and the alternative recourse to the past as part of a different professional politics. In this instance, the first brief conformed unswervingly to the epistemology of the advocate, while the second conformed to that of the historian. It was not the

36   Kiobel (2d. Cir.), 621 F.3d at 150. See also Cabranes’s remarks, commenting on my own historical work, including on his youthful exposure to the human rights movement, in José A. Cabranes, ‘Customary International Law:  What It Is and What It Is Not’, Duke Journal of Comparative and International Law 22 (2011): 143–​52. 37   See e.g., Henry Rousso, The Haunting Past: History, Memory, and Justice in Contemporary France, trans. Ralph Schoolcraft (Philadelphia: Temple University Press, 2002); Richard J. Evans, ‘History, Memory and the Law: The Historian as Expert Witness,’ History & Theory 41 (2002): 326–​45; Michael Grossberg, ‘Friends of the Court: A New Role for Historians’, American Historical Association Perspectives, November 2010, , accessed 25 August 2017; David J. Rothman, ‘Serving Clio and Client: The Historian as Expert Witness’, Bulletin of the History of Medicine 77 (2003): 25–​44.

samuel moyn   317 case that the first failed to take some uncontroversial points as immune to ideological work; thus, for example, it could not contend that Nuremberg had ever actually imposed liability on corporations, even as it read the evidence to give rise to the impression that Nuremberg actors would have been glad to do so. It was not the case that the second brief achieved an ‘objective’ stance on the events either, whatever that might mean; indeed, the brief expressed sympathy with the cause of the human rights movement, and merely drew a line beyond which disciplinary probity did not allow responsible support for that movement’s agenda to extend. The sort of detachment that the second group of experts strove to achieve was not that of judicial impartiality; it was that of professional commitment to context and an avoidance of cause-​driven history. Above all, the group acknowledged the sheer messiness of the past that made it impossible to achieve the clean result that advocates on both sides desired: ‘[i]‌t must be stipulated’, the experts noted, ‘that almost any generalization about this period has to be offered tentatively and then qualified and amended, because there was no single occupation policy regarding business interests or economic institutions or goals or how to achieve them’.38 That the past was as refractory as it was in this case—​and is in most cases—​may be one reason that the Supreme Court ultimately changed the question it had been supposed to answer in order to decide the case on other and non-​historical grounds.39 Indeed, once it asked whether the statute should have extraterritorial scope, historical inquiry became even more fruitless.

VI.  Conclusion: How the Past Matters in International Law In a prominent new book that included a discussion of the Kiobel litigation, US Supreme Court Justice Stephen Breyer concluded: ‘[t]‌he Court can do its best trying to shape human rights litigation in the United States through its interpretations of the ATS, as it has done. But  .  .  .  the statute is old, general, and silent in respect to many critical questions.’40 Breyer went on to suggest that the US Congress should simply fix the statute. Yet the age and open texture of the ATS arguably   Brief of Nuremberg Historians, p. 27.   In its October 2017 term, the US Supreme Court was considering corporate liability anew under the ATS in Jesner v Arab Bank, and the briefs contained analogous historical contention as before. 40   Stephen Breyer, The Court and the World: American Law and the New Global Realities (New York: A.A. Knopf, 2015), p. 164. 38 39

318    legal history as a source made endemic features of the politics of knowledge in the law more visible, and no amount of precaution can ever entirely suppress them. Like law generally, international law is bequeathed from the past. Yet knowing how is not straightforward and often depends on present contention. Insofar as history is an indirect source of international law, there is no way to save it from that permanent and ongoing contention. That contention is kept in bounds by social forces such as professional consensus, but the fight over outcomes almost never resolves into unanimous agreement. It would be as nonsensical to ask whether the past matters as to fail to acknowledge that the only people to whom it matters are those alive now—​or yet to be born—​whose lot is eternal struggle over what to make of their inheritance, legal or otherwise.

Research Questions • Are there factors beyond professional consensus that constrain interpretation of the past, whether by international lawyers or trained historians? • What theory does the contention of experts in the case of Kiobel v Royal Dutch Petroleum suggest for history as a source of international law?

Selected Bibliography Ginzburg, Carlo, The Judge and the Historian: Marginal Notes on a Late-​Twentieth-​Century Miscarriage of Justice, trans. Anthony Shugaar (London: Verso, 1999). Kelly, Alfred H., ‘Clio and the Court:  An Illicit Love Affair’, Supreme Court Review 1965 (1965): 119–​58. Kennedy, David, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton: Princeton University Press, 2016). Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) (reissue with a new epilogue). Moyn, Samuel, ‘Knowledge and Politics in International Law’, Harvard Law Review 129 (2016): 2164–​89.

Part  I I

THE THEORIES OF THE SOURCES OF INTERNATIONAL LAW

Section   V I I I

SOURCES IN LEGAL-​P OSITIVIST THEORIES

Chapter 15

SOURCES IN LEGAL-​P OSITIVIST THEORIES LAW AS NECESSARILY POSITED AND THE CHALLENGE OF CUSTOMARY LAW CREATION

David Lefkowitz

I. Introduction The debate about positivism in general legal theory or in the international legal scholarship manifests so many different, if not conflicting, meanings of positivism—​ even among legal positivists themselves—​that the debate about legal positivism has proved almost unfathomable and unintelligible.1 No other approach to theorizing international law is more closely associated with and dependent upon the development of an account of its sources than is positivism. The explanation for this is a simple and familiar one: if there is any thesis regarding   Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011), p. 26. 1

324    sources in legal-positivist theories law that we can uncontroversially associate with the label ‘legal positivism’, it is the view that a norm’s status as law, its membership in a legal order or system, is solely a matter of its social source without regard for its merit. Whatever their differences (and as the above epigraph attests, they are many), all legal positivists maintain that law is necessarily posited, made, or created, not discerned in the natural order of things or deduced from principles knowable a priori. What counts as a law-​creating act in any given legal system depends on the practice of its legal officials; the sources of law are, in this sense, a contingent or arbitrary matter. Commitment to even this relatively modest claim brings with it substantial argumentative burdens. Specifically, it requires international legal positivists to offer the following: (a) a defence of the claim that law must have a social source; (b) an argument outlining the possible sources of law—​that is, those act-​types that can count as positing or creating law; and (c) an argument defending or rejecting the existence of specific sources of law in a specific legal system; e.g. an assessment of the claim that general principles of law serve as a source of international law. Clearly a comprehensive treatment of these issues requires more than a single book chapter, or for that matter a single book. Instead, the present work offers partial treatments of the first two of the argumentative tasks mentioned as incumbent upon international legal positivists. I begin by considering the case for legal positivism; again, understood as the relatively modest thesis that the existence of law is a matter of its social source, regardless of its merits. Arguments for this thesis are of three types: descriptive (or social scientific), normative (or ethical), and conceptual (or metaphysical). I  aim not to adjudicate between these arguments but to demonstrate that what follows for the sources of international law from the commitment to positivism depends to a considerable extent on the specific defence offered for accepting it as an account of the nature of law, including international law. In section III: Customary International Law Creation: Orthodox and Informal Legislation Accounts, I focus specifically on the possibility of customary international law. Though few dispute that custom can, and does serve as a source of international law, there is widespread disagreement regarding the precise mechanism whereby customary legal norms come to exist. If they are to defend custom as a source of international law, positivists owe us a plausible account of how customary rules are made; i.e. what acts count as the positing or making of customary norms, and how they do so. I argue that neither the orthodox account of customary law formation nor those accounts in which judges make law based on a belief in a broad consensus regarding the desirability of there being such a law do so. The former fails to identify an act of positing or creation at all, while the latter is better characterized as informal legislation than as custom formation.2 I then 2   To be clear, I maintain only that the process of custom (and so customary law) formation differs importantly from judicial legislation, without denying that the latter can serve as a source of law, or taking a position on whether it does or should serve as a source of international law.

david lefkowitz   325 sketch a third approach that characterizes customary norms as elements of a community’s normative practice, and custom-​formation as normative interpretations of patterns of behaviour that are successfully integrated into that normative practice. This account avoids the chronological paradox in custom formation and accounts for various features commonly associated with custom, such as its binding agents even in the absence of consent. But is it compatible with legal positivism? I offer a preliminary argument for an affirmative answer, focusing particularly on its compatibility with the rationales Hans Kelsen and Joseph Raz offer for legal positivism.

II.  Why Positivism? One approach to defending positivism argues that it fares better than its rivals as a descriptive account of law, or at least law as understood in modern Western societies and by those living in other societies whose education has imbued them with a modern Western understanding of law. Positivism, advocates of this approach contend, accurately reflects the distinctions between law, morality, and policy that officials and subjects of modern Western legal orders draw.3 They point to the commonplace nature of claims to the effect that there ought to be a law as evidence that a norm’s merits are not sufficient to render it legal, and to the practice of judges rendering decisions as a matter of law while imploring legislators to change the law as evidence that a norm’s demerits are not sufficient to render it illegal.4 Furthermore, some maintain that positivism’s compatibility with the social scientific study of law’s causal contribution to the production of various outcomes strengthens its claim to properly characterize legal validity.5 Relatedly, the descriptive case for legal positivism avoids any controversial metaphysical commitments, not least over the existence of an objective and universal morality.6 All these claims are contested, of course. For example, some theorists of international law draw on social scientific theory and empirical research to argue that legal validity is at least partly a function of a norm’s effectiveness in guiding the conduct

  H. L. A. Hart, The Concept of Law, 2nd edn (Oxford: Oxford University Press, 1994); Brian Leiter, ‘Why Legal Positivism (Again)?’, University of Chicago, Public Law Working paper No. 442 (2013), , accessed 25 June 2016; Leslie Green, ‘Legal Positivism’, in Edward N. Zalta, ed., The Stanford Encyclopedia of Philosophy (Fall 2009 edn), , accessed 25 June 2016. 4   That is, frequent reliance on the distinction between lex lata and lex ferenda is taken to provide evidence of its existence. 5 6   Leiter, ‘Why Legal Positivism’, p. 12.   See e.g., Hart, The Concept of Law, pp. 253–​4. 3

326    sources in legal-positivist theories of international legal subjects, rather than its social source.7 Instead of solidifying positivism as a characterization of law, then, social scientific study may well lead to its supersession. A more fundamental challenge to the descriptive approach to justifying positivism is the claim that it is impossible to identify a pre-​theoretical and uncontroversial data set that can serve as a common object of attempts to theorize the nature of law. If these sceptics are right, the argument for positivism will necessarily turn on an argument for why it is better to adopt such an account of the nature of law than any of its rivals. Such arguments take two forms: those that defend positivism on the ground that such an understanding of law best serves the end of advancing justice, and those that maintain that only positivism can account for law’s autonomy and authority. The normative or ethical case for positivism comprises several distinct arguments. First, some positivists allege that distinguishing between a norm’s status as law and its legitimacy or justice can foster a critical attitude toward legal authority and so serve as a check on one way in which power is exercised.8 Positivism may also facilitate (morally) better outcomes by forcing legal officials to openly confront and publicly adjudicate conflicts between different moral aims, such as the realization of retributive justice and fidelity to principles of legality in the criminal law.9 Debate over the proper course of action in such cases will likely be more fruitful, and perhaps also garner greater de facto legitimacy whatever its resolution, if it is not construed simply as a matter of identifying what the law is. Secondly, by characterizing law as necessarily a product of human creation, positivism may promote efforts to reform particular legal systems. Moreover, the evaluation of calls for reform, or resistance to it, requires a clear understanding of what the law currently is distinct from a judgement of its merits; absent such an understanding reformers and defenders of the status quo may frequently speak past one another.10 Thirdly, some may defend positivism on pragmatic grounds, arguing that at least in certain 7   See e.g., Jutta Brunnée and Stephen J. Toope, ‘International Law and Constructivism: Elements of an Interactional Theory of International Law’, Columbia Journal of Transnational Law 39 (2000): 19–​ 74; Harlan Grant Cohen, ‘Finding International Law: Rethinking the Doctrine of Sources’, Iowa Law Review 93 (2007): 65–​129. 8   See Hart, The Concept of Law, p. 210. 9   ‘If inroads have to be made on this principle [nulla poena sine lege] in order to avert something held to be a greater evil than its sacrifice, it is vital that the issues at stake be clearly identified. A case of retroactive punishment should not be made to look like an ordinary case of punishment for an act illegal at the time.’ Hart, The Concept of Law, pp. 211–​12. Compare the majority opinion in the Tadić case, Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY–​ 94–​1–​AR72, Appeals Chamber (2 October 1995), with the explicit discussion of the conflict between retributive justice and legality in the operation of international criminal law in Larry May, Crimes against Humanity (Cambridge: Cambridge University Press, 2009), pp. 207–​11; David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 569‒88, 581–​7. 10  D’Aspremont, Formalism, pp. 34–​5.

david lefkowitz   327 environments law can serve as an effective means to realizing certain desirable ends only if its validity is distinguished from its merits. Benedict Kingsbury argues that this type of normative argument undergirds the orthodox international legal positivism of Lassa Oppenheim.11 A final category of arguments for legal positivism comprises those that defend it on conceptual or metaphysical grounds. For example, orthodox international legal positivism follows from the conjunction of the following claims: (i) States are free and equal (moral) agents; (ii) where international law exists it is necessarily binding, i.e. it necessarily enjoys authority over its subjects, who are under a correlative duty to obey it; and (iii) the authoritative or binding nature of international law can be reconciled with the freedom and equality of States only via their consent to be bound by it. Genuine international law, then, can consist of nothing other than those positive rules to which States have explicitly (in the case of treaties) or implicitly (in the case of custom) agreed to abide. Unlike Oppenheim’s normative argument, this defence of positivism does not rest on a hypothesis regarding the conditions for an effective legal order, but is simply a consequence of a proper appreciation of the nature of law and the (moral) standing of States. And since this argument employs conceptual and meta-​ethical premises, pointing to its failure to characterize as such various norms generally taken to be international law will not refute it. All three of its premises are suspect, however. For example, while it may be true that as a type of practical authority law necessarily claims legitimacy, it need not follow that law enjoys the authority it claims over all, or even any, of its subjects.12 Furthermore, consent may be neither necessary nor sufficient to reconcile law’s authority over an agent with that agent’s status as free and equal. It is not necessary if communitarian claims of membership and identity enjoy a justificatory priority to claims grounded in autonomy, or if respect for other agents’ status as free and equal requires submission to a common order of public law. It is not sufficient if, in contrast to consent to the performance of a specific act, consent to authority marks not the exercise of autonomy or self-​governance, but its abdication.13 Joseph Raz offers a conceptual argument for positivism that takes as its starting point law’s self-​image as a practical authority. Law necessarily claims a right to its subjects’ deference, to their guiding their conduct according to its judgement regarding what they have reason to do or not do, an idea that Raz spells out in terms of law purporting to provide its subjects with content-​independent and exclusionary reasons for action.14 Law is legitimate, its claim to authority justified,   Benedict Kingsbury, ‘Legal Positivism as Normative Politics:  International Society, Balance of Power, and Lassa Oppenheim’s Positive International Law’, European Journal of International Law 13 (2002):  401–​36, 433–​4 (italics added). See also Prosper Weil, ‘Towards Relative Normativity in International Law?’, American Journal of International Law 77 (1983): 413–​42. 12   See the discussion of Joseph Raz below. 13   See Joseph Raz, ‘The Problem of Authority: Revisiting the Service Conception’, Minnesota Law Review 90 (2006): 1003–​44, 1038–​40. 14   Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986). 11

328    sources in legal-positivist theories if its subjects are more likely to act on the reasons that apply to them by deferring to the law than by acting on their own judgement regarding what they have most reason to do.15 This condition may not be met, and so law may lack the legitimacy it claims. Nevertheless, the possibility of law playing this mediating role between agents and the reasons that apply to them depends on its subjects being able to identify what the law is without deliberating on those reasons. Law’s social source(s) make it possible for law to play this mediating role, as they enable agents to identify what the law is by appeal to its origin in some agent’s positing, e.g., that X is not to be done. Thus, for Raz positivism follows from the (or our) concept of law and an account of practical rationality; i.e. a metaphysical account of human nature and of reasons. Kelsen’s defence of positivism is grounded in the characterization of law as essentially normative, as necessarily composed of claims or ought-​statements, and the metaphysical thesis that fact and value—​Is and Ought—​are categorically distinct and so irreducible to one another. Given their nature as claims or prescriptions, legal norms exist by virtue of some act of claiming or prescribing; that is, by virtue of being posited. Specifically, norms exist as law by virtue of their creation according to a higher-​order norm on law-​making, whose existence in turn may depend on its being authored according to a still higher norm on law-​making. Vis-​à-​vis legal argument, the making of legal claims and counter-​claims, this hierarchy terminates in a historically first constitution. Once this highest-​order positive norm is reached it is not possible to justify a legal claim by appeal to some higher-​order positive norm. Instead the validity of the historically first constitution follows from it serving as a necessary presumption for the existence of the legal system in question (i.e. for the validity of all ‘lower-​order’ legal claims). Note, however, that while it is possible only on the supposition of a Grundnorm, genuinely legal argument itself consists solely of appeal to norms that count as law by virtue of their source (i.e. their being posited in accordance with valid rules on law-​creation), regardless of their merits. Several conclusions may be drawn from even this brief overview of the range of different arguments for positivism. First, what follows from the adoption of legal positivism depends to some extent on a theorist’s reasons for doing so. Those who defend orthodox legal positivism on normative or conceptual grounds, for example, must either deny the possibility of any source of international law other than treaty and (perhaps) custom, or argue—​implausibly, in my view—​that every act of law-​making by treaty organizations is ultimately consent-​based because it is traceable to States’ consent to the organizations’ creation. In contrast, theorists like   This is only a rough characterization of Raz’s normal justification thesis, but it suffices for my purposes here. 15

david lefkowitz   329 Kelsen or those who argue for positivism on the ground that it will spur a beneficial critical attitude to law can acknowledge the possibility that treaty organizations enjoy law-​making authority without having to trace every exercise of that authority back to State consent. Similarly, positivists may also divide on the question of whether global administrative law qualifies as (international) law properly so-​called, with the answer turning at least in part on the rationale for adopting a positivist understanding of law.16 A second, related, implication is that attempts to disprove positivism need to be carefully tailored to specific arguments offered in defence of that thesis. Consider the claim that we will do better overall at advancing justice by denying the legality of egregiously evil norms than by granting their legality but contesting their legitimacy. If true, it provides a compelling objection to the normative argument for positivism, but it in no way weakens either Raz’s or Kelsen’s arguments for it. Finally, attention to the specific rationales for positivism may contribute to the elaboration of different criteria for assessing or ranking possible sources of international law. For example, we might employ Raz’s account of law’s legitimacy to defend the superiority of multilateral treaties to custom on the grounds that the superior information gathering and deliberative qualities of the former method make it more likely that the resulting law successfully mediates between international legal subjects and the reasons that apply to them.17 Or we might reach the same conclusion regarding the superiority of treaty over custom on the basis of a normative argument for positivism that emphasizes the contribution it makes to the rule of law.18 Clearly much more needs to be said in defence of legal positivism. Rather than do so here, however, I propose to shift the focus of discussion to the second of the three argumentative tasks I identified at the outset as incumbent upon the legal positivist, namely the identification of the possible sources of law. Specifically, I turn in the remainder of this chapter to a consideration of what is widely viewed to be not only a possible but an actual source of international law, namely custom. My aim is twofold: first, to defend the superiority of a normative practice account of custom and custom-​formation to both the orthodox and informal legislation accounts, and secondly, to present a preliminary argument for its compatibility with certain versions of legal positivism.

16   Compare Benedict Kingsbury, ‘The Concept of “Law” in Global Administrative Law’, European Journal of International Law 20 (2009): 23–​57, and Alexander Somek, ‘The Concept of “Law” in Global Administrative Law:  A  Reply to Benedict Kingsbury’, European Journal of International Law 20 (2010): 985–​95. 17   See David Lefkowitz, ‘Legitimacy of International Law’, in David Held and Pietro Maffettone, eds, Global Political Theory (London: Polity, 2016), 98–​116. 18  D’Aspremont, Formalism, pp. 35–​6.

330    sources in legal-positivist theories

III.  Customary International Law Creation: Orthodox and Informal Legislation Accounts On what is commonly labelled the orthodox view, customary international law (CIL) consists in the union of two elements: usus, or State practice, and opinio juris, understood as ‘the belief that this practice is rendered obligatory by the existence of a rule of law requiring it’.19 Specific norms of CIL exist by virtue of the prevalence of these two elements among States, i.e. by virtue of most States either engaging in the practice in the belief that it has a particular legal valence or, in the case of allegedly conflicting practice, denying its performance or the characterization of the conduct in question as an instance of the practice with this particular legal valence. Perhaps the least controversial claim that might be made on behalf of the orthodox account of custom is that the presence of both elements provides compelling evidence for the existence of a norm of CIL.20 Disagreement quickly follows, however, with some theorists and legal officials arguing that one or the other of these two elements suffices for the identification of a norm of CIL, at least in certain circumstances or vis-​à-​vis norms with certain content. Matters become even more complicated when attention shifts from the epistemological question of identifying norms of CIL to the ontological question of creating new norms of CIL. The orthodox account seemingly confronts a paradox as it holds that to create a new norm of CIL mandating some practice States must act in the belief that international law already requires the practice in question. Yet until the process of customary law formation plays out successfully, that belief will be false. To avoid the conclusion that this chronological paradox renders the creation of CIL impossible, advocates of the orthodox view argue that it can be (and

19   North Sea Continental Shelf Cases (Federal Republic of Germany/​Denmark; Federal Republic of Germany/​Netherlands) (Judgment) [1969] ICJ Rep 3, 44, para. 77. 20   See e.g., the draft conclusions on the identification of customary international law in the second and third reports prepared on behalf of the International Law Commission (ILC): ILC, Second Report on the Identification of Customary International Law by Michael Wood, Special Rapporteur, 22 May 2014, UN Doc. A/​CN.4/​672; ILC, Third Report on the Identification of Customary International Law by Michael Wood, Special Rapporteur, 27 March 2015, UN Doc. A/​CN.4/​682. Note that in 2013 the ILC changed the title (and so the scope) of this project from ‘formation and evidence of customary international law’ to ‘identification of customary international law’. My primary concern in what follows is with the ontological question suggested by the original title, i.e. customary international law’s mode of existence, creation, and extinction, and only secondarily and indirectly with the epistemic question of how to identify CIL.

david lefkowitz   331 is) undertaken on the basis of a false belief regarding the legal status of the practice in question.21 Some critics reject the orthodox account of custom formation as implausible, while others reject it on the grounds that it conflicts with a fundamental requirement of legitimacy, namely that law be created transparently.22 For legal positivists, however, the most serious shortcoming with the orthodox account of custom formation concerns the absence within it of any act of positing or norm creation.23 The fact that States believe that a legal norm exists that requires them to behave in certain ways, even when conjoined with the fact that States generally behave in those ways, does not suffice to make it the case that the legal norm actually exists. Beliefs are facts (i.e. claims that A believes F are claims about how the world is), but one cannot derive an Ought, such as the normative claim constituted by a specific customary rule, from an Is. A widespread belief in the legal valence of some type of conduct may suffice to justify a descriptive or predictive claim. From a standpoint within the normative practice of giving legal reasons to justify or critique conduct, however, the mere fact that a certain act type is believed to be legally required does not provide the kind of claim needed to substantiate the assertion that subjects of that legal system should perform acts of that type. A number of theorists argue that in the case of customary law formation opinio juris should be understood not as the belief that a customary legal norm C already exists, but that it should exist.24 This change alone does not address the gap between belief and norm creation, however.25 One solution is to treat CIL as judge-​made law, with judicial pronouncements of customary legal norms playing a role analogous to the signing and ratification of treaties.26 In both cases a process of deliberation and negotiation among States regarding the desirability of a new legal norm culminates with the positing of an agreement; in the case of treaties, by States themselves, while   See, originally, François Gény, Méthode d’interprétation et sources en droit privé positif, 2nd edn (Paris: F. Pichon et Durand-​Auzias, 1919), pp. 367–​7 1. 22   See e.g., Michael Byers, Custom, Power, and the Power of Rules (Cambridge: Cambridge University Press, 1999), p. 131; John Tasioulas, ‘Customary International Law and the Quest for Global Justice’, in Amanda Perreau-​Saussine and James B. Murphy, eds, The Nature of Customary Law: Legal, Historical, and Philosophical Perspectives (Cambridge: Cambridge University Press, 2009), 307–​35, 321. 23  See Jörg Kammerhofer, Uncertainty in International Law:  A  Kelsenian Perspective (London: Routledge, 2011), pp. 82–​5; Emmanuel Voyiakis, ‘Customary International Law and the Place of Normative Considerations’, American Journal of Jurisprudence 55 (2010): 163–​200, 166, 183. 24  See e.g., Raphael M. Walden, ‘The Subjective Element in the Formation of Customary International Law’, Israel Law Review 12 (1977): 344–​64; John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 238–​45; Brian D. Lepard, Customary International Law: A New Theory with Practical Applications (Cambridge: Cambridge University Press, 2010), pp. 112–​21. 25   As Finnis notes, if the inference from the belief that it is desirable that some pattern of behaviour be subject to an authoritative rule to the conclusion that such a rule exists ‘is not to be a mere non sequitur, [the argument] must have a suppressed practical premise’. Finnis, Natural Law, p. 243. 26   See e.g., Curtis Bradley, ‘The Chronological Paradox, State Preferences, and Opinio Juris’, draft on file with author. 21

332    sources in legal-positivist theories in the case of ‘custom’, by judges attempting to discern as best they can the legal valence (a majority of) States think it desirable to attach to some practice. The key point is that a broad consensus on the desirability of some conduct being subject to a customary legal norm does not suffice to make it so; rather, that outcome obtains only once a judge declares the existence of the customary legal norm in question. I do not deny that international law can be, and perhaps sometimes is, created via the process just described. And clearly such a process is compatible with the positivist thesis that norms qualify as law solely because of their social source. However, I  contend that judge-​made law is better conceived as a type of informal legislation than as an account of customary law formation. The judicial legislation model of law-​creation fails to capture the phenomenology of argument by appeal to customary norm, a phenomenology to which, for all its faults, the orthodox account remains true. Drawing on recent work by Gerald Postema, I now defend an account of custom and custom formation that remains true to the phenomenology of argument by appeal to customary rules while both avoiding the shortcomings of the orthodox account and drawing a categorical distinction between custom and legislation (whether by courts or legislative assemblies).

IV.  The Normative Practice Account of Custom and Custom Formation Custom, Postema writes, exists only if it is ‘instantiated in the behavior of the people allegedly governed by it’.27 While custom is essentially a matter of what members of a community do, what they do cannot be grasped independently of the normative standards that inform their understanding of what they are doing.28 Rather: Instances of behavior exhibit a custom-​relevant regularity only when viewed as deeds—​that is, as socially meaningful. And we can uncover this meaning only from within the practice.29

Why can the meaning that constitutes a pattern of behaviour as deeds only be accessed from within the practice; that is, from the standpoint of a competent participant in it? The answer is that the meaning of what participants do is cashed out 27  Gerald J. Postema, ‘Custom, Normative Practice, and the Law’, Duke Law Journal 62 (2012): 707–​38, 715. 28   ‘Members of a community’ because custom constitutes the original common life of a given community, that which simultaneously constitutes the community and makes individuals members of it. 29  Postema, ‘Custom, Normative Practice, and the Law’, p.  715. See also Voyiakis, ‘Customary International Law’, pp. 180–​5.

david lefkowitz   333 in terms of a normative practice of holding themselves and one another responsible for their conduct. This involves judging certain performances as appropriate or correct and others as mistaken; acting in accordance with these judgements when the occasion arises; challenging conduct that falls short of these judgements; and recognizing appeals to these judgements as either vindicating action or providing valid criticism of it.30 The categorization of behaviour as the exercise or violation of a right, as permissible or obligatory, as respectful or rude, courageous or brazen, etc., is an understanding or interpretation agents arrive at as a result of being enmeshed in a particular, concrete, and historically situated ‘network of reason-​ seeking, reason-​giving, and reason-​using’.31 Custom, then, is not the product of some alchemical combination of usus and opinio juris, of objective behaviour and some subjective mental state. Rather, customs are a normative characterization and categorization of specific patterns of behaviour, an interpretation of those patterns as having a specific normative valence, which members of a group or community employ to hold one another responsible. Customs are realized in such practices; that is their mode of existence, and as a result they cannot be reduced to a conjunction of individual acts and/​or beliefs. The process of custom formation is an interpretive activity, one that takes as its object not words but acts. It involves the attribution of a specific social meaning to a specific pattern of behaviour constituted by the actions of members of the community. Justification proceeds by way of convincing other members of the community that a specific elaboration of a customary norm captures or reflects a way of valuing to which the community’s members are already committed; i.e. one already implicit in, or a ‘natural’ extension of, their existing normative practice. It takes place within the community’s practices of challenge and response. Within that practice, the explicit formulation of the customary norm may be novel, in the sense that a given occasion of challenge or response may be the first one in which an agent spells out a rule with some specific content that he takes to be part of the community’s normative practice. However, we should not confuse the first explicit formulation of the customary norm with its origin, since what an agent does in appealing to a customary norm for justificatory or critical purposes is to argue on the basis of a norm he takes to already exist latent in the community’s practices.32 Success in the deployment of a customary norm to justify or criticize an agent’s conduct is 30  Postema, ‘Custom, Normative Practice, and the Law’, p.  724. See also Postema, ‘Custom in International Law: A Normative Practice Account’, in Perreau-​Saussine and Murphy, eds, The Nature of Customary Law, 279–​306, 288. 31   Postema, ‘Custom, Normative Practice, and the Law’, pp. 716–​17. 32   This is one of several points at which the normative practice account of custom appears quite similar to Savigny’s depiction of custom as an indicator of positive law, by which he means the consensus on proper conduct that exists in the consciousness of the Volk. See Friedrich Karl von Savigny, System of the Modern Roman Law, trans. William Holloway (Westport: Hyperion Press, 1979). Tracing the affinities and differences between the two accounts lies beyond the scope of this chapter.

334    sources in legal-positivist theories entirely a matter of its integration into the community’s practices of holding themselves and one another responsible; that is, their use of it in private deliberation and public argument. This is the sense in which, as Postema writes, ‘the activity of the practice, not any articulated account of it, nor theoretical reconstruction of it’, is authoritative.33 What matters is how community members actually go on, which specific forms of reason-​seeking, reason-​giving, and reason-​using actually get taken up among members of the community. The normative practice account of custom reveals that the shortcoming in the orthodox account lies not with its claim that the creation of a new customary norm requires that community members already believe themselves to be bound by the norm in question. Rather, the orthodox account errs in maintaining that such characterizations must be false, a conclusion drawn from the mistaken belief that specific customary norms come to exist by virtue of most members of a given community believing that they do. Consider the second of these two claims. On the normative practice account, specific customs exist in a given community because its members use them to challenge and respond, and interpretations of the patterns of behaviour in which members of the community are engaged succeed or fail in terms of their acceptance as challenges and responses. It may be true that customary norm C is a customary norm of this community, and members of the community may believe it is, but the truth of the later claim does not account for the truth of the former. Rather, the normative practice composed in part of norm C warrants the belief by members of the community (and others) that customary norm C exists as a norm of their community. In short, use of the norm warrants belief in its existence, rather than belief in the norm’s existence warranting its use.34 What, then, should we make of a customary norm C the first time, or number of times, members of a given community explicitly formulate it to challenge acts performed by other members, or to respond to challenges to acts they themselves performed? Integration into a community’s practice of holding agents responsible may not, and perhaps often will not, occur immediately upon the first public formulation and use of a putative customary norm.35 Rather, customary norm C may be integrated into the community’s normative practices only after an extended process of challenge and response. As part of that process members of the community will often work through alternative interpretations of their interactions. This will likely involve accepting or rejecting the use of rival putative customary norms to   Postema, ‘Custom, Normative Practice, and the Law’, p. 728.   See ibid., p. 730. 35   The normative practice account does not rule out the possibility of ‘instant custom’, however. The social meaning read into patterns of behaviour by members of a given community may sometimes shift in concert, so that the first time that meaning is explicitly formulated to justify some conduct it is immediately accepted by other members of the community; i.e. immediately recognized as better capturing their understanding of what is permissible, obligatory, etc., than does a norm explicitly formulated sometime in the past. 33

34

david lefkowitz   335 justify and criticize one another, competing efforts to read different social meanings into the pattern of behaviour picked out by C (or, more likely, a similar but not identical pattern of behaviour). It may also involve reflection on some of the ramifications the putative customary norm has for other customary norms members of the community currently employ. While that process is ongoing, it will be difficult to ascertain from an observer’s standpoint whether customary norm C exists in, or is a customary norm of, this community; i.e. whether a statement to that effect is true or false. However, members of the community who employ the norm to justify or criticize conduct will take themselves to make true claims, meaning ones they take to accurately reflect an understanding of what is permissible, obligatory, respectful, etc., already present in the community’s way of life. Whether those norms really do so turns on how the process of challenge and response plays out. If customary norm C is integrated into the community’s normative practices, if it becomes widely used by members of the community to hold one another (and themselves) responsible, then even the first agent who competently employs the norm to defend himself or criticize another makes a true claim, while those who deny the norm are mistaken. Conversely, if customary norm C is not integrated into the community’s normative practices, then those who employ it in an attempt to justify or criticize do so mistakenly; in some respects they have a false understanding of the community’s normative practices, of the social meaning that the community ‘reads in’ the pattern of behaviour partly constitutive of its members’ interactions with one another. As noted above, what is determinative is the practice itself, how the process of challenge and response really plays out, not any member’s or even all the members’ articulation of the norm. Contrary to the orthodox account of opinio juris, ‘early employers’ of a customary norm that achieves uptake in any given community believe correctly that the norm to which they advert already exists as a norm of their community. This point is crucial; interpretive disputes over what members of the community are doing—​over the normative valence of one or another pattern of behaviour in which members of the community engage—​are disputes over how things are, not how they should be. Challenges and responses employing a putative customary norm assert that a given pattern of behaviour already has a certain normative valence within the community, albeit one heretofore inchoate or incompletely spelled out. Its successful integration into the community’s normative practices simply constitutes acceptance of this claim by the bulk of the community’s members. Dissatisfaction with this view may be attributable to the following belief:  if there is a fact of the matter regarding C’s existence as a customary norm of a given community, then it ought to be possible for members of that community (and perhaps external observers as well) to ascertain it without having to wait to see if members of the community are successful or unsuccessful in using it for justification and criticism. This belief rests on two mistaken assumptions, however. First, it misconstrues customary norms as objects of intellectual apprehension

336    sources in legal-positivist theories when they are really components of a practical skill. The only way to test one’s skill in navigating interactions with other members of the community according to the community’s norms is to deploy them to hold oneself and others responsible, since only one’s success or failure in doing so reveals how well one grasps (or knows, in a practical sense) the community’s customary norms.36 Secondly, the inference from disagreement to the absence of any correct answer regarding a customary norm’s status in a given community gives an unwarranted priority to epistemology over ontology.37 The advantages of the normative practice account of custom are not limited to avoiding the so-​called chronological paradox. For example, it accounts for the fact that customary norms typically bind all members of a given community regardless of whether they consent to those norms, or even could consent to them. Customary norms bind agents by virtue of their being participants in the normative practice those norms constitute; they bind agents by virtue of their membership in the community, simultaneously constituting them as members of the community (i.e. as juridical persons, bearers of rights and responsibilities) and constituting the community of which they are members. Indeed, the normative practice account clarifies why even agents who object to ‘evolving’ customs are nevertheless bound by those norms if they become integrated into the community’s practices of challenge and response.38 The normative practice account also sheds light on custom’s reform. Given that customs exist by virtue of being practiced, the creation of a new norm sometimes requires conduct at odds with an existing one, or perhaps more accurately, with what some members of the community take to be an existing customary norm. Since patterns of behaviour are always subject to multiple interpretations, they can be simultaneously construed as norm-​violative and as contributions to the development or recognition of a new customary norm.39 A community member who attempts to reform one or more of its customary norms will concede that his conduct conflicts with what some other members of the community take its normative valence to be. But he will also contest their (perhaps implicit) claim to have correctly formulated the social meaning of such conduct, in effect charging them with a failure to be properly attuned to the ways in which the community’s understanding of its own normative practices has changed. Thus far I have described the normative practice account as a theory of custom; is it ipso facto a theory of customary international law? Elsewhere I argue that we should distinguish between the creation of a customary norm and that norm’s legal

  See Postema, ‘Custom in International Law’, pp. 290–​1.   See Voyiakis, ‘Customary International Law’, pp. 164–​5. 38   The claim in the text does not deny the possibility of a norm that entitles those who persistently object to (certain) customary norms to not be subject to them. Rather, it only indicates why neither the absence of consent nor objection per se undermines the authority of a customary norm over an actor if that norm is integrated into the community’s normative practices. 39   For a similar argument, see Kammerhofer, Uncertainty, p. 75. 36 37

david lefkowitz   337 validity.40 The latter property, I contend, follows from the practice of officials in a legal system recognizing that customary norm as law. This is a contingent practice, however; it may extend only to some of a community’s customary norms, as I contend is the case for the customary norms that govern States’ international relations. Moreover, some legal systems may not recognize custom as a source of law at all. If so, a complete theory of CIL requires both an account of custom and an account of how custom becomes law. What the arguments in this section demonstrate, though, is that many of the alleged theoretical challenges to customary international law are really challenges to custom per se, independent of its being recognized as law.

V.  Positivism and the Normative Practice Account of Custom and Custom Formation Whatever its virtues, positivists may question the compatibility of the normative practice account of custom and custom formation with their own commitment to the view that norms count as law only by virtue of their social source, regardless of their merits. In the space remaining I make an initial effort to assuage such worries, focusing particularly on Kelsen’s and Raz’s respective arguments for positivism. Kelsen maintains that law must be the product of an act of willing or positing. Given such an understanding, we may struggle to make sense of customary international law, which ‘seems to be unintentional, undirected, and unwilled human activity’.41 Kelsen’s solution is to characterize opinio juris as a collective act of will; specifically an act of collectively willing that members of a given community ought to behave as they have been behaving. How should we understand the idea of collective willing here? I suggest we do so in terms of the normative practice account of custom and custom formation described above. That account enables us to explain the collective aspect of custom formation to which Kelsen rightly points, since a customary norm exists in any given community only if it is integrated into that community’s practice of holding people responsible. Furthermore, it reflects how customary norms are created or made by members of the community through a process of challenge and response in which social meaning is read into or used to cognize their interactions with one another. True, on the normative practice 40  David Lefkowitz, ‘(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach’, Canadian Journal of Law and Jurisprudence 21 (2008): 129–​48. 41  Kammerhofer, Uncertainty, p. 82.

338    sources in legal-positivist theories account of custom formation novel attempts to explicitly formulate norms perceived as latent in the community’s existing practices are not conceived of as the intentional willing or positing of a new norm. But Kelsen, at least, does not appear to equate the willing necessary for the existence of a positive norm with legislation. Rather, he claims that ‘custom is, just like a legislative act, a mode for creating law’.42 Indeed, once we distinguish custom from legislation as a means for creating norms, and characterize the former in terms of the normative practice account, we can see that custom is not only willed but also intentional and directed. Customary norms arise because of agents directing normative claims at one another with the intention that the targets of those claims guide their conduct according to the norm referenced in the claim (i.e. the challenge or response). The perception that customary norms are the product of a process that is neither intentional nor directed rests on the assumption that acts of willing or positing norms must be legislative. Finally, the normative practice account explains custom’s normativity without falling foul of the Is–​Ought distinction that figures centrally in Kelsen’s theory of law. The justification for a customary norm (an Ought) requiring some act-​type is not found in the fact (an Is) that members of a given community perform, or have long performed, that act. Nor is that fact rendered normative by another fact, namely the belief that members of the community ought to perform tokens of that act-​type. Rather, the very cognition of a certain behaviour as an act of some type or other, e.g. as obligatory or permissible, is normative. Thus, when a member of a given community challenges another’s performance of a certain act, or responds to such a challenge, with the claim ‘that’s not how we do it around here’, that is not a descriptive claim regarding the sort of behaviour that might be observed or predicted, but a normative claim that implicitly references the social meaning read into that behaviour that renders it not to be done. Recall that Raz argues that law must be positive if it is to be authoritative; that is, if it is to be capable of mediating between agents and the reasons that apply to them. The key question, then, is whether on the normative practice account of custom it is possible for agents to guide their conduct according to a customary rule without reflecting on the reasons for having that rule. It might be thought that this question must be answered in the negative on the ground that members of a given community must interpret their interactions with other members of the community in order to identify the customary norms that bind them. This is false. Members of a community frequently learn its customary rules through instruction by other members recognized as enjoying significant mastery of its normative practices in light of their successful participation in them over a lengthy period of time.43 In the case of   Hans Kelsen, General Theory of Norms, trans. Michael Hartney (Oxford: Clarendon Press, 1991). See also Kammerhofer: ‘[a]‌better reading of the Pure Theory’s customary theory is that the will that subjects of law ought to observe the factual pattern has become a collective, but not a “legislative” will’. Kammerhofer, Uncertainty, p. 84. 43   See Postema, ‘Custom in International Law’, p. 286. 42

david lefkowitz   339 customary international law, this takes the form of experienced international lawyers educating new members of that field as well as other legal officials, corporate officers, etc.44 Nor need testimony and instruction be personal; the public promulgation of customary rules as well as their codification can also play a part. In all these cases members of the relevant community, e.g. the legal officials whose conduct constitutes the international acts of the States in which they occupy offices, will be able to identify what the rules are without recourse to the reasons on the basis of which those who created the rules did so. Moreover, since the ability to successfully navigate a community’s normative practices is a practical skill, those who have developed it to a high degree will often succeed in identifying its customary norms without recourse to expert testimony or codification. None of this is to deny that agents may sometimes be uncertain or mistaken regarding the normative valence custom attaches to a specific pattern of behaviour. Nor is it at odds with the claim that uncertainty and the incidence of mistakes are likely to intensify rapidly as the social, natural, and technological environment in which members of a community interact becomes increasingly complex and dynamic. However, these points merely indicate the limits of rule-​guided behaviour in general and customary rule-​guided behaviour particularly. As long as customary rules can sometimes be learned and reliably (if not infallibly) deployed by community members to navigate their interactions with one another, the normative practice account is consistent with Raz’s argument for positivism. Finally, the central role that the normative practice of custom assigns to interpretation in the creation of new customary norms poses no threat to the positivist’s account of what makes norms legal. True, the normative interpretation of some pattern of behaviour necessarily rests on an appeal to some value or values, some perhaps implicit purpose or end best served by understanding that pattern of behaviour as obligatory, permissible, etc. But in that respect it differs in no way from the typical process of legislation, formal or informal. Furthermore, on the normative practice account interpretation alone does not create a customary norm, nor does the success of any given interpretation rest on its being the objectively best (moral) construction of the community’s existing normative practice. Rather, an interpretation of a pattern of behaviour succeeds as custom formation if, and only if it is integrated into the community’s practices of holding themselves and one another responsible. That is the ‘social fact’ that constitutes the existence of customary norms. In this chapter I have considered legal positivism as a conceptual claim regarding law, and so international law; specifically, the claim that the existence of law is a matter of its social source, regardless of its merits.45 Arguments offered in defence 44   Consider this in the light of Article 38 (1) (d) of the Statute of the International Court of Justice (San Francisco, 26 June 1945, 33 UNTS 993). 45   Or, for that matter, the merits of the normative social order it regulates, and so partly constitutes.

340    sources in legal-positivist theories of this claim can be categorized as descriptive, normative, and conceptual, from which it follows that the success of any particular criticism of legal positivism as an accurate characterization of (international) law depends on the specific type of defence offered for that characterization. In addition to arguing for the claim that law is necessarily a social fact, legal positivists should, and often do strive to give an account of the possible sources of law; i.e. the types of action that can generate law. Providing a theoretically satisfying positivist account of customary international law has proven to be difficult, as the shortcomings of the orthodox theory illustrate. The normative practice account described here, however, succeeds where other attempts have failed: it avoids the chronological paradox, makes sense of ‘instant’ custom, explains why custom binds in the absence of consent, and is consistent with the arguments for legal positivism offered by two of its most important proponents.

Research Questions • Legal positivism maintains that what counts as a law-​creating act, or a source of law, in any given legal system depends on the practice of its legal officials. Who are the officials in the international legal order? If State office-​holders, are they simultaneously officials in two legal orders? Are practicing international lawyers and/​or international legal scholars among the set of actors whose practices of law identification help to determine the sources of international law? • This chapter treats legal positivism largely as a view regarding the nature of law, including international law, separable from specific political philosophies and specific historical contexts, periods, or movements. Is this a defensible method, or is the case for or against legal positivism inextricably linked to a specific political philosophy (e.g. liberalism) or historical period and movement (e.g. nineteenth-​ century European colonialism)?

Selected Bibliography Besson, Samantha, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–​85. Hart, H. L. A., The Concept of Law, 3rd edn (Oxford: Oxford University Press, 2012).

david lefkowitz   341 Kammerhofer, Jörg, and Jean d’Aspremont, International Legal Positivism in a Post-​Modern World (Cambridge: Cambridge University Press, 2014). Kelsen, Hans, The Pure Theory of Law, trans. Max Knight (Berkeley: California University Press, 1967). Oppenheim, Lassa, International Law: A Treatise, vol. 1 (New York: Longmans Green, 1905). Raz, Joseph, The Morality of Freedom (New York: Oxford University Press, 1986). Thirlway, Hugh, The Sources of International Law (New York: Oxford University Press, 2014). Van Hoof, G. J. H., Rethinking the Sources of International Law (Deventer: Kluwer, 1983).

Chapter 16

SOURCES IN LEGAL-​P OSITIVIST THEORIES THE PURE THEORY’S STRUCTURAL ANALYSIS OF THE LAW

Jörg Kammerhofer

I. Introduction This chapter is an offer to international lawyers.1 It offers to re-​introduce the mainstream to the sources of law. It is a tempting message of legal common sense:  a common sense tweaked. The tweaks are part of this message’s appeal, for without them, we are condemned to Sisyphean debates among ourselves and to hewing 1   It is an evolution of ideas the present author has developed over the past decade and to a certain extent also a restatement of previously published ideas, e.g. in Jörg Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (Abingdon: Routledge, 2010); Jörg Kammerhofer, ‘Robert Walter, die Normkonflikte und der zweite Stufenbau des Rechts’, in Clemens Jabloner, Dieter Kolonovits, Gabriele Kuesko-​Stadlmayer, René Laurer, Heinz Mayer, and Rudolf Thienel, eds, Gedenkschrift Robert Walter (Vienna: Manz, 2013), 237–​56; Jörg Kammerhofer, ‘Hans Kelsen in Today’s International Legal Scholarship’, in Jörg Kammerhofer and Jean d’Aspremont, eds, International Legal Positivism in a Post-​ Modern World (Cambridge: Cambridge University Press, 2014), 81–​113.

344    sources in legal-positivist theories down oaks with rushes as against our critics. The offer is made by a most unlikely offeror: the Pure Theory of Law. On first blush, this is the positivist approach least suited to international legal scholarship’s mainstream. None could be further from its easy-​going flexibility vis-​à-​vis political and moralist pressure; none further from its resolute refusal to critically evaluate the theoretical bases of its legal doctrines. This chapter claims that the ideas originally propounded by Hans Kelsen and Adolf Julius Merkl are worth a close look particularly by those who wish to primarily research international law ‘as it is’. No other approach is closer to our traditional understanding of the sources of international law, while avoiding its mistakes.2 The Pure Theory’s axioms are close to orthodox lawyers’ hearts in part because it is a true lawyer’s legal theory. It is thus worth another look, particularly with respect to the sources of law.

II.  From the Sources of Law to the Stufenbau Theory 1. The Problem of the ‘Source’ Metaphor The most elementary question lawyers ask themselves is ‘What is the law (on this point)?’ This is not, at any rate not directly, the age-​old question of the ultimate source of obligation for human conduct. This is also not the slightly younger question of the definition of ‘law’. It is a far more mundane, yet equally important question: where do we look for the law? We ask where the law on a specific case comes from, or, within contentious proceedings, whether a claimed rule of law or ‘norm’ is validly part of ‘the law’. The answer is so easy that even first-​year law students will be able to give it: we look to the sources of law. The sources tell us where the law comes from and if a proposed norm has come about according to ‘the sources’, then it is law, then it is binding. Of course, this deceptively easy answer is easily shattered, even without engaging in deep philosophical debates. We could equally easily say   There is no space in this chapter to attempt to respond to source theories of (neo-​)Hartian persuasion, as developed inter alia by ­chapter 15 by David Lefkowitz in this volume. The present author has discussed aspects of that theory in other publications, however: Kammerhofer, ‘Hans Kelsen in Today’s International Legal Scholarship’, pp.  97–​ 105; Jörg Kammerhofer, ‘International Legal Positivism’, in Florian Hoffmann and Anne Orford, eds, The Oxford Handbook of the Theory of International Law (Oxford:  Oxford University Press, 2016), 407–​26, 414–​25; Jörg Kammerhofer, ‘Positivistische Normbegründung’, in Eric Hilgendorf and Jan C. Joerden, eds, Handbuch Rechtsphilosophie (Stuttgart: Metzler, 2017), 200–​7, 204–​7. 2

jörg kammerhofer   345 that the sources tell us where to look for the law without themselves being the locus of creation. If law can be ‘found’ in an ‘accredited’ source, then we must take it into account. This is the traditional German distinction between Rechtserzeugungsquelle (source of law creation) and Rechtserkenntnisquelle (source of law-​cognition), not unknown to other traditions. But even if it is easy to shatter first-​year assumptions, the elementary question posed above remains acute. Foremost is the metaphor of the ‘sources’ of law. In it, we imagine tracing a river to its sources from whence spring its waters, which flow downhill, and eventually unite to form a broad stream.3 This metaphor has been so persistent throughout the ages because it evokes colourful imagery. However, like any heuristic tool, it has its limitations; the idea of ‘sources’ of the law has led to what one could cautiously call ‘distortions’. Granted, law is not immediately apparent to our senses, thus making even this cautious statement dependent on theoretical presuppositions, of which this chapter will supply one set. However, it is probably fair to say that the traditional reliance on the metaphor of ‘sources’ of law has led to a number of doctrines which derive from the metaphor, rather than an analysis of the structure of the law. Around 1920, Kelsen adopted the theory of the dynamic structure of law first developed by Merkl, later to be called the Stufenbau theory.4 The Pure Theory of Law in its mature form has healed the rift between jurists’ common sense of the law and some of traditional scholarship’s cul-​de-​sacs. With an eye to international legal sources doctrine, we can summarize a few important misrepresentations by orthodox scholarship: − The sources of law are not part of the law, for example because law is made by external forces. − All sources of law, particularly of international law, are coordinated and not in a hierarchical relationship. − The sources of law may be separate, but rules hailing from one source can change or otherwise influence rules from another source. − Just because different methods of norm creation exist—​for example, the contractual or customary method—​each of these is a source of law within a given legal order. A source ‘exists’ solely because it specifies a different method of creation. − The ‘source’ as producer (the sources are where the law comes from) and as product (e.g. a rule of customary law is part of that source of law) is not separated clearly. Using the wrong heuristic device is certainly part of the problem with traditional sources doctrine, but this is much more a symptom of underlying causes. Section 2 below accordingly re-​conceptualizes sources doctrine as Stufenbau theory, but

3

  Lassa Oppenheim, International Law: A Treatise, vol. 1 (London: Longmans, 1905), pp. 20–​1.  ‘Stufenbau’ is an obsolete German word meaning ‘step-​pyramid’.

4

346    sources in legal-positivist theories attempts neither a history of German sources doctrine nor of the Stufenbau theory. This is a systematic portrayal of this (re-​)conception of the sources of law.

2. The Stufenbau and the Structure of Legal Orders The Stufenbau is a metaphorical representation of inter-​norm relationships in legal orders. As such, the idea of a hierarchical ‘pyramid of norms’ is not meant to shape normative orders, but a theoretical approach concerned with the functioning of the necessary link between norms, the validity relationship. It is a tool for analysing the structure of positive normative orders. If and when ‘doctrinal scholarship’ (dogmatische Rechtswissenschaft) finds that the simple pyramidal structure is not adequate,5 the metaphor will not invalidate the doctrinal result.6 This is because the Stufenbau metaphor is the result of Kelsen’s and Merkl’s insight into the dynamic nature of norms, the result of theoretical studies on that part of the structure of legal orders which is a necessary corollary of the concept of ‘law’.7 The metaphor follows the theoretical insight, not vice versa. Analytically, the story of the Stufenbau theory starts with the Is–​Ought dichotomy. There is one concept of hierarchical ordering that follows by necessity from the concept of law as ‘norms’—​as Ought, categorically separate from Is.8 If no norm can be valid as a norm, i.e. ‘exist’, without its validity being traced back to another norm,9 then a relationship between these two norms is established. One norm (the ‘higher’ norm or ‘source’) establishes the validity of another norm (the ‘lower’ norm) and thus its very ‘existence’ as norm.10 This ‘static’ validity relationship is, however, better described in a ‘dynamic’ sense:11 the ‘source’ empowers law creation 5   Admittedly, this term is used here in a special sense which differs slightly from the German Rechtsdogmatik. ‘Doctrinal scholarship’ is used in this chapter for that part of scholarship which studies the sum total of positive norms of a specific legal order and its structure. This distinguishes it from ‘legal theory’, which studies the preconditions for doctrinal scholarship, i.e. norm-​theory and legal epistemology/​theory of legal scholarship. 6   Adolf Julius Merkl, ‘Prolegomena einer Theorie des rechtlichen Stufenbaues’, in Alfred Verdross, ed., Gesellschaft, Staat und Recht: Festschrift für Hans Kelsen zum 50. Geburtstag (Vienna: Springer, 1931), 252–​94, 284 (reprinted in Hans Klecatsky, René Marcic, and Herbert Schambeck, eds, Die Wiener rechtstheoretische Schule: Ausgewählte Schriften von Hans Kelsen, Adolf Julius Merkl, Alfred Verdross (Vienna: Europa, 1968) (abbreviated as: WRS), 1311–​61, 1350; Dorothea Mayer-​Maly, Herbert Schambeck, and Wolf-​Dietrich Grussmann, eds, Adolf Julius Merkl: Gesammelte Schriften, Vol. I/​1 (Berlin: Duncker & Humblot, 1993) (abbreviated as: MerklGS I/​1), 437–​92, 479–​80); Rainer Lippold, Recht und Ordnung: Statik und Dynamik der Rechtsordnung (Vienna: Manz, 2000), p. 386. 7  ‘[D]‌ ie vom Begriff des Rechts vorgezeichnet sind’; Jürgen Behrend, Untersuchungen zur Stufenbaulehre Adolf Merkls und Hans Kelsens (Berlin: Duncker & Humblot, 1977), p. 11. 8  Behrend, Untersuchungen zur Stufenbaulehre, p. 61. 9   Hans Kelsen, Reine Rechtslehre, 2nd edn (Vienna: Deuticke, 1960), p. 196. 10   Merkl, ‘Prolegomena’, pp. 275–​6 (WRS, pp. 1339–​40, MerklGS I/​1, pp. 467–​8). 11  Adolf Julius Merkl, Die Lehre von der Rechtskraft, entwickelt aus dem Rechtsbegriff:  Eine rechtstheoretische Untersuchung (Leipzig:  Deuticke, 1923), p.  217; Bettina Stoitzner, ‘Die Lehre vom

jörg kammerhofer   347 and empowerment is a necessary (but not sufficient) condition of the lower norm’s ‘existence’.12 In Kelsen’s words, ‘a norm [is] valid, if and when it was created in a certain fashion determined by another norm. This norm is the immediate source of validity of the first norm.’13 On a slightly different tack, then, the sources of law are transformed from a mysterious external ‘unmoved mover’ to the lynchpin of normative orders. Sources are part of the law; they are one specific variant of norms which authorize humans to create norms.14 In finding out where the law comes from, in finding the sources of law, we look to a specific part of the legal order. We look for ‘empowerment norms’, the type of norm which authorizes the creation of norms.15 If we have this one relationship or connection between two norms that is inherent in their nature as norms, then an ordering and unifying of norms into a normative order is not only possible, but actually seems necessary.16 The legal order is not a system of coordinate legal norms existing alongside each other, but a hierarchical ordering of various strata of legal norms. Their unity is constituted because a norm which has been created according to the terms of another norm derives its validity from that latter norm, whose creation is, in turn, determined by yet another norm; a regressus ending in the Grundnorm, [whose validity] is presumed.17

This ordering is what Merkl calls the Stufenbau nach der rechtlichen Bedingtheit, the hierarchy of legal conditionality.18 Creation establishes hierarchy:  only if the Stufenbau der Rechtsordnung’, in Stanley L. Paulson and Robert Walter, eds, Untersuchungen zur Reinen Rechtslehre:  Ergebnisse eines Wiener Rechtstheoretischen Seminars 1985/​86 (Vienna:  Manz, 1986), 51–​90, 55. See also Stanley L Paulson, ‘Zur Stufenbaulehre Merkls in ihrer Bedeutung für die Allgemeine Rechtslehre’, in Robert Walter, ed., Adolf J. Merkl: Werk und Wirksamkeit: Ergebnisse eines Internationalen Symposiums in Wien (22.–​23. März 1990) (Vienna: Manz, 1990), 93–​105, 95.  Merkl, Die Lehre von der Rechtskraft, p. 216; Merkl, ‘Prolegomena’, p. 273 (WRS, p. 1336, MerklGS I/​1, pp. 464–​5); Behrend, Untersuchungen zur Stufenbaulehre, p. 32; Hans Kelsen, Allgemeine Theorie der Normen (Vienna: Manz, 1979), p. 82; Lippold, Recht und Ordnung, p. 382. 13   ‘[E]‌ine Norm [gilt] darum . . ., weil und sofern sie auf eine bestimmte, das heißt durch eine andere Norm bestimmte Weise erzeugt wurde, stellt diese den unmittelbaren Geltungsgrund für jene dar.’ Kelsen, Reine Rechtslehre, p. 228. 14   Hans Kelsen, Principles of International Law (New York: Rinehart, 1952), p. 303. 15 16  Kelsen, Allgemeine Theorie, pp. 82–​4.  Lippold, Recht und Ordnung, p. 402. 17  ‘Die Rechtsordnung ist nicht ein System von gleichgeordneten, nebeneinanderstehenden Rechtsnormen, sondern ein Stufenbau verschiedener Schichten von Rechtsnormen. Ihre Einheit ist durch den Zusammenhang hergestellt, der sich daraus ergibt, daß die Geltung einer Norm, die gemäß einer anderen Norm erzeugt wurde, auf dieser anderen Norm beruht, deren Erzeugung wieder durch andere bestimmt ist; ein Regreß, der letztlich in der—​vorausgesetzten—​Grundnorm mündet.’ Kelsen, Reine Rechtslehre, p. 228; see also Merkl, Prolegomena’, p. 257 (WRS, p. 1317, MerklGS I/​1, p. 443). 18   Merkl, ‘Prolegomena’, p.  276 (WRS, p.  1340, MerklGS I/​1, p.  468); Robert Walter, Der Aufbau der Rechtsordnung:  Eine rechtstheoretische Untersuchung auf Grundlage der Reinen Rechtslehre (Graz: Leykam, 1964), p. 60; Stoitzner, ‘Die Lehre vom Stufenbau’, pp. 55–​6. There is another principle of ordering, the hierarchy of derogatory force (Stufenbau nach der derogatorischen Kraft), also developed by Merkl, ‘Prolegomena’, p. 276 (WRS, p. 1340, MerklGS I/​1, p. 468–​9); Walter, Der Aufbau der Rechtsordnung, pp. 54–​5. While it is highly relevant in the daily operation of legal orders, this chapter will not focus on it. 12

348    sources in legal-positivist theories conditions imposed by the empowerment norm, the higher law on law creation (Rechtserzeugungsregel) are met,19 can the lower norm be said to have been created as a norm of that legal order.20 The norms are thus ordered and structured. As Merkl memorably puts it, ‘[i]‌f the chaos of legal phenomena is to be seen as . . . legal cosmos, then the principle of delegation [i.e. empowerment] . . . must be taken as inherent in the common origin [of norms]’.21 Indeed, because law cognized along the lines of legal empowerment only brings to the fore the order already present in positive law, the Stufenbau theory is not prone to the sin of idealizing the law,22 and firmly grounds law creation in the law itself, rather than in meta-​legal concepts.23 This inherent ordering, the Stufenbau of law, also allows for the creation of more-​ or-​less complex structures of norms, depending on the specific legal order studied. This is the basis for the structural analysis of law:24 in domestic legal orders, for example, we will have cascades of complex empowerment norms. In international law, by contrast, we will likely have less complex structures (although this is not necessarily so). Put differently, the Stufenbau ‘is the result of a legal structural analysis whose object is  .  .  .  to portray those structures and systematic connections which are sketched out by the idea of law and are thus intrinsic to law’.25 Once one starts to analyse specific normative orders, one realizes that for the sheer diversity of actual or possible content, the forms utilized are rather limited.26 What these legal forms (Rechtsformen) are has been the object of intense debate. The best view is Robert Walter’s: ‘[t]‌he legal form is determined by the law on law-​ creation; legal norms have the same form if they were created according to the same law on law-​creation’.27 Customary international law might be one such Rechtsform, because all norms belonging to it are allegedly created according to the same rule  Walter, Der Aufbau der Rechtsordnung, p. 61.  Kelsen, Reine Rechtslehre, p. 239; Lippold, Recht und Ordnung, p. 399; Behrend, Untersuchungen zur Stufenbaulehre, pp. 16–​17. 21   ‘Soll das Chaos von Rechtsgestalten . . . als ein rechtlicher Kosmos gedeutet werden können, dann muß . . . ein delegierendes Prinzip . . . als Ausfluß eines gemeinsamen Ursprunges erkannt werden’; Merkl, Die Lehre von der Rechtskraft, p. 210. 22  Lippold, Recht und Ordnung, p. 394. 23  Theo Öhlinger, Der Stufenbau der Rechtsordnung:  Rechtstheoretische und ideologische Aspekte (Vienna: Manz, 1975), p. 14. 24   Merkl, ‘Prolegomena’, p.  252 (WRS, p.  1311, MerklGS I/​1, p.  437) (Strukturanalyse des Rechts); Lippold, Recht und Ordnung, p. 394. 25   ‘[I]‌st das Ergebnis einer rechtlichen Strukturanalyse, deren Erkenntnisziel es  .  .  .  ist,  .  .  .  diejenigen Strukturen und systematischen Zusammenhänge aufzuzeigen, die vom Begriff des Rechts vorgezeichnet sind und damit rechtswesenhaften Charakter aufweisen.’ Behrend, Untersuchungen zur Stufenbaulehre, p. 11; see also Stoitzner, ‘Die Lehre vom Stufenbau’, p. 51. 26   See e.g., Merkl, Die Lehre von der Rechtskraft, pp.  207–​9; Merkl, ‘Prolegomena’, p.  252 (WRS, p. 1311, MerklGS I/​1, p. 437). 27  ‘Der Bestimmungsgrund für die Form der Rechtsvorschriften ist ihre Erzeugungsregel; die gleiche Form haben jene Rechtsvorschriften, die nach der gleichen Erzeugungsregel geschaffen wurden.’ Walter, Der Aufbau der Rechtsordnung, p. 55 (emphasis removed). See further Stoitzner, ‘Die Lehre vom Stufenbau’, pp. 57, 81–​2 (n. 57). 19

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jörg kammerhofer   349 on customary law creation. If we stay true to the idea of the Stufenbau, i.e. if the empowerment relationship is the only necessary ordering criterion, then legal form and empowerment norm are identical.28 Then, however, particularly in domestic legal orders, many of the empowerment relationships will be inordinately complex; the conditions for law creation for a criminal judgment, for example, may involve significant parts of the legal order:29 not only parts of the penal and penal procedural codes, but also of the constitution—​even administrative acts appointing someone a judge or delineating responsibility for cases within the court. Such a structural analysis may lead to results which are far removed from orthodox notions of hierarchy.30 Particularly in domestic legal orders, but not only there, the facile notion of a uniform hierarchy of Rechtsformen in a pyramid of law cannot be upheld. Conditions of law creation may transcend the hierarchy of form and partially overturn it.31

3. Traditional Sources Doctrine and the Stufenbau Theory The Stufenbau theory is a radical departure from the traditional domestic and international legal sources doctrine. Above, we have identified four important problems of the mainstream conception of the sources of international law: externality, coordination, and mutual derogability of sources, as well as their identification with forms. The following briefly looks at and critiques each of these, as represented in international legal doctrine. Rüdiger Wolfrum’s entry on ‘sources’ in the Max Planck Encyclopedia of International Law is used as typical emanation of orthodox sources doctrine (section II.3.a).32 Viewing law as Stufenbau avoids false necessities by focusing on the ‘real’ structure of legal orders, i.e. one following the validity relationships among the sum totality of positive norms (section II.3.b).

a. Pathology i. Externality In non-​theoretical contributions such as Wolfrum’s Encyclopedia entry, we find this assumption in an indirect and hidden manner: ‘international law is constituted by  Lippold, Recht und Ordnung, p. 392.  Walter, Der Aufbau der Rechtsordnung, pp. 59–​60, 61 (n. 111). 30  Lippold, Recht und Ordnung, p. 393. 31  Ewald Wiederin, ‘Die Stufenbaulehre Adolf Julius Merkls’, in Stefan Griller and Heinz Peter Rill, eds, Rechtstheorie:  Rechtsbegriff–​Dynamik–​Auslegung (Vienna:  Springer, 2011), 81–​134, 92–​100; Öhlinger, Der Stufenbau der Rechtsordnung, pp. 16–​17. 32  Rüdiger Wolfrum, ‘Sources of International Law’, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2011), , accessed 31 May 2017. 28

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350    sources in legal-positivist theories legally binding norms, stemming from different sources. The term “sources” refers to  .  .  .  the process and procedure through which binding rules of international law . . . are generated.’33 They are claimed to be ‘mechanisms . . . for the development of the international normative order’,34 ‘methods’, ‘manifestations’, or ‘procedures’.35 Hence, they are one of two things (or both): the process through which law comes about: ‘the formal processes at the origins of the norms’,36 or a ‘formal’ aid to help identify the law (in contradistinction to evidences). Yet whether it is one or the other, most writers agree that sources themselves are not norms or rules.37 The sources of law are somehow beyond or outside law, either as entity or as epistemic force, a tool for the ascertainment of law. They are seen as ‘empirical description of procedures which usually create norms, which are regularly obeyed . . . or are seen as being obligatory’.38 In traditional international legal scholarship, scholars usually do not elaborate or are unaware of the theoretical implications of their designation of sources as ‘methods’ or ‘processes’, but one reason may be a propensity for the distinction between the sources of law, on the one hand, and the basis of its binding nature on the other, which even relatively recent and theory-​aware publications uphold: ‘[t]‌he sources of the rules of law, while therefore distinct from the basis of law, are nevertheless necessarily related to the basis of the legal system as a whole’.39 Despite acknowledging 34   ibid., para. 6.   ibid., para. 58.   Alain Pellet, ‘Article 38’, in Andreas Zimmermann, Christian Tomuschat, and Karin Oellers-​ Frahm, eds, The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2006), 677–​792, 700–​1 (MN 75; nn. 149–​50); Peter Fischer and Heribert Franz Köck, Allgemeines Völkerrecht, 6th edn (Vienna: Linde, 2004), p. 69; Gerald G. Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’, in Jan Hendrik Willem Verzijl and F. M. Van Asbeck, eds, Symbolae Verzijl: Présentées au Prof. J. H. W. Verzijl à l’occasion de son LXX-​ième anniversaire (The Hague: Martinus Nijhoff, 1958), 153–​76, 154; Georg Schwarzenberger, International Law, vol. 1., 4th edn (London: Stevens & Sons, 1960), p. 24; Robert Y. Jennings and Arthur Watts, eds, Oppenheim’s International Law, vol. 1, 9th edn (London: Longman, 1992), p. 23; Malcolm N. Shaw, International Law, 4th edn (Cambridge: Cambridge University Press, 2014), pp. 49–​51; Helmut Strebel, ‘Quellen des Völkerrechts als Rechtsordnung’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 36 (1976): 301–​46, 302–​3; Michel Virally, ‘The Sources of International Law’, in Max Sørensen, ed., Manual of Public International Law (London: Macmillan, 1968), 116–​74, 120. 36   Pellet, ‘Article 38’, p. 777 (MN 277). 37   Maarten Bos, ‘The Recognized Manifestations of International Law: A New Theory of “Sources” ’, German Yearbook of International Law 20 (1977): 9–​76, 10–​1; Antonio Cassese, International Law, 2nd edn (Oxford: Oxford University Press, 2005), p. 153; Torsten Gihl, ‘The Legal Character and Sources of International Law’, Scandinavian Studies in Law 1 (1957): 51–​92, 83; Peter Hulsroj, ‘Three Sources—​No River: A Hard Look at the Sources of Public International Law with Particular Emphasis on Custom and “General Principles of Law” ’, Zeitschrift für öffentliches Recht 54 (1999): 219–​59, 234; Alfred Verdross and Bruno Simma, Universelles Völkerrecht, 3rd edn (Berlin: Duncker & Humblot, 1984), pp. 323–​4. 38   ‘lediglich als empirische Beschreibung der Verfahren, in denen üblicherweise Normen entstehen, die regelmäßig befolgt werden . . . bzw. als verpflichtend erlebt werden;’ Ulrich Fastenrath, Lücken im Völkerrecht:  Zu Rechtscharakter, Quellen, Systemzusammenhang, Methodenlehre und Funktionen des Völkerrechts (Berlin: Duncker & Humblot, 1991), p. 86. 39   Jennings and Watts, Oppenheim’s International Law, p. 23; see also P. K. Menon, ‘An Enquiry into the Sources of Modern International Law’, Revue de Droit International, de Sciences Diplomatiques et 33

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jörg kammerhofer   351 that ‘source of a rule of law is . . . to be found in the process . . . from which it derives its legal validity’,40 this tradition insists on separating source and basis.

ii. Coordination Wolfrum writes that ‘[a]‌part from . . . ius cogens, no such hierarchy [of sources] exists. It is easily conceivable that the same matter is governed by treaty as well as customary international law and that these rules coexist.’41 Sources are considered as residing on one absolute level.42 On that view, the sources of international law do not form part of a hierarchy of law; they are equal and equally separate from the rules of law. It is even claimed that subordinate sources (as product, not producer), such as certain resolutions of the UN Security Council, are equal to treaty and customary law,43 even though their creation is authorized by the UN Charter, which is one specific treaty.

iii. Derogability One might think that coordination and equality of sources would mean that the possibilities for interaction between the norms produced by them (source as product), including derogation, are zero. Traditional sources doctrine draws the opposite conclusion: ‘[i]‌nternational law sources form a unity and, as such, influence and supplement each other. . . . The relationship between the sources is to be established on a case-​by-​case basis.’44 The International Law Commission’s (ILC) Report on the Fragmentation of International Law goes further and reduces the idea of parallel independent validity in the Nicaragua case to a matter of applicable law before a court.45

iv. Form There is a tendency to identify each possible method of norm or law creation with a source. Because it is possible, for example, to create norms by way of synallagmatic agreement, ‘treaty’ is one of the supreme sources of international law. The Politiques 64 (1986): 181–​214, 181; Percy E. Corbett, ‘The Consent of States and the Sources of the Law of Nations’, British Yearbook of International Law 6 (1925): 20–​30; G. J. H. van Hoof, Rethinking the Sources of International Law (Deventer: Kluwer, 1983).   Jennings and Watts, Oppenheim’s International Law, p. 23 (emphasis added).  Wolfrum, ‘Sources’, para. 11; see also ILC, ‘Fragmentation of International Law:  Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, finalized by Martti Koskenniemi’, 13 April 2006, UN Doc. A/​CN.4/​ L.682, para. 85; Pellet, ‘Article 38’, pp. 778–​80 (MN 282–​8); Shaw, International Law, pp. 87–​8. 42   See Jennings and Watts, Oppenheim’s International Law, pp. 15, 23; Fitzmaurice, ‘Some Problems’, p. 154. 43   Bos, ‘The Recognized Manifestations of International Law’. 44   Wolfrum, ‘Sources’, paras 60, 6. 45   Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, 95, 96 (paras 177, 179); ILC‚ ‘Fragmentation of International Law’, para. 82. 40 41

352    sources in legal-positivist theories same applies to the method of norm creation via custom and so forth. Wolfrum, describing the concept of ‘sources’, points out that ‘[a]‌variety of mechanisms are available in international law to gain consent, uphold consent, or to ensure that a norm under consideration meets the principles of fairness, equity, and justice’.46 There are various mechanisms for creating international law and each is, for him, a source.

b. Critique and Construction More than these four could be named, but they will suffice to show the problems of traditional sources doctrine and how the Stufenbau theory can help. For international law, it is easy to see how the idea of the sources as non-​legal processes comes about. We do not have a constitutional document; the dominant understanding is not only that there is no constitution of international law, but that the legal ordering of international society is not itself based on law. Because the classical sources of international law seem to be ultimate, not themselves subject to legal regulation, because no law on the formation of law immediately appears to us, it seems that this matter is not one of law. The idea that the sources of law are themselves law and that all legal orders have a constitution in a specific sense47 only took hold in domestic legal scholarship in the nineteenth century and has not quite reached international legal scholarship yet. But even if we can well understand why the idea that sources (as producers) are not part of the law is attractive to orthodox scholarship, this does not render it any less problematic. Seeing the sources of law as non-​law, not as norms themselves, is subject to a pragmatic and to a legal-​theoretical objection. The first is that this involves a certain free-​for-​all, as the ‘process’ or ‘method’, even if called ‘formal’, is still unfettered. The idea in Alfred Verdross’ late work that there are multiple custom-​creative processes, each based on a method that ‘usually’ succeeds in creating customary international law,48 is circular: how do we know which processes create law if we do not know when law has validly been created? However, it also suffers from a certain arbitrariness of choice: whatever proposed norm suits the proponent, a process will be readily available to legitimize custom creation. Like fundamental rights of States? We will happily supply a method for these to be customary law: an originary consensus of States. Prefer a responsibility to protect? We can help you there as well: just widen the providers of opinio iuris to the international community understood as totality of humankind. The more foundational objection comes from the idea of law as separate from facts. If law were reducible to facts, we could not speak of, cognize, or ‘perceive’ 47   Wolfrum, ‘Sources’, para. 4.  Kelsen, Reine Rechtslehre, p. 228.  Alfred Verdross, ‘Entstehungsweisen und Geltungsgrund des universellen völkerrechtlichen Gewohnheitsrechts’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 29 (1969): 635–​53, 636. 46 48

jörg kammerhofer   353 norms;49 we could not possibly see the point of an imperative. ‘Sit down!’ would not be intelligible. And we do so distinguish for prohibitory or obligatory rules: they are something which must be followed, but where reality may intervene to render them ‘violated’. Why, then, if this ideal is to remain (potentially) different from reality, should the creation of norms not be governed by norms? If reality, if real ‘processes’ alone are responsible for the creation of ideals, then reality and ideal are one. Of course, even on the Stufenbau theory, reality is a factor in creating law. Empowerment norms prescribe real actions, like a voting procedure or publication in the law gazette, but these acts are not sufficient (merely in this case necessary) to create a norm. The argumentative dodge to tell us that sources do not decide whether rules ‘exist’ but merely whether they are valid or binding as law,50 is counter-​productive. The Pure Theory of Law helps us to see that if we believe in the possibility of rules for human behaviour, then the validity, bindingness, or ‘obligatoriness’ of norms cannot be anything other than their existence. Validity is the form that ‘being’ takes for norms. Hence, the concept of a ‘non-​valid’ or ‘non-​binding’ norm is a contradiction in terms. Hence also, a norm’s source is the source of its validity. The Stufenbau theory helps us to see sources as meta-​law, as law on law creation. Law’s content may originate in non-​legal considerations; we prohibit rape, because we are abhorred and morally indignant. We prohibit the operation of motor vehicles while intoxicated, because we want to see fewer road traffic accidents. These motivating factors are external, but they are not, on a genuinely legal view, the law creator, i.e. validity giver. A similar problem arises for the other misconceptions resulting from traditional sources doctrine. If the sources of any legal order are necessarily coordinated, then imagined necessity takes precedence over a scholarly analysis of ‘actual’ legal relationships. It may be the case that treaty, custom, and principles are coordinate, but this relationship is not necessary. The Stufenbau theory, with its focus on positive empowerment norms helps us frame the question in the only way commensurate with the nature of law as norms: it is a matter of positive law whether the sources are in a hierarchical relationship. It is, then, a matter for doctrinal scholarship—​not legal theory—​to analyse the placement of empowerment norms and the creation of norms under them. This is true a fortiori for inter-​norm and inter-​source derogation. If and where one source (one empowerment norm) is not subordinate to another source, then there is no validity-​dependence relationship between them. The default position for coordinated sources is therefore that one source (or one of its resultant norms) does not influence the other source or its norms, particularly that they do not derogate each other.

 Kelsen, Allgemeine Theorie, p. 49.   50  See, perhaps, Wolfrum, ‘Sources’, paras 6, 16.

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354    sources in legal-positivist theories

III.  The Constitution of International Law We are now able to apply this theory to international law, to switch from legal theory to doctrinal legal scholarship. However, not even a doctrinal scholarship based on the Stufenbau theory can solve all problems. At many points, though, it will be able to frame the question in a manner that does not confound theory and positive law, does not commingle incommensurable scholarly methods, and does not try to pass off political activism as quest for a better understanding of law. The remainder of this chapter will therefore spell out some of the implications of the Stufenbau theory for a structural analysis of one specific part of the international legal order: the so-​called ‘original’ sources of international law. For example, those scholars who wish to find out how customary international law is created are confronted by claims and counter-​claims about ‘verbal practice’ as fulfilment of a criterion for customary law creation. Whether ‘verbal practice’ can serve as part of the objective element of custom-​formation is irrelevant here, but the arguments used are relevant, as they demonstrate how this ‘epistemological default empiricism’, a type of circular argument permeating international legal scholarship, operates.51 It is this: we know that practice is relevant because practice tells us that practice is relevant. Mark Villiger makes an argument of how customary international law as a source of international law (producer, not product) is shaped: ‘the above authorities [denying the validity of verbal acts] cannot support their views on State practice with State practice’.52 For orthodoxy, a source is the method or process of how law is created, rather than the law on law creation (section II.3.a). And these methods or processes are determined by arguments from fact: behaviour alone determines how law is created and sources are shaped. But this is not the way to go: if international law is to be law properly speaking, i.e. a normative order, then its sources must be law as well. Norms determine the content of the law on the creation also of customary international law, for example whether both opinio and usus are required or whether ‘verbal practice’ is usus. The law also determines a much more fundamental question: what are the sources of international law and how do they come about? This would be a sort of meta-​meta-​law and the question we need to ask is which norms of international law authorize the creation of source-​law, i.e. the norms that authorize the creation of substantive law.53 For the Stufenbau theory, this highest echelon   See Kammerhofer, Uncertainty in International Law, pp. 132, 200, 204.   Mark Villiger, Customary International Law and Treaties: A Manual on the Theory and Practice of the Interrelation of Sources, 2nd edn (The Hague: Kluwer Law International, 1997), pp. 19–​20. 53   Alfred Rub, Hans Kelsens Völkerrechtslehre: Versuch einer Würdigung (Zurich: Schulthess, 1995), pp. 312–​13. 51

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jörg kammerhofer   355 of positive norms of international law—​the positive norms directly connected to the basic norm (Grundnorm)54—​is the ‘constitution’ of international law.55 The task of scholarship is, in other words, ‘an analysis of the positive norms of the constitution of international law which regulate the creation of its general norms’.56 However, the orthodox scholarly consensus is that international treaty law, customary international law, and ‘general principles of law’ are original sources of international law. The mainstream believes that these sources are part of the realm of facts; consequently, they are also not dependent on further (yet higher) law. The perceived originary nature of all three sources mentioned in Article 38 of the Statute of the International Court of Justice (ICJ)57 is, indeed, a complicating factor for the Pure Theory of Law as well, because if true, it would threaten the unity of international law. But to discuss this problem we will have to take a slight detour.

1. Options for Structuring the Sources of International Law Let us assume for a moment that orthodox source doctrine is right and that international law has at least three main sources, viz. treaty, custom, and principles. Logically, we could arrange them in varying constellations and there is a tradition in international legal scholarship discussing this ‘constitutional architecture’. (1) Only one source is ‘original’ and supreme; the other sources are ‘derived’ from it (see Figure 1).58 (a) It was fashionable in the early twentieth century to put treaty law at the top of such a source hierarchy. Customary law was imagined as a tacit contract,59 but it is not a pactum tacitum, as opinio iuris cannot possibly be an agreement between subjects.60 We also do not have a treaty which specifies the sources of international law tout court. The ICJ Statute is not the empowerment norm for the creation of all general international law and its drafters did not want it to be. Apart from the temporal limitation (only post-​1921 customary international 54   Josef L. Kunz, ‘The “Vienna School” and International Law’, New York University Law Quarterly Review 11 (1934): 370–​421, 412. 55   Kelsen’s ‘constitution in the material sense’; Kelsen, Reine Rechtslehre, p. 228; see also Robert Alexy, ‘Hans Kelsens Begriff der Verfassung’, in Stanley L. Paulson and Michael Stolleis, eds, Hans Kelsen: Staatsrechtslehrer und Rechtstheoretiker des 20. Jahrhunderts (Tübingen: Mohr Siebeck, 2005), 333–​52, 333. 56  ‘eine Analyse der positiven, die generelle Normerzeugung regelnden Rechtssätze der Völkerrechtsverfassung’; Rudolf Aladár Métall, ‘Skizzen zu einer Systematik der völkerrechtlichen Quellenlehre’, Zeitschrift für öffentliches Recht 11 (1931): 416–​28, 421. 57   Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993). 58  Rub, Hans Kelsens Völkerrechtslehre, p. 337. 59   Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts:  Beitrag zu einer reinen Rechtslehre (Tübingen: JCB Mohr, 1920), pp. 217, 262, 284; Alfred Verdross, Die Verfassung der Völkerrechtsgemeinschaft (Vienna: Springer, 1926), p. 29. 60  Kammerhofer, Uncertainty in International Law, pp. 77–​8.

356    sources in legal-positivist theories 1a

1b

G

P

G …

C

T C

1c

G

…

T

P

…

T

C

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Figure 1:  First option: one source is supreme. G: Grundnorm; T: international treaty law; C: customary international law; P: general principles of law; . . .: additional sources.

law would be covered), would it not be rather surprising to find the fountain-​head of all of international law in the applicable law clause for the ICJ? (b) It makes much more sense to put customary international law at the top of the pyramid. In 1952 Kelsen argued that international law proceeds from the Grundnorm: ‘States ought to behave as they have customarily behaved.’61 If pacta sunt servanda, as the empowerment norm for treaties, as well as the empowerment norms for other sources, are all positive norms of customary international law, then this design looks like it is workable. We might indeed be able to find opinio iuris to that effect, but it is doubtful whether the mode of norm creation relying on custom is capable of creating empowerment norms. Customary norms are crucially dependent on usage, factual patterns; these form the content of the resultant norm. However, these patterns (behavioural regularities) are only outward manifestations (e.g. the signing of a treaty) and cannot reflect the authorization for validity (ought) creation.62 (2) We could imagine that there is one positive norm empowering the creation of all sources (see Figure 2),63 with Verdross and Bruno Simma speaking of ‘inter-​ State consensus [as] the original source of international law’.64 For them, ‘these constitutional norms are not a series of hypothetical norms, but actual norms constituting the basis for customary international law and formal treaty law’.65 They do not see consensus as a source of validity for international law,66 but we could imagine it to be. In that case, consensus would form the content of the highest positive norm. Read in the light of the Pure Theory of Law, it would be international law’s ‘historically first constitution’ (historisch erste Verfassung).67 Kelsen develops this notion in the context of the validity regressus (section II.2):  Kelsen, Principles of International Law, p. 418.  Kammerhofer, Uncertainty in International Law, pp. 72–​4. 63   Verdross and Simma, Universelles Völkerrecht, pp. 59–​60, 324–​7. 64   ‘Die originäre Völkerrechtsquelle des zwischenstaatlichen Konsenses’: ibid., p. 324. 65   ‘Gleichwohl bilden jene Verfassungsnormen kein bloß hypothetisches, sondern ein dem VGR und dem förmlichen Vertragsrecht tatsächlich zugrundeliegendes Normengebilde.’ Alfred Verdross, Die Quellen des universellen Völkerrechts (Freiburg: Rombach, 1973), pp. 20–​1. 66   Verdross and Simma, Universelles Völkerrecht, p. 327. 67  Kelsen, Principles of International Law, p. 411. 61

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jörg kammerhofer   357 2

3

G ICL T

C

P

…

GT

GC

GP

G…

T

C

P

…

Figure 2:  Second option: a positive constitution beyond the traditional sources. Third option: each source is its own legal order. ICL: international constitutional law. If one asks why norms which regulate the creation of general norms are valid, one may find a yet older constitution, i.e. the validity of the present constitution is based in its being created according to the provisions of a previously valid constitution by way of an amendment of the constitution. Thus at the end one comes to the historically first constitution, which cannot be founded in a positive norm, a constitution which came into validity through a revolutionary process. If one asks why the historically first constitution is valid, the answer can only be that the validity of this constitution, the assumption that it is a binding norm, must be presumed.68

The historically first constitution is not based on another positive norm; it is the hierarchically highest positive norm of a positive normative order. Its validity therefore has to be presupposed through the Grundnorm if one wants to perceive it as a norm. The historically first constitution is thus directly below the Grundnorm.69 Any positive normative order necessarily has a highest positive norm. Thus, the second option can work as a matter of a theory of norms. However, there is a doctrinal hurdle: if we believe that there is such a positive norm authorizing the creation of sources (e.g. via original consensus), we need to prove that there is such a positive norm. And that will probably be impossible, much like trying to prove the actual existence of a social contract. It is unlikely that the community of States at some point (maybe in the seventeenth century) agreed—​ either expressly or tacitly—​to found the sources of international law. If this norm is to be part of positive law, it needs to be proven to be positive law, positus, just the same.

68   ‘[F]‌ragt man nach dem Geltungsgrund der Normen, die die Erzeugung der generellen Normen regeln . . . so gerät man vielleicht auf eine ältere Staatsverfassung; daß heißt: man begründet die Geltung der bestehenden Staatsverfassung damit, daß sie gemäß den Bestimmungen einer vorangegangenen Staatsverfassung im Wege einer verfassungsmäßigen Verfassungsänderung . . . zustande gekommen ist; und so [gerät man] schließlich auf eine historisch erste Staatsverfassung, die nicht mehr auf eine [positive] Norm zurückgeführt werden kann, eine Staatsverfassung, die revolutionär . . . in Geltung getreten ist . . . [F]ragt man nach dem Grund der Geltung der historisch ersten Staatsverfassung . . . dann kann die Antwort . . . nur sein, daß die Geltung dieser Verfassung, die Annahme, daß sie eine verbindliche Norm sei, vorausgesetzt werden muß . . .’; Kelsen, Reine Rechtslehre, p. 203. 69   Métall, ‘Skizzen’, p. 421.

358    sources in legal-positivist theories (3) This is perhaps the most intriguing option, both as a matter of doctrinal scholarship and for its theoretical implications. If we cannot prove a legal connection between sources, then, trivially, they are not connected. This default option would mean that on a structural analysis, we have not found that the empowerment norms for custom, treaty, and so on are part of the same Stufenbau.70 If (at least) the three main sources are not united by law, then on a consistently normativist analysis they are different legal orders. ‘International law’ would cease to be the name for a legal order and would merely be a collective name, given to a family of legal orders on the basis of an empirical classification.

2. The Problem of Multiple Original Sources of Law We can now return to the problem discussed above. If it is true that each of the three main sources are original and equal, the default option seems to follow as a matter of logic. If we apply the Stufenbau theory to this structural option, then each source is directly below the Grundnorm. The question is then whether the Pure Theory of Law can prove that in this case there are three separate legal orders or whether there is a case to be made for normative unity nonetheless. This will briefly be discussed here, as this theoretical distinction has great fragmentary power. As discussed above, if a structural analysis of validity relationships of the international legal order comes to the conclusion that a connection by way of positive norms does not exist, there is no such connection. If, then, the positive norm authorizing the creation of treaties is not, in turn, a product of a yet higher positive empowerment norm, we must presuppose a Grundnorm in order to be able to cognize treaty law as norms. However, the Grundnorm also ‘constitutes the unity of a multitude of norms by being the basis for the validity of all norms belonging to this order’.71 It unites one legal order,72 and in the last instance, it identifies its membership and excludes ‘norms’ not ultimately based on it (see Figure 3). Yet, as a mere epistemic mechanism—​as something that happens for everyone (even non-​Kelsenians) as soon as they cognize ‘something’ as Ought, as norm—​the Grundnorm is not

  Hinting at this possibility: Kelsen, Das Problem der Souveränität, pp. 106–​7.   ‘[I]‌ndem sie den Grund für die Geltung aller zu dieser Ordnung gehörigen Normen darstellt.’ Kelsen, Reine Rechtslehre, p. 197. 72   Métall, ‘Skizzen’, p. 416; Behrend, Untersuchungen zur Stufenbaulehre, pp. 68–​9; Uta Bindreiter, ‘Presupposing the Basic Norm’, Ratio Juris 14 (2001):  143–​75, 147; Robert Walter, ‘Entstehung und Entwicklung des Gedankens der Grundnorm’, in Walter, ed., Schwerpunkte der Reinen Rechtslehre (Vienna: Manz, 1992), 47–​59, 47; Robert Walter, ‘Die Grundnorm im System der Reinen Rechtslehre’, in Aulis Aarnio, Stanley L. Paulson, Ota Weinberger, Gerg Henrik von Wright, and Dieter Wyduckel, eds, Rechtsnorm und Rechtswirklichkeit:  Festschrift für Werner Krawietz zum 60. Geburtstag (Berlin: Duncker & Humblot, 1993), 85–​99, 92–​3. 70 71

jörg kammerhofer   359

G T

C

P

…

GA

GB

GC

NA

NB

NC

…

Figure 3:  Left: a complex Grundnorm unites the sources. Right: borderline case—​each norm is its own normative order. NA, B, . . . norms prescribing behaviour.

determinative of the content legal order but responds to the content of the highest norm of the order which is perceived. It stands to reason that because of this purely epistemic function (object-​creative only in an epistemic, not in an ontic sense) and the resultant malleability of the Grundnorm, the presupposition of such a basic ‘norm’ is not able to unite two different positive sources into one normative order: ‘it limits itself to appointing the law-​ creative authority and its content is thus by its very terms limited to singularity’.73 In other words, we cannot create a legal order out of two sets of positive norms simply by an act of presupposition: we cannot presuppose a connection that is not ‘there’, i.e. reflected in the validity relationship between positive norms. On this view, commensurate with the foundation of the Pure Theory of Law, the Grundnorm cannot serve as ‘bracket’. The other view, also largely commensurate with that theory, argues that while the presupposition of a Grundnorm is necessary for norm cognition, it can be presupposed at any point.74 If that is so, it might be the case that we are also relatively free to construct a Grundnorm that is complex, incorporating more than one highest positive empowerment norm and thus somewhat reminiscent of the Hartian Rule of Recognition. Equally, it can be argued that we can incorporate the entirety of the empowerment norm in the Grundnorm. In the case of customary international law, the requirement of the material and subjective elements, the requisite time-​frame, participation level, and repetitions, the exact shape of opinio iuris, including the rules for the persistent objector and so on, would all be part of the basic norm. This seems to be exactly what orthodox scholarship is arguing when it pushes source law into the realm of facts, and the simplest case of a normative order seems to be supporting this. In this case, only one positive norm would exist—​perhaps a man who had never issued an order telling another to ‘stand up!’—​and it would be cognizable only if we presupposed a Grundnorm. In this case, the conditions for the creation of that order would be incorporated in the Grundnorm and the 73   ‘[S]‌ie beschränkt sich auf die Einsetzung der Rechtssetzungsautorität und ist deshalb begrifflich schon ihrem Inhalt nach immer nur singulär.’ Behrend, Untersuchungen zur Stufenbaulehre, p. 28. 74  Kammerhofer, Uncertainty in International Law, p. 193.

360    sources in legal-positivist theories ‘highest’ (in this case:  only) positive norm would be an obligatory norm, not an empowerment norm. It may be true that the locus of the presupposition of a Grundnorm is variable and that this has the potential to fragment our conception of legal orders, and gives legal scholarship as structural analysis great leeway.75 However, it is still the better argument that neither stratagem can work to unite international law absent a positive legal connection. Legal scholarship must cognize positive law as it is, not as it might be, and the presumption of a Grundnorm cannot create a connection where positive norms do not. Even in the borderline case of the single norm order (or in that of incorporating all conditions in the Grundnorm), the content of the presupposition would follow the conditions for the creation of the positive norm. Norm A would then have Grundnorm A, but already the next norm created by that man (norm B) would have Grundnorm B, not a generalized version of the norm-​creation conditions for A and B—​and so on for all norms that man issues (see Figure 3). Both sides have good arguments, however, but we cannot hope to exhaustively discuss, let alone resolve the issue in this chapter.

IV. Conclusion The Stufenbau theory comes at a price. It does not solve all the problems of international legal source doctrine. Moreover, it largely does not want to, because that would transcend the realm of scholarship as it defines it. Also, like any theory, it requires us to accept certain premises and exclude others. For the Stufenbau theory—​ as part of the Pure Theory of Law, committed to the ‘purity’ of legal scholarship—​ these exclusionary preconditions are greater than for other approaches. Nowhere else is the eclecticism of approaches and methods, the ‘holistic’ view of the world, problematized to such a degree as in the Pure Theory of Law. No other theory celebrates ‘pluridisciplinarity’ of methods,76 their separate yet equal status, to such an extent. However, applying the Stufenbau theory to international law also brings great clarity to a traditional and traditionally rather muddled debate. First, false necessities are deconstructed: a ‘source’ of law is not an absolute, it is part of the law and can appear anywhere within a legal order. Secondly, the structural analysis of the   ibid., pp. 187–​93, 235.   Otto Pfersman, ‘Hans Kelsens Rolle in der gegenwärtigen Rechtswissenschaft’, in Robert Walter, Werner Ogris, and Thomas Olechowski, eds, Hans Kelsen: Leben–​Werk–​Wirksamkeit: Ergebnisse einer Internationalen Tagung, veranstaltet von der Kommission für Rechtsgeschichte Österreichs und dem Hans Kelsen-​Institut (19.–​21. April 2009) (Vienna: Manz, 2009), 367–​87, 378. 75

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jörg kammerhofer   361 international legal order is put on a more sustainable footing: by latching on to the only necessary element of law—​its validity as its very form of existence—​and constructing relations between norms on that basis, doctrinal scholarship is allowed to focus on the law that ‘is’ and is allowed to ignore wishes and demands from the outside. Thirdly, it clears the way for debates about the operation of law: we benefit from this level-​headed structuring of the law for the even more vexed issues of norm conflict and derogation, as well as of the application and interpretation of law. Without clarity on structure, how can we expect clarity on change? And, at the end of the day, is not a little ‘fasting’, an end to the decadent gluttony of argument and method, a small price to pay for clarity of cognizance for us scholars, committed to—​nay, defining ourselves as—​seekers of good knowledge?

Research Questions • How is the Stufenbau theory shaped in its present state of development and how does it avoid the misconceptions propagated by orthodox international legal sources doctrine? • What is the potential impact of applying the Stufenbau theory in doctrinal scholarship on international law?

Selected Bibliography Behrend, Jürgen, Untersuchungen zur Stufenbaulehre Adolf Merkls und Hans Kelsens (Berlin: Duncker & Humblot, 1977). Kammerhofer, Jörg, Uncertainty in International Law: A Kelsenian Perspective (Abingdon: Routledge, 2010). Kammerhofer, Jörg, ‘Robert Walter, die Normkonflikte und der zweite Stufenbau des Rechts’, in Clemens Jabloner, Dieter Kolonovits, Gabriele Kucsko-​Stadlmayer, René Laurer, Heinz Mayer, and Rudolf Thienel, eds, Gedenkschrift Robert Walter (Vienna: Manz, 2013), 237–​56. Kammerhofer, Jörg, ‘Hans Kelsen in Today’s International Legal Scholarship’, in Jörg Kammerhofer and Jean d’Aspremont, eds, International Legal Positivism in a Post-​Modern World (Cambridge: Cambridge University Press, 2014), 81–​113. Kelsen, Hans, Reine Rechtslehre, 2nd edn (Vienna: Deuticke, 1960). Merkl, Adolf Julius, ‘Prolegomena einer Theorie des rechtlichen Stufenbaues’, in Alfred Verdross, ed., Gesellschaft, Staat und Recht: Festschrift für Hans Kelsen zum 50. Geburtstag (Vienna: Springer, 1931), 252–​94.

362    sources in legal-positivist theories Pellet, Alain, ‘Article 38’, in Andreas Zimmermann, Christian Tomuschat, and Karin Oellers-​ Frahm, eds, The Statute of the International Court of Justice:  A  Commentary (Oxford: Oxford University Press, 2006), 677–​92. Walter, Robert, Der Aufbau der Rechtsordnung:  Eine rechtstheoretische Untersuchung auf Grundlage der Reinen Rechtslehre (Graz: Leykam, 1964). Wiederin, Ewald, ‘Die Stufenbaulehre Adolf Julius Merkls’, in Stefan Griller and Heinz Peter Rill, eds, Rechtstheorie: Rechtsbegriff–​Dynamik–​Auslegung (Vienna: Springer, 2011), 81–​134. Wolfrum, Rüdiger, ‘Sources of International Law’, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2011), .

Section  I X

SOURCES IN LEGAL-FORMALIST THEORIES

Chapter 17

SOURCES IN LEGAL-​F ORMALIST THEORIES THE POOR VEHICLE OF LEGAL FORMS

Jean D’Aspremont

I. Introduction Notwithstanding the common fashion of vocally repudiating formalism, most international lawyers are engaged in a practice where legal forms carry some constraints and authority of a sort. Even the self-​declared rebellions against formalism witnessed in the twenty-​ first century can be construed as projects of reinvention of formalism,1 rather than repudiations 1   See e.g., W. Michael Reisman, ‘International Lawmaking: A Process of Communication’, American Society of International Law Proceedings 75 (1981):  101–​20, 110 (where he emphasizes the need for authority signals which can be formal). On the idea that New Haven did not shed formalism but re-​ invented it through a form of policy conceptualism, see the remarks of Hengameh Saberi, ‘Yale’s Policy Science and International Law. Between Legal Formalism and Policy Conceptualism’, in Anne Orford and Florian Hoffmann, eds, The Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press, 2016), 427–​51.

366    sources in legal-formalist theories thereof.2 Interestingly, in their engagement with formalism, international lawyers have continued to give a central role to the sources which—​whether in its current understanding or in a revamped version3—​they have construed as a vehicle of formalism. Such centrality of the sources as a tool to formalize international legal argumentation has not even been put into question by the severe discontent towards the doctrine of sources witnessed in the twentieth century.4 This chapter is premised on the idea that international lawyers are all formalists in some ways and that they continue to construe the sources of international law as a vehicle of their formalism. It is against the backdrop of such premises that this chapter reflects on how sources and legal forms conduce to one another. More specifically, it examines the extent to which the sources of international law are instrumental in the formalization of the determination of the contents of international legal rules and of the ascertainment of international legal rules.5 It ultimately argues that the sources of international law fail to perform, in international legal thought and practice, the formalization traditionally bestowed upon them. Before addressing the role of sources in formalist thinking in international legal thought and practice, this chapter distinguishes between two variants of formalist theories, namely content-​determination formalism and law-​ascertainment formalism (section II: Variants of Formalism in International Legal Thought and Practice). It is only after these two types of formalist theories have been clearly distinguished that the chapter embarks on an evaluation of the role and limits of sources in the formalization of content-​ determination and law-​ ascertainment processes and demonstrates that the sources of international law turns out to be a poor vehicle for formalism (section III: The Sources as a Vehicle of Formalism in Content-​ Determination and Law-Ascertainment). It ends with brief concluding remarks (section IV: Concluding Remarks). Two preliminary observations must be formulated. First, an important methodological and terminological caveat is necessary. The following sections, for the sake of argumentative and didactic convenience, speak about the doctrine of sources. This reductionist move should, however, not be construed as a denial of the fact that the doctrine of sources is subject to varying understandings in 2  For a similar argument, see Umut Özsu, ‘Legal Form’, in Concepts for International Law—​ Contributions to Disciplinary Thought, edited by Jean d’Aspremont and Sahib Singh (Cheltenham: Edward Elgar, forthcoming). 3   See e.g., Harlan G. Cohen, ‘Finding International Law, Part II: Our Fragmenting Legal Community’, NYU Journal of International Law and Politics 44 (2012): 1049–​1107. See also Jean d’Aspremont, ‘Towards a New Theory of Sources’, in Orford and Hoffmann, eds, The Oxford Handbook on the Theory of International Law, 545–​63. 4   For an overview, see d’Aspremont, ‘Towards a New Theory of Sources’. 5   The present chapter contrasts with my earlier work as it embarks on an examination of the role of sources in formalist theories, and not, as was attempted earlier, the role of formalism in the doctrine of sources. See Jean d’Aspremont, Formalism and the Sources of International Law. A  Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011).

jean d’aspremont   367 international legal scholarship as well as possible fragmenting processes in the practice of international courts and tribunals.6 In that sense, this chapter is consciously premised on an oversimplified portrayal of the doctrine of the sources of international law. However, this oversimplification is necessary to allow the following discussion to engage in a meaningful and intelligible way with the intricacies of formalist theories and the varying functions of the sources of international law therein. Secondly, it must be acknowledged that the instrumentality of the sources of international law in the formalization of international legal argumentation goes much beyond the following discussion. Indeed, and as I have argued elsewhere,7 sources allow the self-​referentiality of all the main doctrines of international law which supposedly constitute rules that have been created through the law-​making channels recognized by the sources of international law. This chapter is not the place to examine this foundational role of the sources of international law with respect to the formal constraints on international legal argumentation as a whole. Yet, some manifestations thereof will be touched upon in the following sections.

II.  Variants of Formalism in International Legal Thought and Practice Formalism can generically be understood as the acknowledgment of the constraining role of legal forms in legal argumentation and their correlative contribution to the generation of pervasive authority (or bindingness) of legal arguments.8 In this generic sense, formalism is intrinsically associated with two inseparable ideas: constraint and authority. Indeed, it is the constraining effect of legal forms on decisional opportunities that allows the production of authority (or bindingness), for legal forms curtail substantively (or morally) motivated and content-​dependent decision-​making processes.9 For the sake of this

  See ­chapter 41 by Raphaël van Steenberghe and ­chapter 42 by Steven R. Ratner in this volume.   Jean d’Aspremont, International Law as a Belief System (Cambridge: Cambridge University Press, 2017). 8   For a discussion of the meaning of formalism in literary theory, see c­hapter  18 by Frederick Schauer in this volume. 9   For some various associations between formalism and the idea of constraint, see Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge: Harvard University Press, 6 7

368    sources in legal-formalist theories chapter, legal forms refer to any linguistic sign, whether textual or of another nature.10 Needless to say, such an elementary and generic understanding of formalism accommodates numerous variants.11 Most of them pertain to the constraining role of legal forms in the determination of the content of rules in authoritative decision-​ making processes.12 This means that formalism is most commonly associated with constraining law appliers’ leeway when extracting the content of a rule which they are due to apply to the specific set of facts falling within their jurisdiction. In that sense, formalism is most commonly construed as conveying a hermeneutic theory about content-​determination that is content-​independent.13 This is what is called here content-​determination formalism—​what Frederick Schauer calls law-​interpretation formalism in his chapter.14 The most extreme version of content-​determination formalism proposes to infer the constraints of legal forms from some sort of immanent rationality according to which law comes with internal intelligibility. It is premised on the idea that content of rules can sustain itself from within in a non-​instrumental way.15 This radical version of formalism presupposes meaning-​based gaplessness.16 Such an extreme type of content-​determination formalism is meant to be the antithesis of radical rule scepticism and legal realism, which construe law application as totally indeterminate and equate law with law application.17 It is sometimes called ‘old

2009), p. 30. See also the variants of formalism discussed (and critiqued) by Roberto M. Unger, ‘The Critical Legal Studies Movement’, Harvard Law Review 96 (1983): 561–​675, 563–​76. 10   In his chapter, Schauer seems to adopt a purely textual understanding of legal forms; see c­ hapter 18 by Frederick Schauer in this volume. 11   On the many ‘manifestations’ of formalism pervading the phenomenon of law, see Frederick Schauer, ‘Formalism’, Yale Law Journal 97 (1988): 509–​48, 510. See also the taxonomy offered by Duncan Kennedy, ‘Legal Formalism’, Encyclopedia of the Social & Behavioral Sciences 13 (2001): 8634–​8. See also the forms of formalism discussed by Richard Pildes, ‘Forms of Formalism’, University of Chicago Law Review 66 (1999): 607–​21; see also Robert S. Summers, ‘How Law is Formal and Why It Matters’, Cornell Law Review 82 (1997): 1165–​1229, esp. 1180–​1. 12  On this association, see Dennis Patterson, Law and Truth (New  York:  Oxford University Press, 1996), p. 26. See also the remarks of Oliver Corten, Méthodologie du droit international public (Bruxelles: Editions de l’Université de Bruxelles, 2009), pp. 57 ff. 13   It must be acknowledged that the notion of content independency is most of the time discussed in connection with authority of law. See Schauer, Thinking Like a Lawyer, p. 62. See also R. A. Duff, ‘Inclusion and Exclusion: Citizen, Subjects and Outlaws’, Current Legal Problems 51 (1998): 241–​66, 247; Frederick Schauer, ‘The Questions of Authority’, Georgetown Law Journal 81 (1992): 95–​115. 14   See ­chapter 18 by Frederick Schauer in this volume. 15   Ernest J. Weinrib, ‘Legal Formalism: On the Immanent Rationality of Law’, Yale Law Journal 97 (1988): 949–​1016. 16   On the notion of meaning-​based gaplessness, see Kennedy, ‘Legal Formalism’, p.  8635. On the completeness presupposed by formalism, see Pildes, ‘Forms of Formalism’, p. 608. See also Patterson, Law and Truth, p. 22. 17   Such a binary understanding of formalism is found in the The Concept of Law. H.  L. A.  Hart construes formalism and rule-​scepticism as the ‘Scylla and Charybdis of justice theory’ and rejects

jean d’aspremont   369 formalism’.18 The rationale of such formalism is usually found in the predictability that legal forms are meant to provide to the behaviour of law-​applying authorities and the enhanced legitimacy of their decisions.19 Some more subtle understandings of content-​determination formalism locate the constraining role of legal forms not in an idealist or immanent rationality, but in linguistic limitations on the power of a law applier,20 meant to create a-​contextual rigidity in legal argumentation.21 In that sense, formalism is very much associated with legal reasoning deploying itself content-​independently.22 It must be made clear that variants of formalism are not only variants of hermeneutic theories of content-​determination. Formalism has also been found in the ascertaining role of legal forms in processes whereby legal rules are identified as legal rules in a content-​independent way.23 In that other sense, formalism is associated with law-​identification processes and principally with doctrines of sources. Whilst this type of formalism has also been occasionally dubbed ‘neo-​formalism’,24 it is what is called, for the sake of this chapter, law-​ascertainment formalism—​what Schauer calls source formalism.25 According to the account made above, two types of formalism thus stand out in international legal thought and practice, namely content-​determination formalism and law-​ascertainment formalism. The account made here accordingly plays down the distinctiveness of what Schauer calls outcome-​determinative formalism,26 which, according to the present author, constitutes one of the manifestations of what has been called above content-​determination formalism. It is further argued that this restriction of the discussion to only two manifestations of formalism is further underpinned by the debate on what has been called ‘deformalization’; that is, the move away from the constraining effect of legal forms on decisional opportunities that allows the production of authority or bindingness. Indeed, the contestation of the role of legal forms in terms of authority or bindingness that is witnessed them both. See H. L. A. Hart, The Concept of Law, 2nd edn (Oxford: Oxford University Press, 1994), pp. 124–​54. 18  Gerald J. Postema, Legal Philosophy in the Twentieth Century:  The Common Law World (Dordrecht: Springer, 2001), p. 389. 19   See Weinrib, ‘Legal Formalism’; Shirley V. Scott, ‘International Law as Ideology: Theorizing the Relationship between International Law and International Politics’, European Journal of International Law 5 (1994): 313–​25, esp. 322. See also the remarks of Martti Koskenniemi, ‘What is International Law For?’, in Malcolm D. Evans, ed., International Law, 2nd edn (Oxford: Oxford University Press, 2006), 57–​76, 69. 20  Schauer, ‘Formalism’.   21  ibid., p. 535. 22   See Schauer, Thinking Like a Lawyer, p. 31; Schauer, ‘Formalism’, p. 539. 23  D’Aspremont, Formalism. 24   Sahib Singh, ‘International Law as a Technical Discipline: Critical Perspectives on the Narrative Structure of a Theory’ (May 26, 2013), Appendix 2 in Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2013 paperback edition), 236–​61. 25   See chapter 18 by Frederick Schauer in this volume.    26 ibid.

370    sources in legal-formalist theories in contemporary international legal scholarship is similarly articulated around the two abovementioned types of formalism, namely content-​determination formalism and law-​ascertainment formalism. In this respect, it must be noted that it is probably the very extreme form of content-​determination formalism—​i.e. formalism as immanent rationality and internal intelligibility of rules—​that has attracted the greatest criticisms,27 and fuelled deformalization in legal thought.28 Such a type of formalism has been pilloried for postulating a mechanical extraction of a pre-​existing rationality;29 that is, for resting on ‘abuse of logic’,30 ‘abuse of deduction’,31 or ‘mechanical jurisprudence’.32 It has also been dismissed for being a responsibility-​ avoidance technique in that the law-applier can hide its decision-​making behind legal forms.33 It has even become a critical category in its own right and has come to embody what is problematic with legal argumentation.34 All these critiques and calls for deformalization have borne upon content-​determination formalism and have been premised on the idea that formalism is first and foremost a hermeneutic theory.35 In that sense, most of the debate on deformalization has revolved around content-​determination formalism. All this does not mean, however, that law-​ascertainment formalism has been spared by criticisms in the debate on deformalization. In fact, law-​ascertainment formalism has similarly been put into question by a whole range of contemporary scholarly constructions, including the rise of non-​formal law-​ascertainment criteria (e.g. the ascertainment of customary law based on ethical principles, the rise of interactionist approaches, effect-​and impact-​based approaches to law-ascertainment, or the rise of so-​ called process-​ based approaches to law-ascertainment),36 the understanding of international law in terms of ‘process’ rather than ‘rules’,37 the   For an overview of those criticisms, see Schauer, Thinking Like a Lawyer, p. 30.  Unger, ‘The Critical Legal Studies Movement’, p.  571; R. Unger, The Critical Legal Studies Movements (1986), 1–​2; Duncan Kennedy, ‘Legal Formality’, Journal of Legal Studies 2 (1973): 351–​98. 29   Schauer, ‘Formalism’, p. 522. 30   Anthony J. Sebok, ‘Misunderstanding Positivism’, Michigan Law Review 93 (1995): 2054–​2132, 2093. 31   Duncan Kennedy, The Rise and Fall of Classical Legal Thoughts: With a New Preface by the Author, “Thirty Years Later” (Washington: Beard Books, 2006), p. xviii. 32   This is the famous expression of Roscoe Pound, ‘Mechanical Jurisprudence’, Columbia Law Review 8 (1908): 605–​23. 33   Schauer, ‘Formalism’, p. 543. 34   Kennedy, ‘Legal Formalism’, p. 8635. See also Brian Z. Tamanaha, Beyond the Formalist–​Realist Divide: The Role of Politics in Judging (Princeton: Princeton University Press, 2009). 35   On the realist criticisms of formalism as a theory of legal reasoning in adjudication, see generally Sebok, ‘Misunderstanding Positivism’, esp. p. 2071. 36  See the illustrations provided by Jean d’Aspremont, ‘The Politics of Deformalization in International Law’, Göttingen Journal of International Law 3 (2011): 503–​50, 508–​10. 37   In the same vein, see G. J. H. Van Hoof, Rethinking the Sources of International Law (Deventer: Kluwer, 1983), p. 283. See also one of the grounds of the criticisms of F. Kratochwil, Rules Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989), pp. 194–​200. See d’Aspremont, ‘The Politics of Deformalization’, pp. 508–​10. 27

28

jean d’aspremont   371 increasing importance attached to law-​making output by informal networks, or the turn to managerialism and expert-​ruling.38 The foregoing means that both content-​determination formalism and law-​ascertainment formalism have been the object of a wide range of criticisms and have weathered attempts to deformalize content-​determination and law-ascertainment. Irrespective of their merits,39 and actual impact,40 those criticisms and various moves towards deformalization in international legal thought and practice thus continue to reflect the distinction between content-​determination formalism and law-​ascertainment formalism which is embraced in the rest of this chapter. The distinction between content-​determination formalism and law-​ascertainment formalism that has been put forward in the previous paragraphs is certainly not ground-​breaking. This dichotomy is well known in jurisprudence and legal theory.41 What is more, this distinction between content-​determination formalism and law-​ ascertainment formalism mirrors the familiar differentiation between two distinct facets of interpretation, namely those interpretive processes geared towards the determination of the content of rules and those interpretive processes aimed at the ascertainment of the rules themselves.42 From the perspective of interpretation, content-​determination formalism corresponds to the attempt to formalize content-​ determination interpretive processes, while law-​ascertainment formalism expresses

  Martti Koskenniemi, ‘The Politics of International Law—​20 Years Later’, European Journal of International Law 20 (2009): 7–​19. 39   For an illustration of some of the manifestations of the anxiety brought about by deformalization, see James Crawford, ‘International Law as a Discipline and Profession’, Proceedings of the American Society of International Law 106 (2012):  471–​86, 483 and 486; Jan Klabbers, ‘Institutional Ambivalence by Design: Soft Organizations in International Law’, Nordic Journal of International Law 70 (2001): 403–​21, 420; Martti Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization’, Theoretical Inquiries of Law 8 (2007): 9–​36, 13; d’Aspremont, ‘The Politics of Deformalization’. See generally the remarks of Johannes G. Van Mulligen, ‘Global Constitutionalism and the Objective Purport of the International Legal Order’, Leiden Journal of International Law 24 (2001):  277–​304, 287. See also, Johannes G.  Van Mulligen, ‘Normativity’, in d’Aspremont and Singh, eds, Concepts for International Law (forthcoming). 40   As was indicated above, it can be argued that most of these criticisms and moves towards deformalization boil down to projects of reinvention of formalism rather than emancipations thereof. See Umut Özsu, ‘Legal Form’, in d’Aspremont and Singh, eds, Concepts for International Law (forthcoming). See also Jean d’Aspremont, ‘Bindingness’, in d’Aspremont and Singh, eds, Concepts for International Law (forthcoming). See also Saberi, ‘Yale’s Policy Science’. 41  Postema, Legal Philosophy, pp. 390–​3. See also Amalia Anaya, The Tapestry of Reason: An Inquiry into the Nature of Coherence and its Role in Legal Argument (Oxford: Hart, 2015); Ronald Dworkin, Law’s Empire (Cambridge: Belknap Press, 1986). 42   For a comprehensive discussion of this question, see Jean d’Aspremont, ‘The Multidimensional Process of Interpretation: Content-​Determination and Law-​Ascertainment Distinguished’, in Andrea Bianchi, Daniel Peat, and Matthew Windsor, eds, Interpretation in International Law (Oxford: Oxford University Press, 2015), 111–​31. See also Duncan B. Hollis, ‘The Existential Function of Interpretation in International Law’, in Bianchi et al., eds, Interpretation in International Law, 78–​110. See also ­chapter 20 by Duncan B. Hollis in this volume. 38

372    sources in legal-formalist theories the endeavour to formally constrain law-​ascertainment interpretive processes.43 The two types of formalisms outlined here are thus the reflection of two distinct key facets of interpretation, each of them being subject to formal constraints. Whilst the distinction between content-​ determination formalism and law-​ ascertainment formalism reflects a common distinction between different distinct interpretive processes, it must be acknowledged that practice often obfuscates the distinction between law-​ascertainment interpretive processes and content-​ determination interpretive processes. It happens that these distinct interpretive processes come to be perceived as being part of the same intellectual operation. This is well illustrated by the way in which the mainstream doctrine of customary international law is applied by international courts and tribunals.44 This practical difficulty is one of the reasons why the distinction between content-​determination interpretive processes and law-​ascertainment interpretive processes—​and thus the distinction between the two types of formalism highlighted above—​is sometimes played down.45 The difficulty in distinguishing between content-​determination formalism and law-​ascertainment formalism is probably exacerbated by some of their common denominators.46 It is true that these two types of formalism have much in common. Three interrelated common characteristics must be mentioned here. First, content-​ determination formalism and law-​ascertainment formalism share the same fate, namely the impossibility of creating stable meaning and knowledge about what law prescribes,47 and the tendency to fuel indeterminacy rather than to rein it in.48 Secondly, content-​determination formalism and law-​ascertainment formalism bear resemblance with one another—​and thus make their distinction more difficult—​by virtue of their very rationale. Indeed, whilst each of these two types of formalism entails the resort to legal forms to constrain a distinct aspect of interpretation, and   There are, of course, other facets of interpretation. Facts can also be the object of several types of interpretive processes. In that sense, establishing facts can also be understood as an interpretive process; see e.g., Jean d’Aspremont and Makane M. Mbengue, ‘Strategies of Engagement with Scientific Fact-​Finding in International Adjudication’, Journal of International Dispute Settlement 5 (2014): 240–​ 72. Yet, it remains that the two main facets of interpretation pertain to the determination of the content of rules and the ascertainment of these rules as legal rules. 44   For a classical account, see Hugh Thirlway, International Customary Law and Codification: An Examination of the Continuing Role of Custom in the Present Period of Codification of International Law (Leiden: A. W. Sijthoff, 1972). See also the literature cited and discussed in d’Aspremont, Formalism, ch. 7, esp. pp. 161–​74. 45   See Weinrib, ‘Legal Formalism’, p. 959. See also Corten, Méthodologie, pp. 213–​15. 46   On this question, see also ­chapter 20 by Duncan B. Hollis in this volume. 47  See, however, the less sceptical account of formalism in content-determination of Frederick Schauer in ­chapter 18 of this volume. 48   Singh, ‘International Law as a Technical Discipline’. For a taxonomy of different types of indeterminacy, see the distinction made between ordinary vagueness, transparent vagueness, and extravagant vagueness: Andrei Marmor, ‘Varieties of Vagueness in the Law’, USC Legal Studies Research Paper No. 12–​8 (July 2013), , accessed 16 November 2016. 43

jean d’aspremont   373 more broadly of legal argumentation, both are informed by the same pursuit for a constraining role for legal forms in interpretation and legal argumentation. Thirdly, and most importantly, content-​determination formalism and law-​ascertainment formalism share the same resort to the sources of international law to organize the role of legal forms. In fact, in seeking to formalize content-​determination interpretation and law-​ascertainment interpretation international lawyers have extensively relied on the sources of international law. In other words, and as will be further discussed in section III: The Sources as a Vehicle of Formalism in Content-​ Determination and Law-Ascertainment below, in both content-​determination formalism and law-​ascertainment formalism the sources of international law function as the main vehicle of legal forms and are made a central element of the formalization of each of these interpretive processes. And yet, this common understanding of the sources of international law as a vehicle of legal forms in both content-​determination formalism and law-​ascertainment formalism simultaneously constitutes what distinguishes them. It is the object of section III: The Sources as a Vehicle of Formalism in Content-​Determination and LawAscertainment to show that, whilst sources have occupied a central place in both content-​determination formalism and law-​ascertainment formalism, they have been conducive to very different approaches to formalism in content-​determination interpretive processes and law-​ascertainment interpretive processes. In that sense, whilst the resort to the sources of international law as a vehicle of formalism constitutes a common trait of content-​determination formalism and law-​ascertainment formalism, it simultaneously confirms their distinct character.

III.  The Sources as a Vehicle of Formalism in Content-​Determination and Law-Ascertainment It is submitted here that the central role of sources in the formalization of content-​determination and law-ascertainment is not only what unites these two processes but also what separates them. It is the object of the following paragraphs to review the variations of functions played by the doctrine of sources in content-​ determination formalism and law-​ascertainment formalism. This section submits that the doctrine of sources of international law has been given a very different role with respect to the formalization of content-​determination and law-​ascertainment formalistic theories. This section starts with a few observations on the role played

374    sources in legal-formalist theories by the doctrine of sources in the formalization of content-​determination interpretive processes (III.1), and is followed by a few remarks on the contribution of the doctrine of sources in the formalization of law-​ascertainment interpretive processes (III.2). In doing so, it will demonstrate that the sources of international law constitute a very poor vehicle of legal forms.

1. Sources and Content-​Determination Formalism Two distinct roles of the doctrine of sources in the formalization of content-​ determination interpretive processes ought to be mentioned here. The first role bestowed upon sources in the formalization of this facet of interpretation is the resort to the idea of customary rules. Indeed, in mainstream international legal scholarship, most hermeneutic theories are centred on the famous sets of rules found in the 1969 and 1986 Vienna Conventions on the Law of Treaties, which are construed as providing formal rules for the interpretation of treaties.49 Patterned after the rules of Vienna Conventions on the Law of Treaties, these hermeneutic theories are thought as constituting rules properly so-​called. Although other international legal acts are supposedly subject to distinct and specific regimes of content-​determination interpretation,50 such ‘ruleness’ has also prevailed when it comes to the content-​determination of non-​treaty legal acts.51 So formalism in content-​determination has manifested itself in the idea of formal rules of interpretation. Such a ruleness of hermeneutic theories is, of course, not without intrinsic conceptual problems pertaining to infinite regress,52 or the constraining power of disciplinary rules,53 the latter issue having fuelled the famous debate between

 Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331); Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (Vienna, 21 March 1986, (1986) 25 ILM 543, not yet in force). 50   Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403, 442, para. 94. See Efthymios Papstavridis, ‘Interpretation of Security Council Resolutions under Chapter VII in the Aftermath of the Iraqi Crisis’, International Affairs 56 (2007), 83–​118. 51   Andrea Bianchi, ‘Textual Interpretation and (International) Law Reading: The Myth of (In)determinacy and the Genealogy of Meaning’, in Pieter H. F. Bekker, Rudolf Dolzer, and Michael Waibel, eds, Making Transnational Law Work in the Global Economy—​Essays in Honour of Detlev Vagts (Cambridge: Cambridge University Press, 2010), 34–​55, 35. 52  ibid. See also, Ingo Venzke, ‘Post-​ Modern Perspectives on Orthodox Positivism’, in Jörg Kammerhofer and Jean d’Aspremont, eds, International Legal Positivism in a Postmodern World (Cambridge:  Cambridge University Press, 2014), 182–​ 210. See also George Letsas, ‘Strasbourg’s Interpretive Ethic:  Lessons for the International Lawyer’, European Journal of International Law 21 (2010): 509–​41, 534. 53   Jean d’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’, British Yearbook of International Law 84 (2014): 103–​30. 49

jean d’aspremont   375 Owen Fiss and Stanley Fish,54 to which Ronald Dworkin and Pierre Schlag later contributed.55 These jurisprudential and theoretical problems associated with the idea of rules on interpretation do not need to be addressed here. What is more interesting for the sake of this section is the fact that these hermeneutic rules—​patterned after the abovementioned Vienna Conventions—​are more specifically understood to be of a customary nature.56 And this is where the role of the doctrine of the sources of international law turns more tangible. Indeed, the doctrine of sources—​and especially the doctrine of customary international law—​allows the constraints on interpretation to take the form of rules and be endowed with bindingness, thanks to their customary pedigree. In other words, the doctrine of sources allows constraints on interpretation to be elevated into formal(ly) binding rules. The detour through the doctrine of sources to formalize constraints on interpretation is meant to reinforce the authority of these interpretive constraints among those involved in the practice of content-​determination and make them ‘obligation-​imposing’ for legal officials.57 It is as if constraints on interpretation of international law ought not only to be authoritative but ought, by virtue of the doctrine of sources, to be given formal bindingness. The very high threshold of authority (i.e. bindingness) which international lawyers seem to expect from the constraints on interpretation of international law is, of course, not entirely surprising. Elevating constraints on interpretation into formally binding customary rules seems to be conducive to preserving the illusion 54   Owen Fiss ‘Objectivity and Interpretation’, Stanford Law Review 34 (1982): 739–​63; Owen Fiss, ‘The Jurisprudence (?) of Stanley Fish’, Ade Bulletin 80 (1985): 1–​4. Stanley Fish, ‘Fish v. Fiss’, Stanford Law Review 36 (1984): 1325–​47. 55   Ronald Dworkin, ‘My Reply to Stanley Fish (and Walter Benn Michaels): Please Don’t Talk about Objectivity Any More’, in W. J. T. Mitchell, ed., The Politics of Interpretation (Chicago: The University of Chicago Press, 1983), 287. Pierre Schlag, ‘Fish v. Zapp: The Case of the Relatively Autonomous Self ’, Georgetown Law Journal 76 (1987): 37–​58. See also ­chapter 19 by Ingo Venzke in this volume. 56   Richard K. Gardiner, Treaty Interpretation (Oxford: Oxford University Press, 2008), pp. 13 ff. See generally Jean-​Marc Sorel, ‘Article 31’, in Pierre Klein and Olivier Corten, eds, Les Conventions de Vienne sur le Droit des Traités. Commentaire article par article (Bruxelles: Bruylant, 2006), 1289–​1334; Marc E. Villiger, Customary International Law and Treaties: A Study of their Interactions and Interrelations with Special Consideration of the 1969 Vienna Convention on the Law of Treaties (Dordrecht: Martinus Nijhoff Publishers, 1985), pp. 334 ff. ICJ, Territorial Dispute (Libyan Arab Jamahiriya v Chad) (Judgment) [1994] ICJ Rep 6; Kasikili/​Sedudu Island (Botswana v Namibia) (Judgment) [1999] ICJ Rep 1045, para. 1059; LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466, 501, para. 99; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 174, para. 94. See Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway (Belgium v Netherlands) (2005) 27 RIAA 35, para. 45; WTO, Japan-​Alcoholic Beverages II, Appellate Body Report (4 October 1996) WT/​DS810-​11/​AB/​R, Part D, pp. 10–​12; WTO, United States—​Standards for Reformulated and Conventional Gasoline, Appellate Body Report (29 April 1996) WT/​DS2/​AB/​R, pp. 16–​17; ECtHR, Golder v United Kingdom (appl. no. 4451/​70), Judgment (Plenary), 21 February 1975, para. 32. 57   The expression is from Postema, Legal Philosophy, p. 300.

376    sources in legal-formalist theories that judges limit themselves to the mechanical extraction of pre-​existing content of rules.58 Albeit instrumental in the preservation of authority and legitimacy of—​ judicial—​content-​determination processes and unanimously accepted by all professionals of international law, this authority-​endowing detour through the doctrine of sources—​and especially through customary international law—​in content-​determination formalism calls for some observations. Indeed, the abovementioned use of the doctrine of sources to formalize constraints on interpretation of international law is far from being self-​evident59—​even if it is now uncritically embedded in the consciousness of international lawyers.60 What is more, elevating hermeneutic theories of interpretation into rules of international law requires that one takes some liberty with the traditional doctrine of customary law. Of course, such departures are not new.61 Yet, if the doctrine of customary international law is applied in an orthodox way, it is not at all certain that the constraints on interpretation of international law meet the traditional requirements. First, it seems that the practice is mostly that of authoritative judicial bodies, in their own right. It is true that some of them constitute organs of international organizations. Yet, it is not clear that such a practice qualifies as practice attributable to subjects of international law for the sake of the formation customary law. Secondly, it is not obvious that the ‘anthropomorphic’ requirement of opinio juris can ever be extracted from the attitude of those international courts and tribunals that have been applying—​albeit religiously—​the rules on interpretation.62 Thirdly, it is not certain that those rules on interpretation could ever pass the elementary Continental Shelf test whereby any potential standard is required to be of a ‘fundamentally norm-​creating character such as could be regarded as forming the basis of a general rule of law’ to ever generate customary law.63 It does not seem controversial to say that the rules on interpretation do not

58   See generally Gleider I. Hernández, The International Court of Justice and the Judicial Function (Oxford: Oxford University Press, 2014). 59  On the doubts expressed by some of the drafters of the Vienna Convention on the Law of Treaties, see Jan Klabbers, ‘Virtuous Interpretation’, in Malgosia Fitzmaurice, Olufemi Elias, and Panos Merkouris, eds, Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years On (Leiden: Martinus Nijhoff, 2010), 17–​38, 18. 60  It is part of what I  have called elsewhere the international belief system. See d’Aspremont, International Law as a Belief System. 61   See Jean d’Aspremont, ‘Customary International Law as a Dance Floor’, Part I, EJIL: Talk! (Blog of the European Journal of International Law), 14 April 2014, ; and Part II, 15 April 2014, , accessed 10 May 2016. 62   On the anthropomorphic dimension of opinio juris and its kinship with the doctrine of fundamental rights of States, see Jean d’Aspremont, ‘The Doctrine of Fundamental Rights of States and the Functions of Anthropomorphic Thinking in International Law’, Cambridge Journal of International and Comparative Law 4 (2015): 501–​20. 63   This is an aspect of the orthodox customary law doctrine which scholars have constantly neglected. See North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (Judgment) [1969] ICJ Rep 3, 41–​2, para. 72. On this point, see Jean d’Aspremont,

jean d’aspremont   377 dictate any specific behaviour to States and international organizations. Moreover, the specific interpretive constraints they put forward remain rather loose and vague. For all these reasons, the unanimous claims about the customary status of the interpretive constraints found in the Vienna Conventions would hardly survive a careful application of the orthodox doctrine of customary law. There are more reasons for taking issue with the mainstream move to create formal bindingness for constraints on the interpretation of international law. For instance, such a mundane posture is not without irony. Indeed, mainstream scholarship and practice seem to put a disproportionate effort into elevating vague and loose interpretive constraints into firm international legal rules. In that sense, one could wonder with amusement why so much effort seems needed to formalize constraints that—​both conceptually and empirically—​hardly restrict interpretive discretion.64 Eventually, it could be objected that from a functional perspective, the necessity to resort to the doctrine of sources—​and especially the doctrine of customary law—​to secure pervasive authority could also be questioned. As common law systems have taught us, interpretive self-​restraint and interpretive discipline by judges do not always require formal bindingness, at least not the type of bindingness that is conferred by the sources.65 In the light of the above, it is contended here that the first role bestowed upon sources in the formalization of content-​determination interpretive processes—​and thus the mundane argument that the formal constraints on content-​determination interpretive processes constitute customary rules, despite being firmly embedded in the consciousness of all international lawyers—​looks rather idiosyncratic, if not self-​defeating. Yet, this chapter is not the place to further discuss this specific role of sources in the formalization of content-​determination interpretive processes. Instead, mention must be made of a second and distinct formalizing role that has been conferred upon the sources of international law with respect to content-​ determination interpretive processes. In fact, irrespective of their customary status, the interpretive constraints found in the Vienna Conventions on the Law of Treaties simultaneously necessitate a resort to the doctrine of sources for their own ascertainment. This second role is not only found in the general ‘framing’ effect of the doctrine of sources on interpretation that is discussed by Duncan Hollis in this ‘Softness in International Law:  A  Self-​Serving Quest for New Legal Materials’, European Journal of International Law 19 (2008): 1075–​93.   There seems to be a wide agreement that meaning is constructed and not extracted through interpretation and that interpretation should be seen as evaluative and normative rather than empirical. See Letsas, ‘Strasbourg’s Interpretive Ethic’, p. 535. 65   This is so even if the legislator has increasingly ventured to regulate statutory interpretation by statute. In the United Kingdom, see Section 3 of the 1998 Human Rights Act or Section 2 (4) of the 1972 European Communities Act. On statutory interpretation in the United Kingdom, see generally Francis A. R. Bennion, Statutory Interpretation: A Code (London: Butterworths, 2005) or Rupert Cross, Statutory Interpretation, eds John Bell and Georg Engle, 3rd edn (London: Butterworths, 1995). 64

378    sources in legal-formalist theories volume.66 It also ties in with the fact that the interpretive yardsticks set forth by the doctrine of interpretation must themselves be identified by virtue of the doctrine of sources. For instance, the interpretive constraints set forth by Article 31 (3) (c)—​i.e. the so-​called principle of systemic integration—​require that a rule be interpreted, taking into account its normative environment.67 This normative environment (i.e. ‘any relevant rules of international law applicable in the relations between the parties’) of the rule must be captured before it is taken into account in the interpretation of that rule. The only way to authoritatively delineate the normative environment of the rule is to resort to the doctrine of sources. Put differently, Article 31 (3) (c) seems to require that the interpreter verify the membership of those peripheral rules to the international legal system by virtue of the doctrine of sources. Such an indirect role of the doctrine of sources also holds for the application of Article 31 (2),68 and Article 31 (3) (a),69 of the Vienna Conventions.70 It is submitted that, here too, the doctrine of sources does not deliver on the hopes vested therein in terms of formalization, for those interpretive yardsticks ascertained by virtue of the doctrine of sources remain extremely loose and indeterminate.71 The foregoing has tried to shed light on the two ways in which the doctrine of the sources of international law contributes to the formalization of content-​ determination interpretive processes. It has been argued that, in both roles, the doctrine of sources performs rather poorly as a vehicle of legal forms in content-​ determination interpretive processes. Attention must now turn to the role of the sources of international law in the other type of formalism discussed in this chapter, namely law-​ascertainment formalism with a view to gauging whether the sources

  See ­chapter 20 by Duncan B. Hollis in this volume.   ‘There shall be taken into account, together with the context . . . (c) Any relevant rules of international law applicable in the relations between the parties.’ See generally Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge: Cambridge University Press, 2003), pp. 244 ff.; Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention’, International and Comparative Law Quarterly 54 (2005): 279–​320; Panos Merkouris, ‘Debating the Ouroboros of International Law: The Drafting History of Article 31 (3) (c)’, International Community Law Review 9 (2007): 1–​31. 68   ‘The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.’ 69   ‘There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’. 70   See also ­chapter 20 by Duncan B. Hollis in this volume. 71   On the malleability of the principle of systemic integration of Art 31 (3) (c), see Jean d’Aspremont, ‘The Systemic Integration of International Law by Domestic Courts: Domestic Judges as Architects of the Consistency of the International Legal Order’, in Ole K. Fauchald and André Nollkaemper, eds, The Practice of International and National Courts and the (De-​) Fragmentation of International Law (Oxford: Hart, 2012), 141–​66. 66 67

jean d’aspremont   379 prove more conducive to formalism when it comes to the ascertainment of international legal rules.

2. Sources and Law-​Ascertainment Formalism A very different role is bestowed upon the doctrine of sources in the formalization of law-​ascertainment interpretive processes. Rather than contributing to making constraints upon formal rules and determining the interpretive yardsticks these rules put in place, the doctrine of sources contributes to the formalization of lawascertainment by being itself the receptacle of the constraints on law-​ascertainment interpretive processes. In other words, the legal forms that are meant to guide and constrain law-ascertainment are found in the sources themselves. In that sense, there is a strict identity between sources and law-​ascertainment formalism. It is argued here that this common identity between law-​ascertainment formalism is, to a large extent, fallacious and misleading.72 Indeed, the doctrine of customary international law and the law-​ascertainment criteria concerning international treaties, unilateral promises, and other international legal acts are ultimately entirely dependent upon highly informal criteria, thereby showing that sources perform very poorly as a vehicle of formalism in law-​ascertainment interpretive processes. The following paragraphs aim to illustrate this point. In the specific case of customary international law, it seems difficult to deny that the ascertainment of customary international law within mainstream scholarship has always rested on informal criteria. Indeed, according to traditional views, customary international rules are identified by a bottom-​up crystallization process that rests on a consistent acquiescence by a significant number of States,73 accompanied by the belief that such a process corresponds to an obligation under international law.74 Yet, it has not been possible to formalize that process’s ascertainment. Neither the behaviour of States nor their beliefs can be captured or identified by formal criteria.75 As a result, ascertainment of customary   This is been explained in detail elsewhere. See d’Aspremont, Formalism.   For a classical example, see Nguyen Quoc Dinh, Patrick Daillier, and Alain Pellet, eds, Droit international Public, 6th edn (Paris: LGDJ, 1999), p. 318. On the various conceptualizations of customary international law as a process, see the remarks of Robert Kolb, ‘Selected Problems in the Theory of Customary International Law’, Netherlands International Law Review 50 (2003): 119–​50. For a recent state-​of-​the-​art study of customary international law, see Hugh Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), pp. 53–​92. 74   On the emergence of the subjective element in the theory of custom in the nineteenth century, see Paul Guggenheim, Contribution à l’histoire des sources du droit des gens, vol. 94, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1958), 1–​81, 36–​59. 75  In the same vein, Martti Koskenniemi, From Apology to Utopia:  The Structure of International Argument (Helsinki: Finnish Lawyers’ Pub. Co., 1989), p. 388. On the particular difficulty in establishing practice of abstention, see PCIJ, The Case of the S.S. “Lotus” (France v Turkey) (Judgment) PCIJ Rep Series A 72 73

380    sources in legal-formalist theories international law does not hinge on any standardized and formal pedigree. Like other process-​ based models of law-identification, custom-identification eschews formal criteria and follows a fundamentally informal pattern of identification.76 This is why custom identification has often been deemed an ‘art’,77 and why some authors have been loath to qualify customary law as a proper ‘source’ of international law.78 Nonetheless, ambitious attempts to endow custom-ascertainment with formal trappings have resulted in spectacular scholarly efforts to elaborate and streamline the above-​mentioned subjective and objective elements of custom.79 A fair number of these scholarly attempts have asserted that custom is a formal source of law whose rules are identified on the basis of formal criteria.80 It is argued here that the extreme refinement of these two custom-​ascertainment criteria, while it may have given some systemic feature to the doctrine,81 is insufficient to ensure formal custom-identification,82 and has not transformed custom ascertainment into a formal process.83 What is more, in practice, these elements have been deployed and applied in an extremely liberal manner, notably by conflating No. 10 (1927), p. 28, or Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, 99–​100, para. 188. 76   Maurice H. Mendelson, ‘The Formation of Customary International Law’, vol. 272, Collected Courses of the Hague Academy of International Law (Leiden:  Brill/​Nijhoff, 1998), 1–​400, 159, 172; Gionnata P. Buzzini, ‘La théorie des sources face au droit international général’, Revue générale de droit international public 106 (2002): 581; Robert Kolb, Réflexions de philosophie du droit international. Problèmes fondamentaux du droit international public:  Théorie et Philosophie du droit international (Bruxelles: Bruylant, 2003), p. 51. 77   Mark W. Janis, An Introduction to International Law, 2nd edn (Boston: Little, Brown, 1993), p. 44. 78   See the discussion in Thirlway, International Customary Law and Codification, pp. 25–​30. 79   James Crawford understands the emergence of customary rules as a dialogue between international actors over time that includes proto-​legal and legal steps. See James Crawford, Chance, Order, Change: The Course of International Law, vol. 365, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2013), 9–​369, 82–​4. 80   On the idea that customary international law is a formal source of law, see Eric Suy, Les actes juridiques unilatéraux en droit international public (Paris:  Librairie générale de droit et de jurisprudence, 1962), p.  5; see Gennady M. Danilenko, Law-​Making in the International Community (Dordrecht: Martinus Nijhoff, 1993), p. 30. It is interesting to note that Patrick Daillier, Mathias Forteau, and Alain Pellet, for their part, argue that customary international law is a formal source of law because it originates in a law-​creating process which is governed by international law. Patrick Daillier, Matthias Forteau, Nguyen Quoc Dinh, and Alain Pellet, eds, Droit international public, 8th edn (Paris: LGDJ, 2009), pp. 353 and 355. 81  Crawford, Chance, Order, Change, p. 84. 82   One of the most famous objections to this formal conception of customary international law has been offered by Roberto Ago who has construed custom as ‘spontaneous law’. See Roberto Ago, Science juridique et droit international, vol. 90, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1956), 851–​954, 936–​41. 83   In the same vein, Pierre-​Marie Dupuy, ‘Théorie des sources et coutume en droit international contemporain’, in Manuel Rama-​Motaldo, ed., Le Droit international dans un monde en mutation: liber amicorum en hommage au Professeur Eduardo Jimenez de Arechaga, vol. 1 (Montevideo: Fundación de Cultura Universitaria, 1994), 51–​68, 61–​3. See Richard Y. Jennings, ‘The Identification of International Law’, in Bin Cheng, ed., International Law: Teaching and Practice (London: Stevens, 1982), 3–​9, 9.

jean d’aspremont   381 the constitutive and the declarative dimensions of each of them, thereby allowing international lawyers to enjoy an unprecedented argumentative leeway in connection with customary international law.84 The finding that the doctrine of sources constitutes a poor vehicle of legal forms also holds for the ascertainment of written treaties. Indeed, although the acceptance of written treaties is based on a formal instrument, the identification of ‘treaty status’ ultimately remains dependent on an informal criterion in the mainstream doctrine of the sources of international law.85 Written treaties’ ascertainment is exclusively dependent upon the intent of the authors of these acts. Although the Vienna Convention is silent as to the decisive treaty-​ascertainment criterion,86 the International Law Commission made clear that the legal nature of an act hinges on the intent of the parties,87 an opinion that is shared by most international legal scholars.88 The same is true with respect to unilateral written declarations considered to enshrine an international legal rule where the author’s intent to be bound can be evidenced.89 This means that, although law-ascertainment remains, on the surface, formal because it hinges on the existence of a written instrument, the legal nature of that instrument is itself determined on the basis of an informal criterion: intent. Nothing could be more at odds with formal law-identification than the omission of a linguistic or tangible manifestation of intent as a prerequisite in intent-​based lawascertainment. Indeed, such a criterion ultimately bases the identification of international legal acts on a fickle and indiscernible psychological element. It can thus be said that the identification of a written treaty—​and other legal acts—​has remained 84   For some observations on this phenomenon, see d’Aspremont, ‘Customary International Law as a Dance Floor’: Part I and Part II; see also William Worster, ‘The Inductive and Deductive Methods in Customary International Law Analysis: Traditional and Modern Approaches’, Georgetown Journal of International Law 45 (2014): 445–​521; see also Stefan Talmon, ‘Determining Customary International Law:  The ICJ’s Methodology between Induction, Deduction and Assertion’, European Journal of International Law 26 (2015): 417–​43. 85  On the regime governing international treaties, see the Vienna Conventions on the Law of Treaties of 1969 and 1986 and the commentary of Klein and Corten, eds, Les Conventions de Vienne sur le Droit des Traités. 86   Fitzmaurice had explicitly made a distinction between the law-​ascertainment criterion and the consequence of an agreement being ascertained as a treaty. See ILC, Report on the Law of Treaties by G. G. Fitzmaurice, Special Rapporteur, 14 March 1956, UN Doc. A/​CN.4/​101, p. 107. 87   ILC, Report on the Work of its Eighteenth Session (4 May–​19 July 1966), UN Doc. A/​CN.4/​191, p. 189, para. 6.; see, however, Fitzmaurice, who sought to make it an explicit criterion: ILC, Report on the Law of Treaties by G. G. Fitzmaurice, Special Rapporteur, 14 March 1956, UN Doc A/​CN.4/​101, p. 107. 88   Among others, see Anthony Aust, Modern Treaty Law and Practice, 2nd edn (Cambridge: Cambridge University Press, 2007), p. 20; Richard Y. Jennings and Arthur Watts, eds, Oppenheim’s International Law, vol. I (London: Longman, 1992), p. 1202; Jan Klabbers, The Concept of Treaty in International Law (The Hague:  Kluwer Law International, 1996), p.  68; Malgosia Fitzmaurice, ‘The Identification and Character of Treaties and Treaty Obligations between States in International Law’, British Yearbook of International Law 73 (2003): 141–​85, 145 and 165–​6; Jean-​Paul Jacqué, Elements pour une théorie de l’acte juridique en droit international public (Paris: Librairie générale de droit et de jurisprudence, 1972), p. 121. 89   Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253, 267, para. 43.

382    sources in legal-formalist theories a deeply speculative operation aimed at reconstructing the author(s)’ intent short of any formal criterion. It is in the light of the above that it is argued here that the mainstream approach to the identification of customary international law and treaties reveals that the sources of international law constitute a poor vehicle of formalism in law-​ascertainment interpretive processes. In their dominant understanding, the sources of international law fall short of formalizing law-ascertainment. Just like in content-​determination formalism, law-​ascertainment formalism remains rather empty. And yet, formalism, as an ideal, remains ironically ubiquitous in international legal thought and practice, international lawyers perpetuating attempts to reinvent legal forms.

IV.  Concluding Remarks This chapter started by pointing out that international lawyers are all formalists. It was submitted that even when they declare themselves anti-​formalists and averse to the role of legal forms in generating authority and bindingness, they find themselves engaged in a reinvention of formalism. In their engagement with formalism, the sources—​including revamped versions thereof—​often constitute the very construction through which legal forms are channeled into both content-​determination and law-ascertainment. The discussion conducted in this chapter, however has shown that the sources fail to uphold a significant role for legal forms in these two interpretive processes. The formalization of content-​determination and law-​ascertainment interpretive processes through the doctrine of sources remains a mirage. If anything, the lesson drawn from this discussion is that international lawyers should cease to think of the sources of international law as conducive to the formalization of international legal argumentation.

Research Questions • What are the various ways in which international lawyers have been engaging with the role of legal forms? • How do the sources of international law contribute to the formalization of international legal argumentation?

jean d’aspremont   383

Selected Bibliography Aspremont, Jean d’, Formalism and the Sources of International Law. A  Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). Aspremont, Jean d’, ‘The Politics of Deformalization in International Law’, Göttingen Journal of International Law 3 (2011): 503–​50. Aspremont, Jean d’, ‘The Idea of “Rules” in the Sources of International Law’, British Yearbook of International Law 84 (2014): 103–​30. Kammerhofer, Jörg, Uncertainty in International Law: A Kelsenian Perspective (Abingdon: Routledge, 2011). Kammerhofer, Jörg, and Jean d’Aspremont, eds, International Legal Positivism in a Post-​ Modern World (Cambridge: Cambridge University Press, 2014). Kennedy, Duncan, ‘Legal Formalism’, Encyclopedia of the Social & Behavioral Sciences 13 (2001): 8634–​8. Koskenniemi, Martti, ‘What is International Law For?’, in Malcolm D. Evans, ed., International Law, 2nd edn (Oxford: Oxford University Press, 2006), 57–​76. Schauer, Frederick, ‘Formalism’, Yale Law Journal 97 (1988): 509–​48. Schauer, Frederick, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge: Harvard University Press, 2009).

Chapter 18

SOURCES IN LEGAL-​F ORMALIST THEORIES A FORMALIST ACCOUNT OF THE ROLE OF SOURCES IN INTERNATIONAL LAW

Frederick Schauer

I. Introduction The idea of formality, often referred to as formalism, is a prominent feature of numerous disciplines. In literary theory (or literary interpretation), formalism is the approach that takes the words of the text as the starting (and perhaps ending) point of the interpretive enterprise.1 Literary formalism is thus committed to being 1   On formalism in literary theory, and on its companion (or successor) New Criticism, see e.g., Cleanth Brooks, The Well Wrought Urn: Studies in the Structure of Poetry (New York: Harvest/​Harcourt, Inc., 1947); Ivor A. Richards, Practical Criticism (London: Kegan Paul, Trench, Trubner & Co., Ltd., 1930); René Wellek and Austin Warren, Theory of Literature, 3rd rev. edn (San Diego: Harcourt Brace Jovanich, 1977).

frederick schauer   385 unconcerned with an author’s motives, or intentions, and similarly unconcerned with the peculiarities of how individual readers situated in particular cultures might be inspired or provoked by those words. So too in aesthetics, where again to engage in a formal approach to interpretation or artistic meaning is to examine the images or the structure of a work of art according to certain (admittedly contested) conventions, but again without regard to an artist’s intentions in creating the work.2 In both literature and in art, therefore, the formal meaning of a work or interpretation of it may well differ from what the creator of the work intended, just as the meaning of the language we use in ordinary conversation and communication may occasionally or often differ from what we actually intended to say or from how some particular hearer might understand that language.3 Whether this kind of formalism is appropriate, desirable, or even coherent is vigorously contested by those who engage in literary or artistic interpretation, and just as much (or more) by those who theorize about such interpretation. But those disputes are best left for other days, or, better, for other people. What is relevant in the immediate context of law generally, or international law more specifically, is simply the idea that to be formal about meaning or interpretation is to take the surface indications as predominant or dispositive, even as against other interpretations that might be more faithful to an author’s or artist’s intention, or more compatible with current cultural understandings, or that might produce an interpretation that is more pleasing or more useful or more morally desirable. Formalism has its analogue in law and legal theory. Although the adjective ‘formalist’ or ‘formalistic’ is (too) often simply an undefined or under-​defined epithet deployed to refer to an interpretation, approach, or outcome of which the user of the word disapproves,4 in its non-​epithetical guise the characterization of a legal approach or legal outcome as formalist refers to the practice of taking the language of a written (or otherwise pre-​existing) legal rule or the language in a judicial opinion as, again, dispositive or predominant, even as other considerations—​from morality, justice, efficiency, pragmatics, or the intentions of the rule-​writer, for example—​ might incline in favour of a different outcome. As with formalism in literary or artistic interpretation, formalism in law takes external or surface manifestations—​the text—​as predominant, and does so even when those external or surface manifestations might produce, under some metric, suboptimal conclusions. With this basic idea in hand, the goal of this entry is, first, to explain in some more detail the idea of legal formalism, and then to apply that idea more specifically to questions about legal sources, and then to focus on the question of legal sources 2   See e.g., Clive Bell, Art (London: Chatto & Windus, 1914); Monroe Beardsley, The Aesthetic Point of View (Ithaca, NY: Cornell University Press, 1982); Roger Fry, Vision and Design (New York: World Publishing, 1920); Clement Greenberg, The Collected Essays and Criticism (Chicago: The University of Chicago Press, 1986). 3   See Stanley Cavell, Must We Mean What We Say? (Cambridge: Cambridge University Press, 1976), pp. 30–​2; Peter Jones, Philosophy and the Novel (Oxford: Clarendon Press, 1975), pp. 182–​99. 4   As I observe in Frederick Schauer, ‘Formalism’, Yale Law Journal 97 (1988): 509–​48.

386    sources in legal-formalist theories in international law. I  will happily avoid—​at least for now—​the hoary question whether international law is or is not law in some stronger sense of law. But I will suggest that at least some sense of source formality is an important component of distinguishing the very idea of law, whether municipal (domestic) or international, from the most common forms of non-​legal decision-​making.

II.  Legal Formalism Explained When not being employed as a rarely defined epithet, the term ‘formalism’ can be understood in two ways. Formalism in one sense is largely indefensible, but formalism in another may be not only more defensible, but also lie at the core of the nature of law as we experience it. It should come as little surprise that legal decision-​makers often claim to be more constrained by written positive law than they actually are.5 Perhaps because of the cultural resonance of the idea of the rule of law, and its distinction between rule by law and rule by people, decision-​makers who are purporting to be operating in legal mode—​judges, most obviously, but often other officials—​have long had a tendency to downplay the personal element in legal decision-​making. Such decision-​makers typically claim instead that their decisions are dictated by the law, their own personal views or philosophies notwithstanding. And this tendency to attribute a decision to pre-​existing legal mandates and not to a decision-​maker’s own preferences may be especially pronounced for judges. Because most judges in most democracies are appointed and not elected, and because that status raises obvious questions about the democratic legitimacy of judicial decision-​making, there is again a strong proclivity for judges and their defenders to deny the extent to which the individual views of individual unelected judges have been the influential or, even worse, dispositive components of their judgments. Consequent to these and other factors leading legal decision-​makers to de-​ emphasize the personal factors in their decisions, we often see those decision-​ makers attempting to deny the range of choices they in fact have, and the extent to which their decisions are products of such choices. Even when making decisions under vague standards such as ‘reasonable’ or ‘necessary’, or when interpreting language such as ‘due process’ or ‘equality’ or ‘justified in a free and democratic society’,6 5   This is one of the basic themes of US legal realism. On this point, see especially Jerome Frank, Law and the Modern Mind (New York: Brentano’s, 1930). See also Frederick Schauer, ‘Legal Realism Untamed’, Texas Law Review 91 (2013): 749–​80. 6   The phrase is from Section 1 of the Canadian Charter of Rights and Freedoms (1981).

frederick schauer   387 judges and commentators will often deny that there is any or very much choice involved, and will insist, to the contrary, that their preferred interpretation is in fact the only possible outcome given the authoritative language. Indeed, these days the phenomenon may be especially prominent worldwide in those regimes empowering judges to make constitutional decisions under the rubric of ‘proportionality’. Proportionality may well be a desirable approach to constitutional decision-​making and judicial power, and a proportionality determination may be more constrained than some of proportionality’s more vehement critics claim,7 but deciding which rights restrictions are proportional and which are not nevertheless involves some degree of choice, a choice that decision-​makers and supporters of proportionality review seem often at pains to deny. At times this denial of the degree of choice that in fact exists is condemned with the word ‘formalistic,’ or some variant thereof, and in such cases, it does appear that the epithetical use of the term is indeed justified. Formalism as the denial of choice might perhaps be defended under some (extreme) circumstances, but insofar as we expect our decision-​makers to be honest and transparent,8 the denial of choice is something to be lamented. H. L. A. Hart captured the idea well, in describing formalism (or conceptualism) as a ‘vice’, and to him the vice ‘consists in an attitude to verbally formulated rules which both seeks to disguise and to minimize the need for . . . choice, once the general rule has been laid down’.9 There is another sense of formalism, however, and in this second sense formalism is no longer necessarily to be condemned. Although it may be undesirable for judges and other legal decision-​makers to deny the degree of choice they in fact have, there are times when the language of the governing legal item—​constitutional provision, statute, regulation, or authoritative judicial opinion—​genuinely does appear to limit the degree of choice open to the decision-​maker. When the applicable language is quite precise, that precise language will, in the ordinary situation, make some outcomes mandatory and others seemingly impermissible. For example, Section 35 (1) (d) of the Constitution of South Africa provides that a person 7  Sometimes this criticism is of proportionality review itself, and sometimes of the closely related idea of balancing. For a valuable review of the debates, see Matthias Jestaedt, ‘The Doctrine of Balancing—​Its Strengths and Weaknesses’, in Matthias Klatt, ed., Institutionalized Reason:  The Jurisprudence of Robert Alexy (Oxford: Oxford University Press, 2012), 152–​72. And see also, in the same volume, Frederick Schauer, ‘Balancing, Subsumption, and the Constraining Role of Legal Text’, 307–​18. See also, and more comprehensively, Jacco Bomhoff, Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse (Cambridge:  Cambridge University Press, 2013); Katharine G. Young, Constituting Economic and Social Rights (Oxford: Oxford University Press, 2012). 8   See David L. Shapiro, ‘In Defense of Judicial Candor’, Harvard Law Review 100 (1987):  731–​50. Others, however, are more sceptical about the unqualified virtues of judicial candour. See e.g., Scott Altman, ‘Beyond Candor’, Michigan Law Review 89 (1990): 296–​351; Scott C. Idleman, ‘A Prudential Theory of Judicial Candor’, Texas Law Review 73 (1995):  1307–​1417. And see also David A. Strauss, ‘Originalism, Precedent, and Candor’, Constitutional Commentary 22 (2005): 299–​309. 9   H. L. A. Hart, The Concept of Law, 3rd edn, Penelope A. Bulloch, Joseph Raz, and Leslie Green eds (Oxford: Oxford University Press, 2012), p. 129.

388    sources in legal-formalist theories arrested has the right ‘to be brought before a court as soon as possible, but not later than: 48 hours after the arrest; or the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day’.10 And although there are interesting and important issues, to which we shall return, about the circumstances under which a decision-​ maker might be permitted to depart from such explicit and explicitly constraining language, we can still say that an arrested person’s rights under Section 35 have been denied if he is detained for more than forty-​eight hours unless one of the stated exceptions applies. And thus, a legal system or a legal approach can be considered formal or formalist insofar as the exact words are both, as here, explicitly constraining, and are taken to be conclusive. While there might well be a good reason for detaining a person beyond the forty-​eight hours (again, even apart from the applicability of the stated exceptions), a system is formalistic when those good reasons are excluded by the explicit words of a formal legal item.11 The previous point can be generalized. There are times when the outcome indicated by the law will differ from the outcome indicated by the full range of reasons or factors other than the law. Joseph Raz calls this latter idea ‘the balance of reasons’,12 and I prefer to think of it in terms of the all-​things-​other-​than-​the-​law-​considered outcome.13 And perhaps the best characterization comes from that noted legal philosopher Spike Lee, whose description of more or less the same idea is the simple ‘Do the Right Thing’. But regardless of the characterization, the basic point is that a rule-​indicated (or law-​indicated) outcome might differ from the best all-​things-​ other-​then-​the-​rule-​considered outcome, and formalism can be understood as the approach that in such cases prefers the rule-​or law-​generated outcome to the otherwise best outcome.   Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), Section 35 (1) (d).   Joseph Raz’s idea of rules as exclusionary reasons is relevant here. See Joseph Raz, Practical Reason and Norms (Princeton: Princeton University Press, 1990) (1975); Joseph Raz, The Authority of Law, 2nd edn (Oxford: Oxford University Press, 2009); Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986). 12  Raz, Practical Reason and Norms, p. 38. 13   See Frederick Schauer, The Force of Law (Cambridge: Harvard University Press, 2015), pp. 48–​67. As expressed in the text, the idea is oversimplified. Legal rules often have stabilizing and guiding and coordinating functions, and their violation may have slippery-​slope or other downstream consequences. The sophisticated legal particularist, just like the sophisticated act-​consequentialist (see, e.g., Donald H. Regan, Utilitarianism and Cooperation (Oxford:  Clarendon Press, 1980); J. J.  C. Smart, ‘Extreme and Restricted Utilitarianism’, Philosophical Quarterly 6 (1956): 344–​54), would take such values and consequences into account, but would nevertheless take them into account on a case-​by-​case basis. As a result, the possibility remains open that the outcome indicated by following a legal rule will differ from the outcome indicated by the balance of all other considerations, including the consideration of the value of having a rule and the disvalue of violating it. For a debate about this very point, compare Frederick Schauer, Playing by the Rules: A Philosophical Analysis of Rule-​Based Decision-​Making in Law and in Life (Oxford: Clarendon Press, 1991), with Gerald J. Postema, ‘Positivism, I Presume?’, Harvard Journal of Law and Public Policy 14 (1991):  797–​822, with Frederick Schauer, ‘The Rules of Jurisprudence’, Harvard Journal of Law and Public Policy 14 (1991): 839–​52. 10 11

frederick schauer   389 When so understood, formalism might still be considered a vice, but here the arguments to the contrary have much more to be said for them. This may not be the appropriate place to explore fully those arguments, but it should be apparent that there are at least plausible arguments from stability, from predictability, from separation of powers in a broad and non-​technical sense, and from constraint on discretion, among others, each or all of which would argue that there might be domains in which some class of decision-​makers—​judges, for example—​might be precluded from reaching what they believe to be, even if sometimes or often correctly, the optimal outcome.14 To be formalist is thus to adopt or approve a posture of decision-​making in which the indications of a precise (or at least somewhat constraining) and pre-​existing legal rule are taken as (presumptively or absolutely) dispositive, even when avoiding those indications would produce a better outcome for the decision at hand.

III.  The Formalism of Sources With this latter and more defensible understanding of formalism in hand, we can then distinguish among three varieties of this kind of formalism. As will be apparent, they are all related, but the distinction may nevertheless be instructive. First, and perhaps most common, is what we can label outcome-​determinative formalism. The basic idea, tracking the discussion in section II: Legal Formalism Explained, is that, however we understand law, it will be different from what we might understand as the morally, politically, and pragmatically (among others) optimal result. This difference might be a function of sources, about which more will be said presently, and it might be a function of methods of reasoning with those sources, about which more will, again, be said presently, but even more simply and directly, it may be some combination of all of the things that together, we can call the ‘law’.15 14   Such reasons are explored and defended in Schauer, Playing by the Rules, and in Larry Alexander and Emily Sherwin, The Rule of Rules:  Morality, Rules, and the Dilemmas of Law (Durham:  Duke University Press, 2001). 15   Implicit in the foregoing is some notion of positive law (Aquinas called it human law, as distinguished from natural law) that is non-​congruent with the simple idea of the morally, politically, and pragmatically (among others) best outcome. I avoid the term ‘positivism’, partly because the term is contested, partly because it may have so many uses as to have lost almost all of its referential utility, and partly because one of the contemporary conceptions of positivism, the one going by the names of ‘incorporationism’ or ‘inclusive legal positivism’, would allow all-​things-​considered decision-​making to count as law as long as the decision to so count was a contingent social decision, rather than being something that was a function of law in all possible legal systems in all possible worlds. And thus

390    sources in legal-formalist theories So if the law straightforwardly produces what appears to be an immoral, unjust, impolitic, or inefficient outcome, the formalist judge (or commentator) would accept the immoral or otherwise suboptimal result, believing that indications of formal or positive law are dispositive, and leaving all-​things-​considered optimization for other official actors. By contrast, the non-​formalist judge, commentator, or lawyer would under such circumstances view the law as defeasible in the service of larger moral, political, or pragmatic goals. It is worth noting that this conception of formalism is compatible with legal sources being unwritten as well as written. Although it is plainly easier to envisage formalism in the context of canonical language whose accepted meaning is moderately precise, and thus which might easily be understood as diverging from the best all-​things-​ considered outcome, such precise linguistic constraint is not a necessary condition of a formal approach. Even if ‘the law’ is common law or some other variety of unwritten law, including the varieties of unwritten law constituting part of international law, all we need for outcome-​determinative formalism is the idea that ‘the law’, whatever it is and wherever it comes from, produces an outcome. And if the outcome indicated by the law diverges from the outcome that would be indicated by a law-​independent all-​things-​except-​the-​law-​considered analysis, then formalism is to be understood as the approach that will nevertheless prefer the law-​indicated outcome to the all-​things-​ considered outcome. In his contribution to this volume,16 Jean d’Aspremont avoids any discussion of outcome-​determinative formalism, but he does valuably distinguish and analyse two other forms of formalism, both of which might be understood as components of outcome-​ determinative formalism. One of these is what he calls contentdetermination, and which I might prefer to designate as law-​interpretation formalism. As is well known, there are various interpretive tools that a decision-​maker might bring to bear in moving from the body of abstract law to a specific decision on a specific occasion. To identify just a small number of those, we might interpret the law according to the intentions—​the mental states—​of the law-​writer or law-​ giver, whoever or whatever that law-​writer or law-​giver might be.17 Or we might

the conception of law, or positive law, that I  employ here is perhaps closest to what Ruth Gavison (‘Comment’, in Ruth Gavison, ed., Issues in Contemporary Legal Philosophy:  The Influence of H.  L. A. Hart (Oxford: Clarendon Press, 1987), 21–​34, 30–​31) has called ‘first-​stage law’, a term she uses precisely to refer to what most people and most lawyers would think of as the law, without getting into complicated questions about whether things other than first-​stage law might also count as law in a broader sense, or even whether things other than first-​stage law might render some items of first-​stage law as ‘non-​law’ in this broader sense.   See ­chapter 17 by Jean d’Aspremont in this volume.   See Reed Dickerson, The Interpretation and Application of Statutes (Boston:  Little, Brown, 1975), p. 75; Jeffrey Goldsworthy, ‘Marmor on Meaning, Interpretation, and Legislative Intention’, Legal Theory 1 (1995):  439–​64; Caleb Nelson, ‘What is Textualism?’, Virginia Law Review 91 (2005): 347–​4 18. 16 17

frederick schauer   391 interpret the law according to the literal or plain (ordinary or technical) meaning of the words on the printed page.18 Or the goal of interpretation, following Ronald Dworkin and others, might be to make a particular decision most coherent with the full corpus of the law, or, again following Dworkin, to make the law the best it can be.19 And of course there are many others.20 But however large or small the set of interpretive options may be, to be formal with respect to interpretive methods is to be committed to the available interpretive methods being a closed and not an open set. Whatever at some point are considered within a system to be the permissible interpretive approaches, a formalist understanding would reject ad hoc expansion of the set of permissible approaches, whether to achieve a better result in a specific case or instance of law application, or whether because it seemed to some interpreter that other methods might be preferable in the longer run. D’Aspremont distinguishes what he calls content-​determination formalism and I call law-​interpretation formalism, on the one hand, from what he calls law-​ascertainment formalism. But because law-ascertainment is indeterminate between whether we are talking about identifying the law or whether we are discussing application of the law, I prefer to think of this as source formalism. As Hart’s idea of the rule of recognition influentially theorized,21 law as we commonly understand it is premised on there being secondary rules that allow citizens and legal actors alike to distinguish between what is law and what not, and an ultimate rule of recognition is the master rule in a legal system that identifies—​recognizes—​the limited domain of the law.22 And thus source formalism can be understood as formalism about the rule of recognition. A source-​formal legal system would be one in which the ‘list’ of sources recognized by the rule of recognition was understood to be rigid, such that it would not be open to law’s appliers, interpreters, enforcers, or even subjects to add to the list of recognized sources, even if doing so would produce preferable outcomes in a particular instance or even in some number of 18   See Kent Greenawalt, Statutory and Common Law Interpretation (New York: Oxford University Press, 2013), pp. 90–​1; Frederick Schauer, ‘The Practice and Problems of Plain Meaning’, Vanderbilt Law Review 45 (1992): 715–​41. 19   Ronald Dworkin, Law’s Empire (Cambridge:  Harvard University Press, 1986). See also Ronald Dworkin, Justice in Robes (Cambridge: Harvard University Press, 2006). 20  Some of the others are usefully surveyed in William N. Eskridge, Jr, Dynamic Statutory Interpretation (Cambridge: Harvard University Press, 1994); Greenawalt, Statutory and Common Law Interpretation. 21  Hart, The Concept of Law, pp. 94–​110. 22   In theory, as the inclusive legal positivists have reminded us (see Kenneth Einar Himma, ‘Inclusive Legal Positivism’, in Jules Coleman and Scott Shapiro, eds, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002), 125–​65), the rule of recognition need not produce a limited legal domain, because the rule of recognition could recognize as law everything that the relevant society considered available for any other decision. In practice, however, the bite of the idea of the rule of recognition comes from the fact that in all real legal systems the ultimate rule of recognition recognizes as law only a subset of the decisional inputs otherwise available in society. See Frederick Schauer, ‘The Limited Domain of the Law’, Virginia Law Review 90 (2004): 1909–​56.

392    sources in legal-formalist theories current and anticipated instances. Conversely, a non-​formal understanding of legal sources would treat the existing stock of recognized sources as open and not closed, and would allow the recognition of additional sources if doing so would allow preferable results under any of some number of conceptions of what would count as a preferable result.23 The distinction between interpretation formalism and source formalism is familiar, albeit with different terminology, in the literature on coherence reasoning in law.24 As identified in that literature, legal reasoning (and not just coherence reasoning) first identifies the appropriate field of available inputs—​Dworkin talks of this as the first stage of the multiple stages of interpretation25—​and then proceeds to engage in some form of reasoning with, and application of, those inputs. Dworkin is noteworthy in having an expansive and largely open-​ended view of the available inputs, but the same two-​step process describes the nature of legal decision-​making even if the stock of usable inputs is more limited, and even if what is done with the inputs may be something other than coherence reasoning. And thus, what I designate as source formalism (and, conversely, source non-​formalism, or anti-​formalism) is directed at the question of inputs, what I label as interpretation formalism (or non-​ formalism) is directed at the methods applied to the identified inputs, and what I designate as output formalism (or non-​formalism) is directed at the final outputs produced as a consequence of identifying the available inputs and then applying the available methods of those inputs. Although I have here employed a sharp distinction between formalism and its opposites, the sharpness of the distinction is misleading. In reality, we are talking about what is best understood as a question of degree, a dimension that is scalar rather than dichotomous. And thus, if we understand formalism as a dimension, and if we understand as well the idea of a presumption, we can understand formalism as the measure of the degree to which, for any of the types of formalism just distinguished, the positive law and its source and methodological components resists modification in the service of achieving more desirable all-​things-​considered outcomes. A  legal system is maximally formal when the law (whether sources, methods, or outputs) is treated as conclusive, no matter how compelling the moral or other reasons for avoiding the legal result. And a legal system is maximally anti-​ formal when the law is treated as little more than a preliminary guideline (or rule of thumb), defeasible whenever going outside the law would produce a superior result.   And that is why it might be plausible to consider a legal system to be in some way less legal insofar as the domain of usable sources was both large and potentially unlimited. See Frederick Schauer and Virginia J. Wise, ‘Non-​Legal Information and the Delegalization of Law’, Journal of Legal Studies 29 (2000): 495–​515. 24   See Amalia Amaya, The Tapestry of Reason: An Inquiry into the Nature of Coherence and its Role in Legal Argument (Oxford: Hart, 2015); Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977); Dworkin, Law’s Empire. 25  Dworkin, Law’s Empire, pp. 65–​8. 23

frederick schauer   393 And in between we have degrees of formalism, varying with the strength of the presumption in favour of the legally generated result.

IV.  And so to International Law It is now widely accepted that so long as we do not consider organized coercive enforcement as a necessary property of law properly so called, there is no call to dismiss international law as not really law. Whatever Jeremy Bentham,26 John Austin,27 and others may in earlier generations have believed, and despite the somewhat more complex views of Hans Kelsen,28 we now understand, largely thanks to Hart, that law exists when there is a system of primary and secondary rules, and when the system of rules (or principles, directives, or norms) is internalized29 by the relevant members of some community.30 Without coercive enforcement, international law 26   Bentham, who gave us the term ‘international law’ (to replace ‘law of nations’), was sceptical about the actual existence of international law at the time he was writing, but Bentham viewed an actually extant and effective international law as a desirable goal. See Mark Weston Janis, America and the Law of Nations 1776–​1939 (Oxford: Oxford University Press, 2010), pp. 10–​23; Nancy L. Rosenblum, Bentham’s Theory of the Modern State (Cambridge: Harvard University Press, 1978), pp. 106–​8; H. B. Jacobini, ‘Some Observations Concerning Jeremy Bentham’s Concepts of International Law’, American Journal of International Law 42 (1948): 415–​17; Mark Weston Janis, ‘Jeremy Bentham and the Fashioning of “International Law” ’, American Journal of International Law 78 (1984): 405–​18; Carolina Kenny, ‘Jeremy Bentham, Principles of International Law (1786–​1789/​1843)’, in Classics of Strategy and Diplomacy, , accessed 23 July 2016. 27  John Austin, The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble (Cambridge: Cambridge University Press, 1995), pp. 123, 171 (‘[T]‌he law obtaining between nations is not positive law: for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author. . . . [T]he law obtaining between nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they shall violate maxims generally received and respected.’). 28   Scholars continue to debate whether Kelsen’s view that international law is law (see Hans Kelsen, Pure Theory of Law, trans. Max Knight (Berkeley: University of California Press, 1967), pp. 320–​47) can be reconciled with his view that law is characterized by, inter alia, a monopoly of force. See Lars Vinx, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (Oxford: Oxford University Press, 2007), pp. 194–​200. 29   Whose internalization is necessary—​e.g., the people, officials, or the army—​remains a disputed question within legal theory, but that question is not germane here. 30   Hart himself wondered in 1961 whether international law was sufficiently imbued with secondary rules to qualify as a legal system (Hart, The Concept of Law, pp. 213–​37), but it has been persuasively argued that the alleged deficiencies that Hart noted then have been more than remedied in subsequent decades. See Andreas L. Paulus, ‘The International Legal System as a Constitution’, in Jeffrey L. Dunoff and Joel P. Trachtman, eds, Ruling the World? Constitutionalism, International Law, and Global Governance (New York: Cambridge University Press, 2009), 69–​109, 75.

394    sources in legal-formalist theories may in some or many aspects be ineffective,31 but its effectiveness is to be distinguished from the conditions of its existence, and the question whether international law is ‘really’ law is a question now, happily, largely one of the past. But although we can understand why international law both can be and is in fact law, the question of its degree of formality remains important. More particularly, we can ask the same questions about the sources of international law as we ask about the sources of municipal (domestic) law. So, we start with identifying, conventionally, the accepted sources of international law. These include, non-​controversially, a collection of treaties, the decisions of various international organizations, the decisions of international courts, some number of identified principles, and the idea of custom. There may well be others, but the list of types of sources, or the list of tokens of those types, is not essential for what will follow. At times, there will be somewhat more specific lists of recognized sources applicable to specific decision-​makers or adjudicators under international law. Article 38 of the Statute of the International Court of Justice (ICJ),32 for example, lists the acceptable sources of law for that Court as consisting of international conventions, international custom accepted as law, ‘general principles of law recognized by civilized nations’, and judicial decisions and authoritative secondary writings. And shortly after noting this list, Philip Bobbitt describes the sources of international law as ‘the texts of treaties, the intentions of the parties (but not the history of the ratification of the treaty), decisions by international courts, widespread practices by national authoritative deciders who believe themselves guided by the norms of international law, [and] the common judicial ethos of civilized states’.33 Whether it be a concrete and codified list such as Article 38, or an understood array of acceptable sources such as those summarized by Bobbitt, we can still say that international law, just as with domestic law under the rule of recognition account, is characterized by a collection of (currently) acceptable legal sources. The converse of this is that there is also a collection of (currently) unacceptable legal sources. It is true that some of the unacceptable sources may become acceptable as the rule of recognition changes,34 and, albeit more rarely, some of the acceptable legal sources   On the view that exclusion from various international and transnational arrangements may be a potent form of sanction, see Oona A. Hathaway and Scott J. Shapiro, ‘Outcasting: Enforcement in Domestic and International Law’, Yale Law Journal 121 (2011): 252–​349. 32   Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993). 33   Philip Bobbitt, ‘Public International Law’, in Dennis Patterson, ed., A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell Publishing, 1996), 96–​112, 107. 34   Indeed, Hart may have erred in using the word ‘rule’ when he talked of the rule of recognition. As Brian Simpson influentially observed, the rule of recognition is not very rule-​like, and thus it may be better to understand the idea in terms of a practice (in the Wittgensteinian sense) of recognition, a practice that has no canonical formulation, that develops more from the bottom up than from the top down, and that may shift in small and almost undetectable ways over time. A. W. B. Simpson, ‘The Common Law and Legal Theory’, in William Twining, ed., Legal Theory and Common Law (Oxford: Basil Blackwell, 1986), 8–​25. See also Jean d’Aspremont, ‘The Idea of ‘Rules’ in the Sources of 31

frederick schauer   395 may become unacceptable. But as we confront real rules of recognition, it is clear all actual legal systems differentiate in tighter or looser ways between the sources that are acceptable in legal argument and legal decision-​making and the sources that are unacceptable. And thus, there is nothing about the idea of a rule of recognition that is inconsistent with the idea of unwritten law, as long as we understand that there may still be—​or must still be—​a distinction between the legally acceptable unwritten sources of law and the legally unacceptable ones. Because international law—​whether written or unwritten—​like all law, thus has its categories of acceptable and unacceptable sources, the question of formalism is the question of just how rigid those categories are. Indeed, because most of the sources of international law are optional rather than mandatory, the question is somewhat asymmetric. If an optional source is likely to yield an unacceptable outcome, then in many cases it can simply be ignored, just as in domestic law, especially domestic law in common law jurisdictions, similarly unpleasant sources can usually be ignored. But if there is no source available to generate what would otherwise be an optimal or at least desirable outcome, the question is whether the list of recognized sources can be amended by a decision-​maker at the point of application to produce the all-​things-​considered desirable outcome. And thus, the same question of source formalism is presented for international law as it is for domestic law. If there is a source whose use would lead to a better result than the result generated by using only the list of already recognized sources, is it permissible—​more a sociological or at least pre-​legal question than a legal one—​to use that source, or is the decision-​maker precluded from using the source that might generate a preferable outcome? To the extent that the decision-​maker (or advocate, or commentator) is restricted in what she may use, even at the expense of a better outcome, then the system can be considered, to that extent, formal, or formalistic. But to the extent that the list of acceptable sources is itself defeasible, making additions (or, occasionally, subtractions) permissible, then the system is pro tanto non-​formal, or anti-​formal.

V.  Formalism and the Nature of Law Some years ago, the late US Supreme Court Justice Antonin Scalia observed that the criticism of a ‘textualist’ approach to statutory and constitutional interpretation as ‘formalistic’ was ‘mindless’. ‘The answer to that [criticism]’, he wrote, ‘is, of course it’s International Law’, British Yearbook of International Law 84 (2014): 103–​30; Frederick Schauer, ‘Is the Rule of Recognition a Rule?’, Transnational Legal Theory 3 (2012): 173–​9.

396    sources in legal-formalist theories formalistic! The rule of law is about form . . . Long live formalism. It is what makes a government a government of laws and not of men.’35 One might take issue with some of Justice Scalia’s application of this idea, and certainly with the language with which he expressed it, but there is more than a germ of truth in his observation. What makes law different from the simple mandate to ‘Do the Right Thing’ is precisely the fact that there is often space between the all-​things-​considered correct result and the result indicated by the law, however broadly or narrowly we wish to define ‘law’.36 The same idea applies to the sources of law. The idea of the rule of recognition, and the idea of law as a limited domain, is premised on the lack of either extensional or intensional equivalence between the sources available to an unconstrained and non-​legal decision-​maker seeking simply to make the best decision and those permissibly available to a legal decision-​maker constrained by law and purporting to make a legal decision. To have a formalist view of legal sources is thus to recognize this fact, and to be willing to accept that there may be some valuable sources of guidance and enlightenment that, however valuable and enlightening they may be, are still not part of the field of law, and still not available to the legal decision-​maker. Bentham and Austin may have been off the mark in treating international law’s lack of organized coercive power as fatal to its claim to be law, but it may be precisely this lack of organized coercive power that makes it so important to identify the other ways in which international law is nevertheless law. And because pre-​ eminent among those ways is the fact that international law is a system of rules internalized by various officials, commentators, and subjects, we are called upon to examine the difference between internalizing a system of rules and internalizing and applying the simple ‘Do the Right Thing’ mandate. But what makes rules what they are is that they are formal, that they embody the idea that there is conceptual space and often actual space between a rule-​governed outcome and the outcome that would be reached by an ideal decision-​maker unconstrained by the rule. In that sense rules, whether broad or narrow, written or unwritten, precise or vague, are themselves the embodiment of formalism, because it is what the rule says that matters, and taking what the rule says rather than what the best result would be as (presumptively) controlling is both formal and characteristic of legal decision-​making. One of the reasons that commentators on international law have been so concerned with the question of sources is precisely that there is rarely an official list of the permissible sources. But even though there is seldom an official list of permissible sources—​Article 38 of the ICJ Statute may be more of an exception than   Antonin Scalia, A Matter of Interpretation:  Federal Courts and the Law (Princeton:  Princeton University Press, 1997), p. 25. For a defence of form in law more generally, see Robert S. Summers, Form and Function in a Legal System: A General Study (Cambridge: Cambridge University Press, 2006). 36  See Larry Alexander and Frederick Schauer, ‘Law’s Limited Domain Confronts Morality’s Universal Empire’, William and Mary Law Review 48 (2007): 1579–​1603. 35

frederick schauer   397 an example of a general characteristic of international law—​in international law, much the same applies to most of domestic law as well. But even if the list is not canonically inscribed, the idea of a list—​of a distinction between acceptable and unacceptable sources of legal authority—​is implicit in the very idea of law as a limited domain of sources. And so, whether in domestic or in international law, the existence, in theory, of such a list is what makes law law. That is the idea at the core of Hart’s idea of the rule of recognition, and the idea that is also at the core of those contemporary commentators who have discussed what they designate as the ‘practical difference’ thesis.37 If law is not different in its inputs and in its outputs from non-​legal decision-​making,38 it is hard to explain its existence and its value. And when coercive enforcement is absent, less systemized, or less effective, as is often the case with international law, the other elements that would differentiate law become more important in answering the question whether international law is law. International law is law, and it is law not because of its coercive force, but because its sources (and methods) diverge from the sources and methods that would be used by a legally unconstrained decision-​maker and because its mandates and decisions similarly diverge—​in theory and often in practice—​from those that would emanate from a legally unconstrained decision-​maker. Some would designate this resistance to the sources and methods that might occasionally produce better decisions as ‘positivism’. Others might label it ‘formalism’. But perhaps it is best simply to call it ‘law’.

Research Questions • Is the catalogue of usable sources in international law decision-​making a closed or an open set? • Assuming we can understand what it is for a specific law or norm (or source) to be treated formally, what do we mean by formalism about sources in general?   See Jules Coleman, ‘Incorporationism, Conventionality, and the Practical Difference Thesis’, in Coleman, ed., Hart’s Postscript:  Essays on the Postscript to the Concept of Law (New  York:  Oxford University Press, 2001), 99–​147. 38   And thus, I  include the possibility of procedural as well as substantive inputs. Law, whether domestic or international, will often specify the procedures for adjudication or other application of, or decision-​making about, law. At times, however, it will appear that a different procedure might produce a better outcome or will be for other reasons more advantageous. A legal system is similarly formal insofar as the existing and specified procedures are inescapable, and informal or anti-​formal insofar as existing procedures may be modified in specific cases to meet the substantive or procedural demands of the instant situation. 37

398    sources in legal-formalist theories • Does (or should) the international law regime exclude from use or authoritative status some sources that might on specific occasions give better results than would be achieved by not using them?

Selected Bibliography Aspremont, Jean d’, ‘The Idea of “Rules” in the Sources of International Law’, British Yearbook of International Law 84 (2014): 103–​30. Schauer, Frederick, ‘Formalism’, Yale Law Journal 97 (1988): 509–​48. Schauer, Frederick, ‘The Limited Domain of the Law’, Virginia Law Review 90 (2004): 1909–​56.

Section  X

SOURCES IN INTERPRETATION THEORIES

Chapter 19

SOURCES IN INTERPRETATION THEORIES THE INTERNATIONAL LAW-​M AKING PROCESS

Ingo Venzke

I. Introduction In the process of making international law, what are the roles of the sources of law and of the practice of interpretation? It is for the sources of law to prescribe how legal norms come into existence. According to a bygone, orthodox position, that is the be-​all-​and-​end-​all of the process of law-​making. Following this position, the practice of interpretation releases or reveals the meaning that lies within the legal norm that has emerged through the sources of law. The practice of interpretation does not contribute to the law-​making process. It takes the meaning from the norms. It is generally recognized, however, that the practice of interpretation gives meanings to norms. Interpretations, at the very least, complement the role of sources

402    sources in interpretation theories in the law-​making process. There is a close connection between the two: sources, on the one hand, and interpretation, on the other. One way of thinking further about this close connection is to stress, as Duncan Hollis does in his chapter in this volume, that the sources of law present themselves as rules that also require interpretation.1 Interpretation is ‘existential’, in Hollis’ account, as it already partakes in the process of establishing what counts as a legal norms.2 I agree and opt for a different angle. My argument starts once a legal norm has been identified as a reference point for interpretation.3 Interpretation in international law, I submit, is best understood as an argumentative practice about the meaning of a legal norm. Interpreters’ argumentative practice, I argue, shifts meanings, offers new reference points for the legal discourse, and thereby contributes to the law-​making process. But recognizing that the practice of interpretation contributes to the process of law-​making is itself only the starting point for a series of further queries (section II: Norm Texts and their Meaning). A first set of such queries continues to ask how interpreters should go about their business. How should interpreters justify their choices as to which meaning to give to norms? What are the specific reasons that can justify claims about meaning in legal discourse? As is well known, the rule of interpretation in international law points to the ordinary meaning of the norm text, its context, its object and purpose, and to parties’ intentions. The rule of interpretation is, as all rules are, subject to interpretation. To possibly inform interpretations, the present chapter discusses different reasons that may support claims about the meaning of norms. Answers to what interpreters should do, however, remain largely inconclusive, at least in the abstract (section III: The Rule of Interpretation). A second set of queries continues to focus not on the rule of interpretation but on the reality of the interpretative practice (section IV: The Reality of Interpretation). The driving question is not what interpreters should do, but what they are doing. Approaches to the practice of interpretation in this vein place emphasis on how interpreters choose specific claims and justify them in a way that is most likely to make their own preferences prevail. Other approaches notably draw attention to the ways in which interpretations reflect the biases of interpreters and of interpretative communities—​biases that undergird both a given norm’s prevailing meanings and the prevailing limits of the legal discourse. This is one way in which section IV is in fact closely connected to the previous section III. The other way is by recognizing that social expectations on what interpreters should (not)

2   See ­chapter 20 by Duncan B. Hollis in this volume.  ibid.   See also Jean d’Aspremont, ‘The Idea of Rules in the Sources of International Law’, British Yearbook of International Law 84 (2014): 103–​34. 1

3

ingo venzke   403 do also limit what interpreters can actually do. These limitations account for the autonomy of international law as a distinct social practice. The conclusions show how thinking of interpretation as an argumentative practice invites further questions about the balance of reason, rhetoric, and power in that practice (section V: Conclusion). Throughout this chapter, reference is made to norms and norm texts. That is a straightforward focus when it comes to treaties and other texts (such as unilateral declarations, resolutions of international organizations, and judicial decisions, even if their interpretation may not be subject to the same argumentative demands). I submit that interpretation in international law is generally a matter of interpreting norm texts, even when it comes to customary law.4 There will always be a gap between, on the one hand, identifying and somehow articulating a customary norm and, on the other, any conclusion about the meaning of that norm, be it in a specific case or more generally. The practice of interpretation fills that gap and shifts its borders in an ever-​creative fashion. Arguments on how a customary norm should be interpreted are notably not well developed.5 That may well be due to the disputed belief that the process of law-​making ends with the identification of a customary norm according to the received criteria of a general practice and opinio juris.6 Arguments from the Vienna Convention on the Law of Treaties (VCLT), in any event, do not travel well within the land of custom, not the least because, when compared to treaty norms, a much higher degree of abstraction, if not mysticism, is necessary to understand a customary norm as the product of authors and their intentions. In spite of these differences, the chapter continues to speak of norm texts generically, regardless of their source.

4   For the concrete case of customary international law, see Hans Kelsen, ‘Théorie du droit international coutumier’, Internationale Zeitschrift für die Theorie des Rechts 1 (1939): 253–​74; more recently, in a compelling fashion, Panos Merkouris, ‘Interpreting the Customary Rules on Interpretation’ (1 February 2016), , accessed 22 September 2016. For the yet broader theoretical argument in support of this position, see Niklas Luhmann, Law as a Social System (Oxford: Oxford University Press, 2004), pp. 26, 54. 5   See the short paragraph in Matthias Herdegen, ‘Interpretation in International Law’, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2013), , para. 61. 6   The International Law Commission (ILC)’s work notably focuses on the ‘identification of customary international law’ and does not speak about its interpretation; see ILC, ‘Identification of Customary International Law:  Text of Draft Conclusions 1 to 16 [15] Provisionally Adopted by the Drafting Committee at the Sixty-​Sixth and Sixty-​Seventh Sessions’ (14 July 2015), UN Doc. A/​CN.4/​L869, as well as the Statement of the Chairman of the Drafting Committee, Mr Mathias Forteau (29 July 2015), , accessed 23 September 2016.

404    sources in interpretation theories

II.  Norm Texts and their Meaning 1. Taking Meaning and Giving It According to an orthodox view, international law is made the moment it comes into existence through the recognized channels of legal sources. The imagery of the metaphor is superb: the concept of the legal source pictures law-​making as a one-​time act when the law springs from dark and hidden places into daylight.7 The act of interpretation is then imagined as an act of discovery downstream. It is supposed to reveal and release the law that was made elsewhere. The creation of a norm through the channels of legal sources is accordingly the be-​all-​and-​end-​all of the law-​making process. Interpretation gives effect to the law but has nothing to do with its making. Occasionally, this view continues to resurface in legal scholarship and practice. In the words of one prominent commentary, interpretation is about ‘releasing the exact meaning and the content of the rule of law that is applicable to a given situation’.8 The international legal norm is supposed to contain within itself what the act of interpretation discovers. But this view was already subject to compelling critique at the time that the International Law Commission (ILC) drafted the VCLT.9 Sir Humphrey Waldock argued that ‘the process of interpretation, rightly conceived, cannot be regarded as a mere mechanical one of drawing inevitable meanings from the words in a text . . . In most cases interpretation involves giving a meaning to a text.’10 Waldock’s view is also reflected in the ultimate wording of Article 31 of the VCLT, which does not presume that treaty terms come with an inherent meaning that is somehow contained in the norm text. It speaks of the ‘ordinary meaning to be given to the terms of the treaty’. Rather than offering a basis that could decide between interpretations, norm texts provide reference points for the argumentative practice of interpretation—​for the semantic struggles about what the norm texts mean.11 This position follows on 7   Ingo Venzke, ‘The Role of International Courts as Interpreters and Developers of the Law: Working out the Jurisgenerative Practice of Interpretation’, Loyola of Los Angeles International and Comparative Law 34 (2011): 99–​131. 8   Jean-​Marc Sorel and Valérie Boré Eveno, ‘Article 31’, in Olivier Corten and Pierre Klein, eds, The Vienna Conventions on the Law of Treaties: A Commentary (Oxford: Oxford University Press, 2011), 804–​37, 806 (italics added). See also, Julien Fouret, Patrick Daillier, and Alain Pellet, Droit International Public, 7th edn (Paris: LGDJ, 2002), p. 253. 9   Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331). 10   Third Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur, YILC (1964) Vol. II (1964), pp. 5–​65, 53, quoting Harvard Law School, Research in International Law, part III, Law of Treaties, Article 19, p. 946 (italics in original). 11   Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford: Oxford University Press, 2012), pp. 37–​64; Ralph Christensen and Michael Sokolowski, ‘Recht als Einsatz im Semantischen Kampf ’, in Ekkehard Felder, ed., Semantische Kämpfe. Macht und

ingo venzke   405 the heels of different theories supporting that a norm text cannot itself decide which interpretation is the right one or whether a concrete interpretation falls within that norm or outside it.12

2. Interpretations as Specific Kinds of Arguments What follows from this starting point is that interpretations are best understood as arguments about which meaning should be given to a norm text. Interpretations are arguments—​claims to the law supported by reasons. Interpretations do not trace the steps that lead to the discovery of the law, preserved in the norm text. They offer reasons for why one meaning should be given to a norm text rather than another.13 It further follows that the practice of interpretation partakes in the process of law-​making.14 An equation of law-​making by way of interpretation with politico-​legislative law-​making that passes through the channels of the sources of law, however, does not follow from recognizing the law-​making side of interpretative practice. One way of supporting the distinction between different modes and moments of law-​making places emphasis on the different kinds of reasons that can support claims in a politico-​legislative context of law-​making, on the one hand, and in a context of interpretative law-​making, on the other.15 An example from international legal practice may be illustrative: the majority in the controversial Abaclat award argued that ‘it would be unfair to deprive the investor of its right to resort to arbitration based on the mere disregard of the 18 months litigation requirement’.16 In Sprache in den Wissenschaften (Berlin:  De Gruyter, 2006), 353–​7 1; Jean Combacau and Serge Sur, Droit international public, 9th edn (Paris: Montchrestien, 2010), p. 172.  Already Immanuel Kant convincingly argued that it is impossible to deduce decisions in a concrete case from abstract concepts; Immanuel Kant, Kritik der Reinen Vernunft (Frankfurt am Main: Suhrkamp, 1974 [1781]), p. 183, A 131–​48. The meanings of words can notably not be revealed through their connection with something that they represent. For that position, characteristic of classic times, see Michel Foucault, The Order of Things: An Archeology of the Human Sciences (New York: Vintage Books, 1994), especially pp. 58–​61. 13  Ulfried Neumann, ‘Theorie der juristischen Argumentation’, in Winfried Brugger, Ulfrid Neumann, and Stephan Kirste, eds, Rechtsphilosophie im 21. Jahrhundert (Frankfurt am Main: Suhrkamp, 2008), 233–​60. 14   One may think of large portions of judicial law-​making, see Armin von Bogdandy and Ingo Venzke, In Whose Name? A  Public Law Theory of International Adjudication (Oxford:  Oxford University Press, 2014). See also, Vaughan Lowe, ‘The Politics of Law-​Making: Are the Method and Character of Norm Creation Changing?’, in Michael Byers, ed., The Role of Law in International Politics (Oxford: Oxford University Press, 2000), 207–​26. 15   See Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: MIT Press, 1996), pp. 170, 190. 16   Abaclat and Others v The Argentine Republic, ICSID Case No. ARB/​07/​5, Decision on Jurisdiction and Admissibility (4 August 2011), para. 583 (italics added). 12

406    sources in interpretation theories his persuasive dissenting opinion, Georges Abi-​Saab critiqued that the majority ‘strike[s]‌out a clear conventional requirement, on the basis of its purely subjective judgment’.17 It is easy to see that Abi-​Saab would have struck the balance differently.18 That is not the point. A  balance had been struck ‘at the appropriate legislative level, by the parties themselves’, he argued.19 The balance is reflected in the treaty text opening up an avenue towards international arbitration but subjecting it to an eighteen-​month domestic litigation requirement. Arguments of fairness or expediency were on the table when drafting the treaty text and they have led to a certain outcome. The tribunal must not unravel the legislative agreement. It needs to stay within the confines of the practice of interpretation. Interpretations may thus be understood as claims about meaning that are supported by a specific, limited set of reasons. The limits are sustained by a ‘culture of formalism’, a professional ethos.20 Where the borders of such a culture lay—​i.e., what kinds of arguments are allowed and which are not—​differs between contexts and audiences.21 The demands vary significantly regarding who is interpreting—​a scholar in a law journal or a judge in a decision. Bearing those differences in mind, positions on where to draw the line are not the least expressions of what the interpreter should do. To which degree should the interpreter stick to the norm text? Might she even be allowed to invoke considerations such as those of fairness?

III.  The Rule of Interpretation The prevailing limits of the interpretative discourse are shaped by the rule of interpretation. As is well known, Article 31 of the VCLT spells out the general rule of interpretation—​in the singular, notably: ‘(1) A treaty shall be interpreted in good   Abalcat, Dissenting Opinion, Georges Abi-​Saab, 28 October 2011, para. 30. 19   ibid., para. 33.   ibid., para. 31. 20   Martti Koskenniemi, The Gentle Civilizer of Nations (Cambridge: Cambridge University Press, 2001), p. 494; Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011), pp. 27–​9. 21   Ingo Venzke, ‘Judicial Authority and Styles of Reasoning: Self-​Presentation between Legalism and Deliberation’, in Joana Jemielniak, Laura Nielsen, and Henrik Palmer Olsen, eds, Establishing Judicial Authority in International Economic Law (Cambridge: Cambridge University Press, 2016), 240–​62 (on the role of audiences for judicial reasoning). See Martti Koskenniemi, ‘Letter to the Editors of the Symposium’, American Journal of International Law 93 (1999): 351–​61. 17

18

ingo venzke   407 faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ Article 31 does not stop there, of course, but specifies what counts as context in paragraph two and lists, in paragraph three, what else one should take account of, together with the context. Article 32 of the VCLT points to the supplementary means of interpretation, especially the preparatory work of the treaty.22 The rule of interpretation is certainly subject to the same fate of interpretation. With the words of Ludwig Wittgenstein, it ‘hangs in the air along with what it interprets, and cannot give it any support’.23 The practice of using Articles 31 and 32, not their text itself, can offer some cues—​albeit loose and fluctuating—​about the prevailing limits of the interpretative discourse.24 Plus, some reasons in support of interpretative claims fare better than others from the vantage point of interpretative theories.

1. The Common, Ordinary Meaning A first and arguably foremost reason for giving a certain meaning to a norm would be that it is simply the ordinary one.25 Taking his cues from Wittgenstein, Dennis Patterson argues that the practice of interpretation in fact needs common, ordinary usage as a basis. Interpretation cannot itself establish the meaning of a norm text without an already present practice of rule-​following.26 Interpretation is, in Patterson’s words, parasitic on the understandings that common usage sustains.27 We can only interpret a practice that is already there—​the common usage. Whether we do so successfully, Patterson further submits, can only be known if we join the practice, i.e. in a pragmatic sense.28 The thought of Robert Brandom further supports and clarifies this position. Reaching deep into theories of linguistics, Brandom explains his approach in a way that speaks to (international) lawyers, namely with a case law model of communication in which the interpreter takes the prototypical role of the judge. ‘The current judge’, Brandom writes, ‘is held accountable to the tradition she inherits by the

22   For an exposition see also Richard K. Gardiner, Treaty Interpretation (Oxford: Oxford University Press, 2008). 23   Ludwig Wittgenstein, Philosophical Investigations (Oxford: Blackwell, 1958), para. 198. 24   For a discussion of the central role of the VCLT for the international legal system, see Gleider I. Hernández, ‘Interpretation’, in Jean d’Aspremont and Jörg Kammerhofer, eds, International Legal Positivism in a Post-​Modern World (Oxford: Oxford University Press, 2014), 317–​48, 322–​6. 25   And there are no indications that the parties intended to give a special meaning to the term according to Art. 31 (4) of the VCLT. 26  Wittgenstein, Philosphical Investigations, para. 198. 27   Dennis Patterson, ‘Interpretation in Law’, San Diego Law Review 42 (2005): 685–​7 10. 28   Patterson, ‘Interpretation in Law’.

408    sources in interpretation theories judges yet to come.’29 In other words, whether an interpretation is correct depends on how it fits with past practices (i.e. common, ordinary usage) as assessed by the next interpreter down the line. Interpreters in the present are tied to the past by interpreters of the future.30 Future judges tie them to the common, ordinary meanings that they inherit. At the same time, interpretative practice can and does shift common, ordinary meanings. It is the relationship between interpreters, not some inherent meaning, that stabilizes meanings and also allows them to change. For example, when interpreters in the context of the World Trade Organization (WTO) argue about what it means that a trade-​restrictive measure must be ‘necessary’ in the sense of Article XX of the General Agreement on Tariffs and Trade (GATT), they support their claims with references to that term’s ordinary meaning, mostly as taken from dictionaries.31 The Appellate Body (AB) did so as well and found that a measure is ‘necessary’ if there is no less restrictive alternative that is reasonably available. The AB has shaped the legal discourse, which has accepted its interpretative claim and now continues to develop further what it means that an alternative trade measure must be ‘reasonably available’. Interpretative practice has shifted the meaning of ‘necessary’ and it has offered new reference points for interpretation (i.e. ‘reasonably available’).32 There are a series of other lingering questions, including at which point in time the meaning of norm text needs to be ordinary—​at the time of concluding a treaty or at the time of applying it.33 The case between Nicaragua and Costa Rica before the International Court of Justice (ICJ) illustrates the problem. By virtue of an 1858 boundary treaty, Nicaragua had obliged itself to respect Costa Rica’s right to use the San Juan River for ‘free navigation . . . for the purposes of commerce’.34 It seems correct, as Nicaragua had argued in its submissions, that commerce meant trade in goods at the time when the treaty was concluded. No one could then have foreseen   Robert B. Brandom, ‘Some Pragmatist Themes in Hegel’s Idealism: Negotiation and Administration in Hegel’s Account of the Structure and Content of Conceptual Norms’, European Journal of Philosophy 7 (1999):  164–​89, 181. For a concise introduction and summary, see Jasper Liptow, Regel und Interpretation. Eine Untersuchung zur sozialen Struktur sprachlicher Praxis (Weilerswist: Velbrück, 2004), pp. 220–​6; see also Ralph Christensen, ‘Neo-​Pragmatismus: Brandom’, in Sonja Buckel, Ralph Christensen, and Andreas Fischer-​Lescano, eds, Neue Theorien des Rechts (Stuttgart:  Lucius und Lucius, 2009), 239–​62, 242. 30   Makus Winkler, ‘Die Normativität des Praktischen’, Juristenzeitung 64 (2009): 821–​9. 31   General Agreement on Tariffs and Trade (GATT) (Geneva, 30 October 1947, 55 UNTS 194). On that use of dictionaries, see Douglas A. Irwin and Joseph H. H. Weiler, ‘Measures Affecting the Cross-​ Border Supply of Gambling and Betting Services (DS 285)’, World Trade Review 7 (2008): 71–​113. 32   See e.g., WTO, Brazil—​Retreaded Tyres, Appellate Body Report (3 December 2007) WT/​DS332/​ AB/​R. 33   See also Ulf Linderfalk, ‘Is Treaty Interpretation an Art or a Science? International Law and Rational Decision Making’, European Journal of International Law 26 (2015): 169–​89, 174–​5. 34   Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment) [2009] ICJ Rep 213 (the Court takes ‘free navigation . . . for the purposes of commerce’ as the English translation of the Spanish treaty text; see para. 56). 29

ingo venzke   409 that commerce would one day extend to a services industry such as ecotourism.35 But it seems equally clear that ecotourism is today a (significant) commercial activity. As the meaning of commerce has changed, Nicaragua’s treaty obligations have changed with it. According to the ICJ’s majority, it may even be presumed that the parties to the boundary treaty intended to use terms whose ‘meaning or content is capable of evolving’.36 In sum, the law changes through changes in the ordinary meaning of norm texts—​those changes may be part of larger societal process (e.g. ‘commerce’ in the boundary treaty), or they may primarily be the product of the legal discourse itself (e.g. ‘necessary’ in Article XX of the GATT).

2. The Context Norm texts do not stand in a vacuum, but come with context, object, and purpose.37 The minority of judges in the ICJ case between Nicaragua and Costa Rica did not find the claims to the ordinary meaning of commerce persuasive and instead placed emphasis on the context in which that term had been used.38 In order to theoretically support references to the context of norm texts one could highlight that meaning is relational, not representational—​that the meaning of trade in ‘goods’ gains meaning in distinction with ‘services’ or that the meaning of ‘combatant’ emerges from its distinction with ‘civilian’ and not from something that the terms ‘goods’ or ‘combatant’ really represents.39 Modern linguistics would speak of semantic webs of meanings—​the meaning of a term is essentially embedded within a web of others.40 Article 31 (3) of the VCLT notably lists a series of considerations that ‘shall be taken into account, together with the context’. It extends to ‘subsequent agreements’, ‘subsequent practice’, and ‘other relevant rules of international law’. This larger context has received great attention in debates about interpretation in international law, 35  ICJ, Navigational and Related Rights, Counter-​memorial of Nicaragua, vol. I, 27 May 2007, pp. 154–​ 61, and Rejoinder of Nicaragua, 15 July 2008, pp. 8–​9. 36  ICJ, Navigational and Related Rights (Judgment), para 64. 37   It is repeatedly claimed that the Arts 31 and 32 of the VCLT ought to be applied in a holistic fashion. See, inter alia, WTO, US—​Continued Zeroing, Appellate Body Report (4 February 2005) WT/​ DS350/​AB/​R, para. 268. 38   See in detail Georg Nolte, ‘Between Contemporaneous and Evolutive Interpretation:  The Use of “Subsequent Practice” in the Judgment of the International Court of Justice Concerning the Case of Costa Rica v. Nicaragua (2009)’, in Holger P. Hestermeyer, Doris König, Nele Matz-​Lück, Volker Röben, Anja Seibert-​Fohr, Peter Tobias Stoll, and Silja Vöneky, eds, Coexistence, Cooperation and Solidarity, vol. II (Leiden: Martinus Nijhoff, 2011), 1675–​84. 39   Ferdinand de Saussure, Course in General Linguistics (Chicago: Open Court, 1983), pp. 65, 106. In further detail with a critical assessment, Ingo Venzke, ‘Is Interpretation in International Law a Game?’, in Andrea Bianchi, Daniel Peat, and Matthew Windsor, eds, Interpretation in International Law (Oxford: Oxford University Press, 2015), 352–​72. 40   Jasper Liptow and Georg W. Bertram, eds, Holismus in der Philosophie. Ein zentrales Motiv der Gegenwartsphilosophie (Weilerswist: Velbrück, 2002). See also Foucault, The Order of Things, p. 16.

410    sources in interpretation theories including in the work of the ILC.41 A lot of doctrinal questions of how to understand this paragraph, however, remain open without the possibility of approaching them here.

3. The Object and Purpose a. Policy-​Oriented Jurisprudence Another set of reasons that can support claims about what a norm text means connects to the text’s object and purpose. In the process of drafting the VCLT, these reasons were strongly favoured by Myres McDougal. In his view, an interpreter should ask herself what the purpose of the law is in the concrete case. She should then adopt the interpretation that best meets that purpose.42 McDougal was certainly aware that the purpose is hard to determine, and that different claims might easily compete in this regard. Together with his colleagues in New Haven, he thus constructed a whole set of guiding moral principles, all of which would ultimately be directed towards the protection of human dignity.43 The norm text in fact recedes quite far into the background of the interpretative practice. Michael Reisman argued further in this line that international legal doctrine and practice had set up a myth—​namely, the myth that international law could be found by looking at the sources of law.44 Instead, he opined, international law emerges from the myriad of legal communications that a plethora of actors utter every day. That practice should be guided by—​and be interpreted in the light of—​overarching concerns of humanity.45 These two elements of the policy-​oriented jurisprudence à la New Haven are central: first, it contends that interpretation ought to be directed at the overarching purpose of international law, the protection of human dignity or humanity.   See the ILC’s completed project on the ‘Fragmentation of International Law’ and its ongoing work on ‘Subsequent Agreements and Subsequent Practice in Relation to Interpretation of Treaties’,, accessed 23 September 2016. 42   Myres S. McDougal, International Law, Power, and Policy: A Contemporary Conception, vol. 82, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1954), 133–​259; Myres S. McDougal, Harold D. Lasswell, and James C Miller, The Interpretation of Agreements and World Public Order (New Haven: Yale University Press, 1967). 43   See McDougal et al., The Interpretation of Agreements. The inheritance of classic legal realism and its functionalism are clear; see especially Felix S. Cohen, ‘Transcendental Nonsense and the Functional Approach’, Columbia Law Review 35 (1935):  809–​49. With different theoretical baggage but coming close to the arguments from New Haven, see also Hans J. Morgenthau, ‘Positivism, Functionalism, and International Law’, American Journal of International Law 34 (1940): 260–​84. 44   W. Michael Reisman, ‘International Lawmaking: A Process of Communication’, American Society of International Law Proceedings 75 (1981): 101–​20. 45  W. Michael Reisman, ‘Unilateral Action and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention’, European Journal of International Law 11 (2000): 3–​18; see Ingo Venzke and Jochen von Bernstorff, ‘Ethos, Ethics, and Morality in International Relations’, in Wolfrum, ed., The Max Planck Encyclopedia of Public International Law, . 41

ingo venzke   411 Secondly, it recognizes the creativity of interpretative practice and sees law-​making as a process of communication. The main points of critique, in turn, have centred on the abundant faith in the moral judgement of the interpreter and on the fate of the authors of the law, who recede all too far into the background.46

b. Integrity and Fit Coming from a decidedly different angle, Ronald Dworkin similarly places emphasis on the purpose of the law. An interpretation should conform to the best justification possible in terms of practical morality. Such a principle of integrity, however, stands next to the consideration of how well an interpretation fits with past practices. Rather than connecting interpretations to common usage alone, Dworkin’s position directs emphasis towards the more forward-​looking concerns of practical morality (‘integrity’). But in contrast to policy-​oriented jurisprudence, it matters how present interpretations connect to the past (‘fit’).47 Dworkin recognizes the creativity of interpretative practices and takes on the task of guiding interpreters in those moments of creativity.48 While he acknowledges the political nature of this practice, he does not see law as a matter of personal or partisan politics.49 In fact, such a view would misunderstand legal practice, he argues. Leaning on comparisons with the practice of interpretation in the field of literature, he submits that the best understanding of the practice of interpretation sees it as presenting norm texts in their best light. This is what an interpreter should do, and it offers the best understanding of what interpreters are doing. There might well be disagreement about which interpretation presents a text in its best light, but pursuing that aim is all the same what interpretation is about.50 Dworkin turned to international law, rather than law generally, shortly before the end of his life. In his posthumously published ‘New Philosophy for International Law’, he posits that best sense is made of a text like the UN Charter in light of the

 Georges Abi-​Saab, ‘Les sources du droit international:  Essai de déconstruction’, in Manuel Rama-​Montaldo, ed., El derecho internacional en un mundo en transformación. Liber amicorum en homenaje al Profesor Eduardo Jiménez de Aréchaga, vol. 1 (Montevideo:  Fundación de Cultura Universitaria, 1994), 29–​49. Gerald G. Fitzmaurice, ‘Vae Victis or Woe to the Negotiator! Your Treaty or Our Interpretation of It?’, American Journal of International Law 65 (1971): 358–​73; Richard A. Falk, ‘Casting the Spell: The New Haven School of International Law’, Yale Law Journal 104 (1995): 1991–​ 2008, 2001 (noting that judgments as to what human dignity required have neatly coincided with the interests of US foreign policy). 47   Ronald Dworkin, ‘Law as Interpretation’, Critical Inquiry 9 (1982): 179–​200. 48   Ronald Dworkin, Law’s Empire (Cambridge: Belknap, 1986), pp. 249, 256. Dworkin developed the steps of the interpretative process in his Justice for Hedgehogs (Cambridge: Belknap, 2013), see particularly pp. 131–​2. 49   Dworkin, ‘Law as Interpretation’. 50  Dworkin, Law’s Empire, p. 243, also pp. 14 and 49 (noting that, of course, ‘any adequate account of interpretation must hold true of itself ’.). See also Samantha Besson, The Morality of Conflict: Reasonable Disagreement and the Law (Oxford: Hart, 2005), pp. 69–​7 1. 46

412    sources in interpretation theories aim that underlies international law.51 That is, ‘the creation of an international order that protects political communities from external aggression, protects citizens of those communities from domestic barbarism, facilitates coordination when this is essential, and provides some measure of participation by people in their own governance across the world’.52 Interpretations must take these goals together and seek to make them compatible.53 But how should specific goals—​the law’s object and purpose—​decide between competing interpretations?54 Not only may different goals frequently compete, but a single goal can plausibly be invoked to support different interpretations. Taking the aim of the UN Charter as Dworkin describes it, it is not so clear, for example, whether anything would be gained at all by referring to that aim in debates about the legality of humanitarian intervention. One side would argue that allowing humanitarian intervention provides a pathway for external aggression and thus clearly goes against the aim. Another side would argue that prohibiting humanitarian intervention protracts domestic barbarism and therefore contravenes the UN Charter. A third side would decry the terms of the debate and argue that the reference to domestic barbarism is clearly a projection of neo-​colonial attitudes, etc. Different interpretations of a norm text tend to reflect divergent understandings of the purpose of the norm or how to best to pursue that purpose; invoking the purpose is then part of carrying out that difference rather than a basis for settling it.

4. Authors and their Intentions Article 32 of the VCLT opens the way to ‘supplementary means of interpretation, including the preparatory work of a treaty’ when interpretations otherwise remain ambiguous or obscure. Within the debates on the VCLT in the ILC, Hersch Lauterpacht argued that looking at the text without determining the will of the parties would be as bad as engaging in a kind of Begriffsjurisprudenz (conceptual jurisprudence) of the worst kind.55 According to Lauterpacht, an ordinary meaning, even if placed in its context, object, and purpose, could at best create a refutable presumption; it should most certainly not be decisive. Importance should rather be

  Charter of the United Nations (San Francisco, 26 June 1945, 1 UNTS 16).  Ronald Dworkin, ‘A New Philosophy for International Law’, Philosophy & Public Affairs 41 (2013): 2–​30, 22. 53  ibid. 54   Similarly, Başak Çali, ‘On Interpretivism and International Law’, European Journal of International Law 20 (2009): 805–​22, 822. 55  Hersch Lauterpacht, ‘De l’Interprétation des Traités:  Rapport’, Annuaire de l’Institut de Droit International 43 (1950): 366–​460. 51

52

ingo venzke   413 attached to the travaux préparatoires as ‘a fundamental, if not the most important, element in the matter of treaty interpretation’.56 More recently, and with much theoretical distance, Stanley Fish argued in a crisp, though drastic, fashion that an interpreter must look at the authors’ intentions, and at those intentions only. An interpreter cannot but understand the meaning of a text through the intentions of the author. If an interpreter did not try to understand authors’ intentions, Fish submits, she would not actually be interpreting the text but make up her own mind of what it should mean.57 Whoever reads a treaty does so ‘explicitly or implicitly . . . with an author in mind. And they have no choice but to do so.’58 Aiming at the authors’ intentions, in other words, is not a method for Fish, but it defines the nature of interpretation.59 Fish dismisses the proposition that meaning is ordinary on the basis that we readily adapt our understanding of what something means when we learn about authors’ intentions. For example, if somebody reads a sign instructing her that she may not cross the yellow line on the platform of a train station, that somebody remains with little doubt that this sign is not meant to prohibit her from crossing the line to step aboard a train. Such a sign highlights the limits of textual interpretation that clings to the ordinary meaning and shows how interpretations need to consider what the author of the law had in mind, or draw inferences about it—​for instance by looking at the extended context according to Article 31 (3) of the VCLT, or by turning to the preparatory work in accordance with Article 32. There is a close connection between referring to intentions and referring to the object and purpose. The difference is, however, that the latter may take the law further away from what might have been intended, which is precisely why Lauterpacht and others wished to elevate the role of parties’ intentions. But the problems for the intentionalist approach to interpretation mirror some of the problems that exist with placing emphasis on the object and purpose. First and foremost, how can the interpreter establish the intentions of authors, especially when they are many and when they connect to collective actors such as States? Philipp Allot wrote of a treaty as ‘disagreement reduced into writing’.60 Parties agree on the text of the law. More often than not, they had different intentions when signing it and those differences resurface in later arguments about what a norm text means.

  ibid., p. 397.  Stanley Fish, ‘Intention is All There Is:  A  Critical Analysis of Aharon Barak’s Purposive Interpretation in Law’, Cardozo Law Review 29 (2008): 1109–​1146, 1122 (this is the only way to ‘kee[p]‌ the game honest’). 58   Larry Alexander and Salkrishna Prakash, ‘ “Is that English You’re Speaking?” Why Intention Free Interpretation is an Impossibility’, San Diego Law Review 41 (2004): 967–​95, 976, quoted in Fish, ‘Intention is All There Is’, pp. 1111–​12 (italics added). 59   Stanley Fish, ‘There is No Textualist Position’, San Diego Law Review 42 (2005): 629–​35, 629. 60  Philip Allott, ‘The Concept of International Law’, European Journal of International Law 10 (1999): 31–​50. 56 57

414    sources in interpretation theories

IV.  The Reality of Interpretation Section III discussed different answers to how an interpreter should go about her business. Given that these answers remained largely inconclusive, the question of what interpreters are really doing when they interpret is even more pressing. The present Section IV turns from the rule of interpretation to that reality.

1. Struggle, Hegemony, and Rhetoric A first, unsurprising, answer may be that interpreters lay claims to the meaning of the law that are aligned with their interests and convictions and that they choose arguments in an opportune fashion, in a way that aims to persuade relevant audiences. They seek to make their own preference prevail. By way of legal interpretation, actors seek to pull the law onto their side. In other words, they are invested in a semantic struggle.61 In this vein, Martti Koskenniemi and others have thought of all legal interpretation as hegemonic: International actors routinely challenge each other by invoking legal rules and principles on which they have projected meanings that support their preferences and counteract their opponents. . . . To think of this struggle as hegemonic is to understand that the objective of the contestants is to make their partial view of that meaning appear as the total view, their preferences seem like the universal preference.62

Any interpretation would be hegemonic because it makes inevitably particular claims appear in the universalizing language of the law, in a cloak of universal rightness.63 This perspective on the argumentative practice of interpretation zooms in on the forces and dynamics that make one claim prevail rather than another. Whereas Jürgen Habermas sees arguments as reasons that rationally motivate their addressees to accept what the arguments purport to justify,64 hegemonic contestation replaces the focus on the acceptability of interpretations with an emphasis on the brute fact   See above, n. 11.   Martti Koskenniemi, ‘International Law and Hegemony: A Reconfiguration’, Cambridge Review of International Affairs 17 (2004): 197–​218, 199 (italics in original). 63   Regarding the specific example of international trade law, see Jason Beckett, ‘Fragmentation, Openness and Hegemony:  Adjudication and the WTO’, in Meredith Kolsky and Susy Frankel, eds, International Economic Law and National Autonomy (Cambridge:  Cambridge University Press, 2010), 44–​70. 64  Habermas, Facts and Norms, pp. 226–​7; Josef Kopperschmidt, Argumentationstheorie (Hamburg: Junius, 2000); Hans Wohlrapp, The Concept of Argument (Berlin: Springer, 2014). 61

62

ingo venzke   415 of acceptance. The criterion by which arguments are assessed is their success and the currency is power. The reasons for which an interpretation is accepted either fall off the radar, or they are rethought as rhetoric, if not as violence.65 If the factors that contribute to the acceptance of one interpretation of the law rather than another are understood, then it is possible to come closer to understanding the power dynamics that undergird the practice of interpretation.66 Better understandings of structural biases, of dominating concerns, and silenced perspectives, are then closer by.67 The key question is, ‘What are the presumptions on which going interpretations rest?’68 Understanding interpretations as the expressions of a struggle to make specific preferences in the general language of international law offers a powerful perspective on the practice of interpretation. But can interpreters not be driven by sincere convictions or the genuine ambition to find the morally best answer? That may well be the case, but it might then be suggested that those convictions are bound to remain partial and the acceptance of an interpretation therefore ought to be understood as an expression of power relations rather than something like genuine agreement.69 Support for this position may be found in the rejection of something like a universal morality so that every claim to it is inevitably hegemonic. That, however, is itself a questionable metaphysical claim. Better support for challenging interpreters’ reach for the morally best answer comes from reminders of their situatedness. With an example of competing interpretations in the laws of war, David Kennedy thus contends that ‘[n]‌o one, after all, experiences the death of her husband or sister as humanitarian and proportional’.70 Considering the widow irrational for not agreeing with a claim about the legality of her husband’s killing would add insult to injury. And even if, with shaky confidence, one were to abstract from the perspective of the widow, it is hard to deny that ‘[p]ersuasion and consensus also rest on status of forces and are the product of coercive struggle’.71 Interpretations are expressions of power—​be it power vested in the interpreter or in the background structures and biases that render some interpretations more likely to succeed than others. 65   On the rich tradition of rhetorical thought in the context of international law, see Iain Scobbie, ‘Rhetoric, Persuasion, and Interpretation in International Law’, in Bianchi et al., eds, Interpretation in International Law, 61–​77. On violence in legal interpretation and in law, see Robert M. Cover, ‘Violence and the Word’, Yale Law Journal 95 (1986): 1601–​1630; Christoph Menke, Recht und Gewalt (Berlin: August, 2011). 66   David Kennedy, ‘The Turn to Interpretation’, Southern California Law Review 58 (1985): 251–​76. 67   See Fuad Zarbiyev, Le discours interprétatif en droit international contemporain. Un essai critique (Brussels: Bruylant, 2015), p. 54. 68   See e.g., Martti Koskenniemi, ‘ “The Lady Doth Protest Too Much”:  Kosovo, and the Turn to Ethics in International Law’, Modern Law Review 65 (2002): 159–​75. 69  Koskenniemi, Gentle Civilizer, p. 492. 70  David Kennedy, A World of Struggle:  How Power, Law and Expertise Shape Global Political Economy (Princeton: Princeton University Press, 2016), p. 275. 71  ibid., p. 7.

416    sources in interpretation theories

2. Interpreter’s Biases The situatedness and biases of the interpreter are a theme that has originally been worked out in the field of hermeneutics—​the field that is concerned precisely with the theory and method of establishing meaning. Closely connected to the notion of exegesis, hermeneutics first developed in religious sciences focused on the interpretation of holy texts.72 Through the contrasting work of Friedrich Schleiermacher and Wilhelm Dilthey, hermeneutics advanced into a more encompassing theory of textual interpretation. Whereas Dilthey still defended the possibility of objective understanding across space and time, Martin Heidegger, and then Hans-​Georg Gadamer in his wake, argued that any attempt at understanding is premised on an interpreter’s biases and prior understanding.73 The key point is that the interpreter cannot but approach any object with background knowledge. What the interpreter should seek to do is to make the structure of her own situatedness explicit. She should try and make explicit what she brings with her into the process of interpretation and what she learns about herself in that process.74 Gadamer argued that the process of understanding actively resists and inevitably escapes any attempt at being squeezed into a method, any set of rules.75 He model­ led his hermeneutic approach on the example of works of art, the understanding of which ought to be grasped as the product of an experience in which the spectator and the work of art stand in a dialogue with one another. Meaning is the product of this experience and not, according to Gadamer, the product of a reconstruction (Schleiermacher) or of decryption (Dilthey). In his seminal Wahrheit und Methode (Truth and Method), Gadamer thus developed a ‘theory of hermeneutical experience’, which takes its cues from the fact that all understanding is premised on prior understandings, on biases. The subjectivity that hermeneutics introduces into the quest for meaning should not be understood as problematic, according to Gadamer. His theory of hermeneutical experience rather demands that the interpreter learns about her biases through dialogue. Hermeneutics, for Gadamer, is a mode of reflection.76 The main challenge that hermeneutics thus introduces to theories of interpretation in international law is the emphasis on the situatedness and finite subjectivity 72   See Matthias Goldmann, ‘Dogmatik als rationale Rekonstruktion: Versuch einer Metatheorie am Beispiel völkerrechtlicher Prinzipien’, Der Staat 52 (2014): 373–​99. 73   For the hermeneutics of Paul Ricoeur, as attuned to issues of international law, see Janne E. Nijman, ‘Paul Ricoeur and International Law: Beyond “The End of the Subject”. Towards a Reconceptualization of International Legal Personality’, Leiden Journal of International Law 20 (2007): 25–​64. 74   Ralf Poscher, ‘Hermeneutics, Jurisprudence and Law’, in Routledge Companion to Philosophical Hermeneutics, edited by Jeff Malpas and Hans-​Helmuth Gander (Abingdon: Routledge, 2015), 451–​65. 75   Hans-​Georg Gadamer, Wahrheit und Methode. Grundzüge einer philosophischen Hermeneutik. Gesammelte Werke, Bd. 1 (Tübingen: Mohr Siebeck, 1999), p. 3. 76   Hans-​Georg Gadamer, Philosophical Hermeneutics (Berkeley:  University of California Press, 1976), pp. 18–​43.

ingo venzke   417 of the interpreter.77 Outi Korhonen has shown how international legal doctrine has tried to blend out the interpreter in any act of interpretation and how it struggles, in turn, with the challenge of every interpreter’s situatedness.78 The language of international law helps the interpreter to hide. It prevents her from revealing her situatedness and demands that she keep her biases well hidden.79 For Korhonen, however, as for many other scholars leaning towards critical thinking, the choices of the interpreter are the retainer for any hope of betterment.80 What is more, an analysis of interpretation, as Kennedy has argued, can foreground what the interpreter must have been thinking, mapping her socially constructed consciousness.81 Rather than steaming ahead to interpret international law in the service of what is considered best, a hermeneutic stance would reveal the biases in interpretation and instruct the interpreter about her own practice.

3. Interpretative Communities Biases not only play a role at the individual level of the interpreter, but also on a more collective level of a community of interpreters. According to Fish, what makes an interpretation acceptable is that it corresponds to the interpretative angle from which other interpreters also approach the text. Disagreement about what a text means is ‘not . . . a disagreement that could be settled by the text because what would be in dispute would be the interpretative “angle” from which the text was to be seen, and in being seen, made’.82 With specific regard to international law, Andrea Bianchi has argued that interpretative communities shape bare norm text through the interpretative angles that

  For a different application of Gadamer’s hermeneutics to international law, placing emphasis on changes of meaning over time, see Emmanuel Voyiakis, ‘International Law, Interpretative Fidelity and the Hermeneutics of Hans-​Georg Gadamer’, German Yearbook of International Law 54 (2011): 385–​420. 78   Outi Korhonen, ‘New International Law: Silence, Defence or Deliverance?’, European Journal of International Law 7 (1996): 1–​28, 28. 79   ibid., pp. 7–​9. 80   See further, Isabel Feichtner, ‘Critical Scholarship and Responsible Practice of International Law. How Can the Two be Reconciled?’, Leiden Journal of International Law 29 (2016): 979–​1000; see also Sundhya Pahuja, ‘Laws of Encounter: A Jurisdictional Account of International Law’, London Review of International Law 1 (2013): 63–​98; Jan Klabbers, ‘Virtuous Interpretation’, in Malgosia Fitzmaurice, Olufemi Eias, and Panos Merkouris, eds, Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years On (Leiden: Martinus Nijhoff, 2010), 17–​39. 81   Kennedy, ‘The Turn to Interpretation’, p. 255. 82  Stanley Fish, Doing What Comes Naturally. Change, Rhetoric, and the Practice of Theory in Literature and Legal Studies (Durham: Duke University Press, 1989), pp. 141–​2. In further detail, see Stanley Fish, ‘What Makes an Interpretation Acceptable’, in Fish, ed., Is There a Text in This Class? The Authority of Interpretative Communities (Cambridge: Harvard University Press, 1980), 338–​55. 77

418    sources in interpretation theories they embrace.83 Building on the work of Fish, he submits that social dynamics and prevailing standards on how to read the law within an interpretative community form international law.84 That view has purchase, but it also has shortcomings. For Fish, the idea of interpretative communities is an afterthought that has not eased its way into a compelling theoretical set-​up.85 What is the point of engaging in an argument about the meaning of a text, according to Fish? There seems to be no room for arguments in the sense that they can contribute to inducing acceptance. According to Fish, an interpretation finds acceptance if it resonates with the interpretative angle that a community shares. That is a premise, not an effect of argumentation. The approach is silent on the mechanisms that might work towards such a premise or that lead an interpreter to adopt one specific angle rather than another.86 If the interpretative posture is what anchors the community, what happens between communities other than competition? Understanding and exploring competition opens an insightful perspective on the relationship between fragmented interpretative communities within international law and within specific fields. One may consider, for example, the divide between military and humanitarian lawyers in the laws of war or between commercial and public lawyers in international investment law.87 Between communities, international law is silent.

4. Meaningful Limitations Acknowledging the role of the status of forces and of biases in legal discourse does not per se reduce the practice of interpretation to an expression of power or culture only. There is frequently a quality to the interpretative practice of international law that renders it distinct. This difference is the autonomy of international law. The fact that only some arguments are allowed in international legal discourse and not others—​however porous and fluctuating the limits may be—​makes interpretation in law a distinct enterprise. A professional ethos of lawyers is probably one

83  Andrea Bianchi, ‘Textual Interpretation and (International) Law Reading:  The Myth of (In) Determinacy and the Genealogy of Meaning’, in Pieter H. F. Bekker, Rudolf Dolzer, and Michael Waibel, eds, Making Transnational Law Work in the Global Economy (Cambridge: Cambridge University Press, 2010), 34–​55. 84   Andrea Bianchi, ‘The Game of Interpretation in International Law: The Players, The Cards, and Why the Game is Worth the Candle’, in Bianchi et al., eds, Interpretation in International Law, 34–​60. 85   Dennis Patterson, Law and Truth (Oxford: Oxford University Press, 1996), p. 100. 86   ibid., p. 124. 87   David Luban, ‘Military Necessity and the Cultures of Military Law’, Leiden Journal of International Law 26 (2013):  315–​49; Stephan W. Schill, ‘Crafting the International Economic Order:  The Public Function of Investment Treaty Arbitration and Its Significance for the Role of the Arbitrator’, Leiden Journal of International Law 23 (2010): 401–​30, 430.

ingo venzke   419 of the most important elements that sustains the limits and maintains the autonomy of international law.88 External descriptions of legal practices that do not take this ethos seriously—​this internal point of professional practice—​notably fail as external descriptions. This point has been made strongly by Pierre Bourdieu, who pays tribute to the idea that the interpretative struggle is one for power, for dominance over the law, and thus over others.89 But it is a struggle that must take shape within the strictures imposed by the legal discourse. What Bourdieu brings back into the equation is the mode of arguing, which maintains limitations that are meaningful. Those limit­ations are part of the social reality that structures the practice.90 ‘Far from being a simple ideological mask’, Bourdieu argues, ‘such a rhetoric of autonomy, neutrality, and universality, which may be the basis of a real autonomy of thought and practice, is the expression of the whole operation of the juridical field and, in particular, of the work of rationalization to which the system of juridical norms is continually subordinated.’91 The autonomy of interpretative practice stems itself against its immediate alignment of the law with the interests of the most powerful. This autonomy is itself the product of the dominant mode of arguing. While itself caught up in power dynamics, it maintains meaningful limitations. It is in this way that arguments about what interpreters should do in section III are closely linked to accounts of what interpreters are actually doing in section IV. Plus, conversely, beliefs about what interpreters should do and the limitations that they impose on the legal discourse, themselves reflect actors’ interests, their convictions, and their power relations.

V. Conclusion This chapter has proceeded on an understanding of interpretation as an argumentative practice about the meaning of legal norms. In section II it has left behind understandings of interpretation as releasing or revealing meaning. Interpretations do not take meaning from norm texts, but rather give meaning to them.   See above, n. 20.   Pierre Bourdieu, ‘The Force of Law:  Toward a Sociology of the Juridical Field’, Hastings Law Journal 38 (1987): 814–​53. 90   Pierre Bourdieu and Loïc J.  D. Wacquant, An Invitation to Reflexive Sociology (Chicago:  The University of Chicago Press, 1992); Yves Dezalay and Mikael Rask Madsen, ‘The Force of Law and Lawyers: Pierre Bourdieu and the Reflexive Sociology of Law’, Annual Review of Law and Social Science 8 (2012): 433–​52. 91   Bourdieu, ‘The Force of Law’, p. 820. 88

89

420    sources in interpretation theories In section III it has then discussed how interpreters should go about their business. Which reasons can be invoked to justify choices about the meaning of a norm text? Section IV has turned from the rule of interpretation to the reality of the practice. What are interpreters doing when they interpret? Examining the rule of interpretation places emphasis on the reasons that justify a claim to the law. Turning to the reality of interpretation exposes those reasons as rhetoric—​they aim to induce acceptance to make individual preferences prevail. Moving from the interpreter to her interlocutors: do others accept an interpretation because they are convinced by it, genuinely agree with it, or because they succumb to it? It will hardly ever be only one or the other. At the abstract level of theory, just as in the study of concrete instances of interpretative practice, it is necessary to account for both, the possibility of reason as well as the role of power and rhetoric. As significant parts of international law are made by way of interpretation, it necessary to keep a keen eye on the balance of reason, rhetoric, and power in that practice. Whereas power dynamics are mostly obvious in the practice of law-​making through the channel of sources, especially in treaty negotiations, they tend to be concealed in the practice of interpretation that pushes everyone to articulate interests and convictions, however idiosyncratic, in a universalizing and objectifying claim to the law.

Research Questions • The practice of interpretation in international law reflects the interests of individual actors and the constellation of power at any given time. What is the place, if any, of reason in this practice? How can the role of reason be studied in this argumentative practice of international law without overlooking the many faces of power, including the ways in which it shapes normative beliefs, if not reason? • The kinds of arguments that interpreters can practically use to support their claims about the meaning of international legal norms vary regarding who the interpreters are and in which context they argue. International courts and tribunals especially tend to interpret in a rather narrow, formalist way that might not articulate the core considerations that really carry a decision. How should the requirement be interpreted that international courts and tribunals state the reasons on which their decisions rest? What scope of reasons should they be allowed to use?

ingo venzke   421

Selected Bibliography Bianchi, Andrea, Daniel Peat, and Matthew Windsor, eds, Interpretation in International Law (Oxford: Oxford University Press, 2015). Fastenrath, Ulrich, ‘A Political Theory of Law:  Escaping the Aporia of the Debate on the Validity of Legal Argument in Public International Law’, in Ulrich Fastenrath, Rudolf Geiger, Daniel E. Khan, Andreas Paulus, Sabine von Schorlemer, and Christoph Wedder, eds, From Bilateralism to Community Interest. Essays in Honour of Bruno Simma (Oxford: Oxford University Press, 2011), 58–​78. Kennedy, David, ‘The Turn to Interpretation’, Southern California Law Review 58 (1985): 251–​76. Korhonen, Outi, ‘New International Law:  Silence, Defence or Deliverance?’, European Journal of International Law 7 (1996): 1–​28. Koskenniemi, Martti, ‘International Law and Hegemony:  A  Reconfiguration’, Cambridge Review of International Affairs 17 (2004): 197–​218. Venzke, Ingo, How Interpretation Makes International Law:  On Semantic Change and Normative Twists (Oxford: Oxford University Press, 2012). Zarbiyev, Fuad, Le discours interprétatif en droit international contemporain. Un essai critique (Brussels: Bruylant, 2015).

Chapter 20

SOURCES IN INTERPRETATION THEORIES AN INTERDEPENDENT RELATIONSHIP

Duncan B. Hollis

I. Introduction How do international lawyers perceive the relationship between interpretation and the sources of international law? For most, the relationship is a casual one. Lawyers recognize both concepts as critical to the international legal order, but emphasize their different functions and contents. Sources theories operate to delineate the bases of obligation—​what validates international law as ‘law’—​and locate where to find it, with most answers referencing Article 38 of the Statute of the International Court of Justice (ICJ).1 Interpretation, in contrast, is usually understood as a means 1   Article 38 (1) of the Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993). Although some (like Hugh Thirlway) label these what and where aspects as ‘formal’ and ‘material’ sources, I do not do so because others define those terms differently. Compare Hugh

duncan b. hollis   423 to give international law meaning via expository methods and techniques, most often those associated with the Vienna Convention on the Law of Treaties (VCLT).2 Where international law comes from and what it means are thus treated as related questions, but not otherwise terribly intertwined. On closer analysis, however, some lawyers recognize that the relationship between interpretation and sources is a dependent one. Interpretation cannot function without having something to interpret, and sources doctrine provides the interpreter with a sanctioned menu of ‘international law’ options.3 International legal interpretation thus involves assigning meaning to treaties and judicial opinions (as opposed to things like novels or paintings) precisely because the sources of international law sanction doing so. Moreover, by proffering criteria for a source—​such as the need for customary international law to reflect both State practice and opinio juris—​sources doctrine scaffolds how interpreters examine the contours of any specific rule. But is the relationship between interpretation and sources so one-​sided? If interpretation needs sources, might not the sources of international law need interpretation? In this chapter, I  explore the possibility of an interdependent relationship between these two concepts. On one level, my claim is straightforward:  international lawyers do not simply interpret from the sources of international law, they also source international law from acts of interpretation. Asking what the sources of international law are and why they bind its subjects are inherently interpretative questions.4 Of course, few international lawyers understand sources in interpretative terms. But as scholars move to unsettle the sources concept—​and, as this volume suggests, they are doing so in increasing numbers—​it becomes possible to see interpretation’s role in constructing what we mean by the sources of international law. On another level, however, the interdependence of interpretation and sources is—​like all relationships—​a complex one. Looking across a range of features for both concepts—​their (a)  doctrines; (b)  theories; and (c)  authorities—​we see multiple instances of mutual impact. Recognizing these linkages is significant in two respects. First, they have descriptive value. They offer additional external explanations for Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), p. 4 with Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–​85, 170, and Martti Koskenniemi, ‘Introduction’, in Koskenniemi, ed., Sources of International Law (Burlington: Ashgate, 2000), xi–​xxviii, xiii–​xv.   Articles 31–​2 of the Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331). 3   See ­chapter 19 by Ingo Venzke in this volume; Jean d’Aspremont, ‘The Multidimensional Process of Interpretation: Content-​Determination and Law-​Ascertainment Distinguished’, in Andrea Bianchi, Daniel Peat, and Matthew Windsor, eds, Interpretation in International Law (Oxford: Oxford University Press, 2015), 111–​32, 117. 4   D’Aspremont, ‘The Multidimensional Process’, p. 124; Duncan B. Hollis, ‘The Existential Function of Interpretation in International Law’, in Bianchi et al., eds, Interpretation, 78–​110, 86. 2

424    sources in interpretation theories each concept’s current construction beyond the self-​absorbed ontological inquiries with which each usually wrestles.5 Second, associating sources and interpretation creates instrumental opportunities. Efforts to settle (or unsettle) the construction of one concept can impact the other’s architecture. Calling for sources theory to shift from a consensual orientation to one founded on justice, for example, may devalue interpretative theories emphasizing text and authors while privileging those tied to teleology. Interpreters who operate in teleological terms then establish social ‘facts’ that reinforce the sources shift, as much as those who continue to define interpretation in textual or intentional terms undermine it. Taken together, such interactions suggest that the relationship between interpretation and sources is mutually constitutive. In this chapter, I introduce the interpretative process—​or what I call ‘existential interpretation’—​involved in delineating international law’s sources. I then explore the interdependent thesis by looking at how the doctrines, theories, and authorities of sources impact interpretation and vice versa. Doing so offers a new lens for understanding international law and its dynamic potential for change, opening new avenues for research on the mutually constitutive potential of interpretation and sources.

II.  Existential Interpretations of International Law’s Sources International legal interpretation is usually understood in expository terms—​a process for assigning meaning to international law.6 By emphasizing meaning, interpreters tend to focus on unpacking the appropriate way(s) to establish it. Interpretative theories offer no less than five potential objectives for the interpretative process, assigning meaning based on (i) the object of interpretation; (ii) the intentions of the object’s author(s); (iii) the object’s purpose; (iv) the interpreter; or (v) the community in which the interpretation occurs.7 5   I say ‘additional’ because interdependence does not equate to determinacy. Neither concept fully defines the other; each also depends on an external discipline—​e.g., jurisprudence for sources and hermeneutics for interpretation. 6  Daniel Peat and Matthew Windsor, ‘Playing the Game of Interpretation:  On Meaning and Metaphor in International Law’, in Bianchi et al., eds, Interpretation, 3–​33, 3; Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (Oxford:  Oxford University Press, 2008), p. 2. 7   Peat and Windsor, ‘Playing the Game’, p. 9 (identifying four ‘sources of meaning’ for interpretation: namely the authors, the interpreted object, the interpreter, and the relevant society); see c­ hapter 19

duncan b. hollis   425 Today, all five approaches have adherents in international law. The VCLT famously accommodates the first three theories simultaneously in a ‘crucible’ approach.8 Those who believe meaning is ‘found’ in the interpreted object—​the treaty itself—​ can pursue a textual approach based on Article 31’s direction that a ‘treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context . . . ’ .9 Article 32, in contrast, supports finding a treaty’s meaning within the authors’ intentions via the negotiating history. Although Article 32 suggests that the travaux préparatoires may only confirm textual efforts or supply meaning when those efforts fail, such caveats have done little to bar treaty interpretations on subjective terms.10 Article 31’s references to interpreting the treaty ‘in light of its object and purpose’ and ‘any relevant rules of international law’ also afford ample grounds for more teleological efforts.11 Meanwhile, hermeneutics and legal philosophy—​most notably Ronald Dworkin’s work—​emphasize interpreters, noting how their biases and preconceptions create meaning beyond the interpreted object or its authors’ views.12 Finally, contributions by Stanley Fish, Jürgen Habermas, and Martti Koskenniemi emphasize (albeit very differently) how interpretation derives from arguments and understandings among a particular group of actors, or what Fish terms ‘interpretative communities’.13 For all their differences, however, these expository theories share a common presumption—​the existence of some international law in need of interpretation. by Ingo Venzke in this volume (distinguishing purposive approaches to interpretation, most notably those advocated by Myres S. McDougal and Ronald Dworkin).   Reports of the International Law Commission on the second part of its seventeenth session and on its eighteenth session, YILC (1966) vol. II, p. 220, para. 8. 9   Article 31 (1)  (a) of the VCLT; Orakhelashvili, Interpretation, p.  288; Andrea Bianchi, ‘Textual Interpretation and (International) Law Reading; The Myth of (In)determinacy and the Genealogy of Meaning’, in Pieter H. F. Bekker, Rudolf Dolzer, and Michael Waibel, eds, Making Transnational Law Work in the Global Economy:  Essays in Honour of Detlev Vagts (Cambridge:  Cambridge University Press, 2010), 34–​55, 34 (textual determinacy theory ‘still the prevailing paradigm’). 10   See Richard K. Gardiner, Treaty Interpretation, 2nd edn (Oxford: Oxford University Press, 2008), pp. 391–​3. Nor is it clear that the International Law Commission (ILC) meant to limit reliance on subsidiary work. Julian D. Mortenson, ‘The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History?’, American Journal of International Law 107 (2013): 780–​822, 781. 11  Gardiner, Treaty Interpretation, p. 189. Although Myers McDougal famously doubted the VCLT’s capacity to accommodate a purposive approach, Gardiner has shown that McDougal’s fears were unfounded. ibid., pp. 303–​50; see also Myers S. McDougal, Harold D. Lasswell, and James C. Miller, The Interpretation of Agreements and World Public Order (New Haven: Yale University Press, 1967). 12   See ­chapter 19 by Ingo Venzke in this volume (regarding hermeneutics). Dworkin sought to establish guidelines to ensure the ‘integrity’ of the interpreter’s assignment of meaning. Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), pp. 243 ff.; see also Ronald Dworkin, ‘A New Philosophy for International Law’, Philosophy & Public Affairs 41 (2013): 2–​30. 13   Stanley Fish, Is There a Text in This Class? The Authority of Interpretative Communities (Cambridge: Harvard University Press, 1980); Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: MIT Press, 1996), pp. 222–​37; Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) (reissue with a new epilogue), pp. 597–​9. 8

426    sources in interpretation theories This is certainly true for those who expect interpretation to ‘find’ meaning in international law through texts or original intentions.14 But it is equally true for those who view interpretation as an act of creation, whether by an interpreter or some larger community.15 Painters need canvases, potters need clay, and legal interpreters need law to do their work. Dworkin’s interpretative theory makes this point explicitly, identifying a ‘preinterpretative stage’ in which an interpretative community identifies a shared set of convictions about ‘what counts as part of the practice in order to define the raw data’.16 Thus, all international legal interpretation depends on having some accepted set of international legal objects from which the assignment of meaning proceeds.17 Identifying these legal objects—​and explaining their validity as ‘law’—​is the primary function of sources doctrine. Whatever constitutes a source of international law constitutes an appropriate object of interpretation. Thus, Article 38’s sources triad—​treaties, custom, and general principles—​provides a foundation for the majority of international legal interpretation. Ambiguities or differences over the meaning of these primary sources spawn further interpretative inquiries of other objects Article 38 labels as ‘subsidiary’:  judicial opinions and scholarship.18 The need to understand the meaning and operation of the sources of international law is even at work in topics where Article 38 is silent, such as State responsibility, since an internationally unlawful act’s consequences depend on knowing what is lawful in the first place.19 In other words, international legal interpretation may generally be framed as either directly or indirectly dependent on the sources of international law. 14   See Anthea Roberts, ‘Power and Persuasion in Investment Treaty Interpretation:  The Dual Role of States’, American Journal of International Law 104 (2010): 179–​225, 188. Jurists especially may invoke objective interpretative theories. Richard A. Posner, ‘The Incoherence of Antonin Scalia’, New Republic (24 August 2012), , accessed 29 August 2016 (‘Judges like to say that all they do when they interpret . . . is apply, to the facts of the particular case, law that has been given to them. They do not make law.’). 15  See Koskenniemi, From Apology to Utopia, pp.  531–​2. Positivists, such as H.  L. A.  Hart and Joseph Raz in particular emphasize interpreting those objects identified as law even as they acknowledge an innovative capacity for assigning them meaning. H. L.  A. Hart, The Concept of Law, 2nd edn (Oxford:  Clarendon Press, 1994), pp. 204–​5; Joseph Raz, Between Authority and Interpretation (Oxford: Oxford University Press, 2009), p. 224. 16  Dworkin, Law’s Empire, pp. 65–​7. 17   Conversely, interpreting objects not accepted as international law necessitates invoking a different field of law. See Benedict Kingsbury, Nico Kirsch, and Richard B. Stewart, ‘The Emergence of Global Administrative Law’, Law and Contemporary Problems 68 (2005): 1–​47, 5 (employing the ‘global’ label because the study emphasized a ‘large array of informal institutional arrangements . . . and normative sources, that are not encompassed within standard conceptions of “international law” ’.). 18   Article 38 (1) (d) of the ICJ Statute. 19   See Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-​Third Session, UN GAOR, 56th Session Supp. No. 10, UN Doc. A/​56/​10 (2001).

duncan b. hollis   427 But interpretation’s dependence on sources is not a one-​way street. How are the sources of international law identified? They emerge from an interpretative process that I call ‘existential interpretation’.20 Amidst the expository function of interpretative processes, existential interpretations examine a specific type of meaning, namely whether the object of interpretation ‘exists’ or has validity given the context for which interpretation is sought. Existential interpretations are distinguished by their binary character, asking whether (or not) the interpreted object exists within the corpus of international law. Existential interpretations are visible across international legal discourse, including which particular authorities, evidence, and rules exist for purposes of international law.21 A recent example involves claims that customary international law includes an ‘unwilling or unable’ test for using self-​defence against non-​State actors.22 Existential interpretations may also operate destructively, denying the existence of some rule, as the ICJ did in rejecting a complete ban on using nuclear weapons.23 In either case, the organizing interpretative purpose remains the same—​asking if something exists for the purposes of international law. The same existential reasoning operates in the sources context.24 The validity or existence of international law’s sources depends on an existential interpretation. Jean d’Aspremont, for example, differentiates (i) the process of giving content to international law (‘content-​determination’), which is usually associated with interpretation; from (ii) the process of discerning the law itself (what he calls ‘law-ascertainment’). In doing so, d’Aspremont readily acknowledges that law-ascertainment is an interpretative process, albeit one for which he invokes different interpretative guidelines.25 Dworkin similarly conceded that, despite its ‘pre-​interpretative’ moniker, identifying the sources or objects of legal interpretation is itself an interpretative exercise.26 Existential interpretations of international law’s sources are most visible in attempts to identify sources beyond Article 38’s list. The Nuclear Tests opinion offers an example, as the ICJ (arguably) interpreted into existence a new source of international law—​unilateral declarations.27 In contrast, existential interpretations for 21   For more, see Hollis, ‘The Existential Function’.   ibid., pp. 87–​97.   See Ashley Deeks, ‘ “Unwilling or Unable”: Toward a Normative Framework for Extraterritorial Self-​Defense’, Virginia Journal of International Law 52 (2012): 483–​550 (arguing test exists, permitting victim States to use self-​defence against non-​State actors where the State from which the non-​State actor operates is ‘unwilling or unable’ to discipline their behaviour). The existence of such a rule remains contested. See Monica Hakimi, ‘Defensive Force against Non-​State Actors: The State of Play’, International Law Studies 91 (2015): 1–​31, 25–​6; Kevin J. Heller, ‘The Absence of Practice Supporting the “Unwilling or Unable” Test’, Opinio Juris (17 February 2015). 23   Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 266, para. 105 (2) (E). 24   Hollis, ‘The Existential Function’, pp. 97–​101. 25 26   D’Aspremont, ‘The Multidimensional Process’, p. 117.  Dworkin, Law’s Empire, p. 66. 27   Nuclear Tests (Australia/​New Zealand v France) (Judgment) [1974] ICJ Rep 253, 267–​8, paras 43–​50; see also ILC, ‘Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with Commentaries Thereto’, in Report on the work of its fifty-​eighth session 20 22

428    sources in interpretation theories international law’s basic sources—​treaties, custom, general principles—​are rare given Article 38’s canonical status.28 Even without an express existential interpretation, however, all international legal interpretations have some existential effects. Expository interpretations necessarily involve existential interpretations even if the latter remain hidden—​ lying in background assumptions or convictions and revealed only by implication. For example, few (if any) interpreters include in interpretations of Article 2 (4) of the UN Charter an analysis of the Charter’s status as a treaty, let  alone explain why treaties are sources of international law.29 Nonetheless, the very process of ascertaining what Article 2 (4) means necessarily claims for the Charter the status of a valid or ‘existing’ object of interpretation, which, in turn, affirms the role of treaties as a source of international law. Thus, the very process of exposition validates the interpreted object’s existence, including the source(s) for that object’s validity.30 Whether they are express or lurking in the background, existential interpretations of international law’s sources are still interpretative acts. As such, they implicate the same debates over proper interpretative methods (e.g., textual, subjective, teleological) as international legal interpretation more generally. To further complicate matters, nothing requires interpreters to adopt a single, unifying approach. An interpreter can adopt the same method (e.g., focusing on States’ intentions to determine both which sources of international law exist and what their contents mean). But an interpreter might also adopt different methods for different contexts (e.g., employing a teleological method, to ascertain the existence of treaties as a source of international law, a subjective method to explicate a specific treaty’s existence, and an interpretative community framework for giving meaning to its terms). In either case, the method chosen for an existential interpretation of sources can impact their assigned meanings. As a result, the relationship between sources and interpretation is clearly bi-​directional.

(1 May–​9 June and 3 July–​11 August 2006), UN Doc. A/​61/​10, p.  370, Guiding Principle 1; Antonio Cassese, International Law, 2nd edn (Oxford: Oxford University Press, 2005), p. 184. 28   See Jean d’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’, British Yearbook of International Law 84 (2013): 103–​30, 111. 29   Charter of the United Nations (UN) (San Francisco, 26 June 1945, 1 UNTS 16). 30   Beyond its existential aspects, exposition can serve other functions as well, including inventive (creating new variations of the law) or relational ones (situating an international law rule among, above, or below other relevant rules of international law). Hollis, ‘The Existential Function’, pp. 84–​6.

duncan b. hollis   429

III.  The Range of Interdependence between Sources and Interpretation Accepting the interdependence of sources and interpretation raises two key questions. First, how has this relationship worked in the current international legal order? We can see evidence of mutual impact across a range of both concepts’ key features, including their (a) doctrines; (b) theoretical foundations; and (c) authorities. Of course, in all three contexts, there are ambiguities and significantly divergent views. Such differences suggest a second, and perhaps more important, set of questions—​what are the consequences of changing how we construct one concept’s doctrine, theory, or authorities for the other?

1. Doctrinal Interdependence a. Constructing International Legal Interpretation from the Sources of International Law Sources doctrine begins (and, for some, ends) with Article 38.31 Its construction of primary (treaties, custom, general principles) and secondary (judicial opinions, scholarship) sources may explain several features of international legal interpretation. For starters, consider how Article 38’s reification of treaties pairs with international legal interpretation’s own treaty focus, including the VCLT rules. The inclusion of treaties ‘whether general or particular, establishing rules expressly recognized by the Contracting States’ in the original draft of Article 38 (then 35) for the Permanent Court of International Justice (PCIJ) was apparently ‘straightforward’, an unsurprising choice for an adjudicatory body looking to resolve disputes between specific parties.32 But transforming treaties into a general source of ‘law’ was neither inevitable nor without conceptual difficulties. As Sir Gerald Fitzmaurice famously noted, treaties are sources of obligations for specific parties, not laws of general application.33  Thirlway, Sources, p.  6; see also c­ hapter  12 by Mark Weston Janis in this volume (Article 38 is ‘close to being a universal norm’); but see Robert Y. Jennings, ‘What is International Law and How Do We Tell It When We See It’, Schweitzerisches Jahrbuch für internationales Recht (1981):  59–​88, 60 (questioning the sufficiency of Article 38’s list and proposing additional candidates); Richard R. Baxter, ‘International Law in “Her Infinite Variety” ’, International and Comparative Law Quarterly 29 (1980): 549–​66. 32   See ­chapter 8 by Malgosia Fitzmaurice in this volume. 33   Gerald G. Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’, Symbolae Verzijl (1958): 153-​76, 157–​8. Fitzmaurice recognized that treaties could codify law, but denied such cases made the treaty itself law. Accord Ian Brownlie, Principles of Public International Law, 7th 31

430    sources in interpretation theories Nonetheless, adopting Article 38 for the sources of international law assigned treaties a sources’ status that contributed to their rapid expansion as an instrument of international law. It served as a catalyst for the twentieth-​century’s massive proliferation of treaty-​making, a practice that increasingly included treaties framed in legislative terms (traités-​loi) alongside the more traditional contractual iterations (traités-​contrat).34 Doing so also mandated interpretative attention. Designating treaties as a source of international law permitted—​if not required—​increased attention to divining rules for their interpretation, a decades-​long project that culminated in Articles 31–​32 of the VCLT.35 Today, international legal interpretative doctrine remains firmly rooted in the law of treaties, even as scholars push for a wider lens.36 Article 38’s construction of other sources actually reinforces the explicit association of interpretation and treaties. Reading Article 38 to assign two elements to custom—​State practice and opinio juris—​may not follow from the text itself (nor those who drafted it), but it is the dominant paradigm.37 It is, moreover, a formula edn (Oxford: Oxford University Press, 2008), p. 513; Thirlway, Sources, pp. 32–​3 (noting Mendelson’s different view). 34  Shabtai Rosenne, Developments in the Law of Treaties 1945–​ 1986 (Cambridge:  Cambridge University Press, 1989), pp. 182–​3; Besson, ‘Theorizing’, p.  169 (noting fading distinction between general and non-​general treaty-​law); Gerald G. Fitzmaurice, ‘Second Report on the Law of Treaties’, YILC (1957) Vol. II, p. 31. I say ‘a’ catalyst to avoid over-​claiming. I am not saying Article 38 launched multilateral, legislative treaty-​making; traités-​loi pre-​dated the 1920 negotiations that led to Article 38. See e.g., Hague Convention II with Respect to the Laws and Customs of War by Land and its Annex: Regulations Respecting the Laws and Customs of War on Land (The Hague, 29 July 1899, 32 Stat. 1803). Still, it is hard to ignore treaty-​making’s rise so soon after it achieved primary source status in international law. 35   Hugo Grotius and Emer de Vattel long ago linked interpretation to treaties, so we cannot say their listing in Article 38 caused the association with interpretation. See e.g., Duncan B. Hollis, ‘Interpretation’, in Jean d’Aspremont and Sahib Singh, eds, Fundamental Concepts for International Law (Cheltenham: Edward Elgar, forthcoming 2017). Still, like treaty proliferation, the treaty/​sources association coincided with a period of rising attention to treaty interpretation. See e.g., ‘Harvard Draft Convention on the Law of Treaties’, American Journal of International Law (Suppl.) 29 (1935): 653–​1204. 36   Most interpretation scholarship in international law emphasizes treaties with little-​to-​no attention to other objects. See e.g., Gardiner, Treaty Interpretation; Anthony Aust, Modern Treaty Law and Practice, 3rd edn (Cambridge: Cambridge University Press, 2013), ch. 13; Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford: Oxford University Press, 2012); Malgosia Fitzmaurice, Olufemi Elias, and Panos Merkouris, eds, Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years On (Leiden: Martinus Nijhoff, 2010); Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford: Oxford University Press, 2009); Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn (Manchester:  Manchester University Press, 1984), ch. 5; Paul Reuter, Introduction to the Law of Treaties, trans. José Mico and Peter Haggenmacher (London:  Pinter, 1989), paras 138–​48. For notable exceptions, see Bianchi et  al., eds, Interpretation; Orakhelashvili, Interpretation. 37   See ­chapter 8 by Malgosia Fitzmaurice in this volume; Jean d’Aspremont, ‘The Decay of Modern Customary International Law in Spite of Scholarly Heroism’, Global Community Yearbook of International Law & Jurisprudence 2015 (2016), , accessed 29 August 2016; ILC, Second Report on Identification of Customary International Law by Michael

duncan b. hollis   431 notorious for exposing questions of identification—​discerning whether (or not) custom exists.38 Of course, the process of ascertaining custom’s existence is an interpretative process—​a prime example of the existential interpretation phenomenon discussed earlier. But for international lawyers who envision interpretation solely in expository terms, such discourse may be deemed to lie outside the interpretative field. Indeed, only recently has interpretative scholarship even begun to ask about the appropriate processes for assigning meaning to existing customary rules.39 A similar logic preoccupies discourse on general principles of law. Almost all attention centres on defining the concept—​as an auxiliary gap-​filler, as a natural law vehicle, or as a repository for fundamental ‘meta’ legal principles—​which is used, at most, in a ‘rather loose, imprecise and inconsistent manner’.40 Judicial opinions, in contrast, are neither hard to identify nor overlooked in the VCLT rules or interpretative doctrine more generally.41 Interestingly, however, international lawyers rarely inquire about the processes by which they interpret judicial opinions; the focus is on how well judges interpret treaties, identify custom, invoke general principles, etc. As such, international law offers little doctrine on interpreting judicial opinions themselves. Article 38 helps explain this state of affairs by labelling these opinions a ‘subsidiary’ source—​i.e. a vehicle for interpretation, rather than its object. Taken together, therefore, issues of identification for custom and general principles alongside the subsidiary status of judicial opinions (not to mention legal scholarship)42 have left treaties in the pole position for setting the terms of international law’s interpretative doctrines.43 For those who envision sources doctrine to extend beyond Article 38, however, additional candidates may reconstruct interpretation in non-​treaty terms. In Wood, Special Rapporteur, 22 May 2014, UN Doc. A/​CN.4/​672, para. 28; David J. Bederman, Custom as a Source of Law (Cambridge: Cambridge University Press, 2010), pp. 141–​3. 38   The ILC, for example, continues to focus on identifying customary international law. ILC, Fourth Report on Identification of Customary International Law by Michael Wood, Special Rapporteur, 8 March 2016, UN Doc. A/​CN/​.4/​695. 39   Panos Merkouris, ‘Interpreting the Customary Rules on Interpretation’ (2016), , accessed 29 August 2016. 40   See ­chapter 8 by Malgosia Fitzmaurice in this volume; Rüdiger Wolfrum, ‘Sources of International Law’, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2011), , accessed 1 June 2017. 41   Indeed, they are a regular part of legal practice. See Harlan Grant Cohen, ‘Theorizing Precedent in International Law’, in Bianchi et al., eds, Interpretation, 268–​89, 271. 42   Today, scholarship is treated as a tool for assigning meaning to other objects rather than as an object of interpretation itself. For a discussion of nineteenth-​century views on scholarship as a primary source of international law, see ­chapter 5 by Miloš Vec and ­chapter 13 by Robert Kolb in this volume. 43   None of which should suggest that the existence of treaties is a given. See Duncan B. Hollis, ‘Defining Treaties’, in Hollis, ed., The Oxford Guide to Treaties (Oxford: Oxford University Press, 2012), 11–​45; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) [1994] ICJ Rep 112, 121–​2, para. 27; Aegean Sea Continental Shelf (Greece v Turkey) (Judgment) [1978] ICJ Rep 3, 43. Unlike custom and general principles, however, treaties’ existential issues usually lie in the background, calling attention to the expository issues that remain.

432    sources in interpretation theories recognizing the legal effects of unilateral declarations, for example, the International Law Commission (ILC) suggested a more restrictive framework than the VCLT provides: in ‘cases of doubt as to the scope of obligations resulting from such a declaration, such obligations must be interpreted in a restrictive manner’.44 Interestingly, the ILC claimed this approach fell within the VCLT’s ambit—​suggesting a strong path dependency for treaty-​centred doctrine—​despite the difficulty of reconciling the VCLT’s contents with a restrictive method.45 Interpretation doctrine may also be recast by international organizations (IOs). For some, the extant treaty doctrine is sufficient. The VCLT acknowledges that IO constitutive instruments can trump its rules, including presumably those on interpretation.46 Where IOs take decisions binding the IO or its Member States,47 treaty interpretation rules may both accord those decisions validity (on the theory that Member States agreed in the treaty constituting the IO that they would be so bound) and delineate their contents.48 For other international lawyers, however, IOs are a stand-​alone source of international law.49 That status justifies extending to IO treaties and their decisions different interpretative methods, most often those cast as ‘constitutional’, prioritizing teleological analysis over the textual or subjective objectives that the VCLT also includes in its crucible method.50 EU regulations, for example, are widely interpreted as having a legislative character independent of treaty law and practice.51   ILC, ‘Guiding Principles Applicable to Unilateral Declarations of States’, p. 377, Guiding Principle 7.   The ILC’s Commentary suggests that this principle is analogous to Article 31 of the VCLT. But that article is not overtly restrictive and operates in concert with other rules (e.g., Art. 32). ILC, ‘Guiding Principles Applicable to Unilateral Declarations of States’, p. 377, Guiding Principle 7, Commentary; Luigi Crema, ‘Disappearance and New Sightings of Restrictive Interpretation(s)’, European Journal of International Law 21 (2010): 681–​700. 46   Article 5 of the VCLT. 47   Most IO functions are non-​legal—​serving as fora for discussion, expertise, information gathering, monitoring, negotiations, etc.—​but some decisions can legally bind Member States. See e.g., Arts 37, 54 (1), 90 of the Convention on International Civil Aviation (Chicago Convention) (Chicago, 4 April 1947, 15 UNTS 295); Arts 21–​2 of the Constitution of the World Health Organization (WHO Constitution) (New York, 22 July 1946, 14 UNTS 185). 48   See e.g., Malgosia Fitzmaurice, ‘Modifications to the Principles of Consent in Relation to Certain Treaty Obligations’, Austrian Review of International and European Law (1997):  275–​317, 316–​17; Gennady M. Danilenko, Law-​Making in the International Community (Dordrecht: Martinus Nijhoff, 1993), p. 192. 49   See Catherine Brölmann, ‘Specialized Rules of Treaty Interpretation: International Organizations’, in Hollis, ed., Treaties, 507–​ 24, 518–​ 19 (discussing both views); Vladimir D. Degan, Sources of International Law (Dordrecht:  Martinus Nijhoff, 1997), p.  6; Christian Tomuschat, Obligations Arising for States Without or Against their Will, vol. 241, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1993), 1–​370, 195, 328. 50  See e.g., Jan Klabbers, Anne Peters, and Geir Ulfstein, eds, The Constitutionalization of International Law (Oxford: Oxford University Press, 2009), p. 89. 51  See e.g., Brölmann, ‘Specialized Rules of Treaty Interpretation’, p.  519; Peter J. Kuijper, ‘The European Courts and the Law of Treaties: The Continuing Story’, in Enzo Canizzaro, ed., The Law of Treaties beyond the Vienna Convention (Oxford: Oxford University Press, 2011), 256–​78, 268–​270. 44 45

duncan b. hollis   433 Whether that example is sui generis depends on what list of international law’s sources lawyers use.52 More radically, the concept(s) of soft law may recast the scope, functions, and processes of international legal interpretation.53 Unlike IO treaties or decisions, soft law adds new objects for interpretation, namely ‘legally non-​binding norms’ produced by State and non-​State actors, such as G7 Declarations and industry codes of conduct.54 Moreover, as a functional matter, soft law emphasizes compliance and effectiveness with respect to ‘norms’, thereby de-​privileging the importance of other international law ‘sources’ and, with them, questions of legal interpretation. For soft law, interpretation adopts a pluralist character, serving the interpreters’ ends unlike the object-​centred VCLT doctrine.55 Of course, soft law’s impact on interpretation remains highly contested, with (cogent) arguments that it is a redundant or unsound concept.56

b. Constructing Sources Doctrine from International Legal Interpretation In section II above, I explained how any specific iteration of sources doctrine is a function of (existential) interpretation. As such, different interpretations may generate different images of international law’s sources. The canonical status accorded to Article 38, for example, appears to proceed from an objective—​if not an explicitly textual—​method of interpretation. Article 38 emerged at a time when interpreters still ascribed to the view that international law existed to be ‘found’. As Ingo Venzke’s chapter details, this view may no longer be intellectually sustainable.57 Nonetheless, that approach helps explain why, having ‘codified’ the list of sources, they became a default, common denominator for international lawyers.58 Moreover, 52   Consider, e.g., varying interpretations of the Doha Declaration, including (a) existential denials of its legal validity; (b) applications of the VCLT to its terms; and (c) claims that it is a source of law directly. James T. Gathii, ‘The Legal Status of the Doha Declaration on TRIPS and Public Health under the Vienna Convention on the Law of Treaties’, Harvard Journal of Law & Technology 15 (2002): 291–​ 317, 299–​316; Stephen Charnovitz, ‘The Legal Status of the Doha Declaration’, Journal of International Economic Law 5 (2002): 207-​11, 211. 53   I understand soft law to recast the binary distinction between ‘law’ and ‘non-​law’ as a continuum reflecting degrees of bindingness, ranging from soft to hard. Dinah Shelton, ‘Law, Non-​Law and the Problem of “Soft Law” ’, in Shelton, ed., Commitment and Compliance: The Role of Non-​Binding Norms in the International Legal System (Oxford: Oxford University Press, 2000), 1–​20. For more on soft law’s interpretative impact, see Hollis, ‘The Existential Function’, pp. 99–​100. 54   Jean d’Aspremont, ‘Softness in International Law: A Self-​Serving Quest for New Legal Materials’, European Journal of International Law 19 (2009): 897–​910. 55   Christine Chinkin, ‘Normative Development in the International Legal System’, in Shelton, ed., Commitment and Compliance, 21–​43, 30–​1 (describing soft law’s potential legal functions). 56  See Jan Klabbers, ‘The Redundancy of Soft Law’, Nordic Journal of International Law 65 (1996): 167–​82, 181; Kal Raustiala, ‘Form and Substance in International Agreements’, American Journal of International Law 99 (2005): 581–​614, 592. 57   See ­chapter 19 by Ingo Venzke in this volume.    58  See Koskenniemi, ‘Introduction’, pp. xii–​iii.

434    sources in interpretation theories given the association of interpretation with treaties, it bears noting how the sources were (finally) articulated in a treaty text.59 In other words, we identify the sources of international law—​first and foremost—​textually, taking the words used at face value. More recently, the VCLT’s fingerprints appear on modern interpretations of international law’s sources. To confirm the meaning of Article 38, international lawyers have excavated its preparatory work to alter whether and how we understand it as the authoritative sources repository. D’Aspremont, for example, cites this work to revise the meaning of customary international law, specifically undermining claims that custom’s elements of State practice and opinio juris owe their genealogy to Article 38.60 The VCLT’s directive to accommodate ‘other sources of international law’, ‘subsequent practice’, and ‘subsequent agreements’ can generate interpretations of the treaty text (Article 38) focused on a wider and more dynamic universe of sources than that text or its authors intended.61 A  similar outcome may arise for those inclined to teleology, recasting sources in terms of the purposes of international law. For example, in light of the ‘fundamental importance of the human rights component of a just world order’, Bruno Simma and Philipp Alston famously suggested reinterpreting general principles of law to comprise international human rights in lieu of their more standard classification as part of custom.62 A teleological objective may also lead to existential interpretations of sources beyond Article 38. Recall the teleological rationale on which the existence of the implied powers doctrine rests, a rationale that, in turn, may facilitate IO interpretations beyond the VCLT’s strict confines.63 The same interpretative objective may lead to more radical departures from the status quo. Samantha Besson, for example, arrives at her sources theory via a combination of teleological64 and interpretative community frameworks.65 Of course, any existential interpretations of sources will not turn solely on the chosen objective. The logic employed can also vary, most notably between inductive 59   On nineteenth-​century conceptions of sources, compare in this volume c­ hapter 5 by Miloš Vec (arguing against any universal views); ­chapter 12 by Mark Weston Janis (characterizing Art. 38 as a ‘paradigm shift’); and ­chapter 13 by Robert Kolb (suggesting a ‘larger conception of the sources of law’ prevailed). 60   D’Aspremont, ‘The Decay’, pp. 8–​13. 61   Article 31 of the VCLT; see ­chapter 48 by Donald H. Regan in this volume (reviewing VCLT Article 31 (3) (c)’s reference to ‘other sources of international law’). For a discussion of subsequent practice and agreements, see Orakhelashvili, Interpretation, p. 291; Georg Nolte, ed., Treaties and Subsequent Practice (Oxford: Oxford University Press, 2013). 62   Bruno Simma and Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens and General Principles’, Australian Yearbook of International Law 12 (1992): 82–​108, 87. 63  See Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 182. 64   Besson, ‘Theorizing’, p. 185 (citing the rule of law for sources’ legality, global justice for their norm­ ativity, and multi-​level and pluralist democratic processes for their legitimacy). 65   See ibid. (‘sources of international law are the process of self-​constitution and constant reshaping of that [pluralist international] community’).

duncan b. hollis   435 and deductive approaches. That choice may significantly impact the very concept of sources—​is meaning constructed in Koskenniemi’s words as an apology from State practice or to perfect some Utopian international law Disneyland.66 To the extent both options are available, critical views may claim that sources—​like the rest of international law—​constitute a realm of substantive indeterminacy.67 More practically, the consequences of these choices explain the continued debates over whether to interpret customary international law according to an inductive ‘traditional’ method versus a deductive ‘modern’ approach.68 Taken together, sources and interpretative doctrines reveal an interdependent dialogue. Different iterations of sources doctrine—​whether in Article 38 or beyond—​generate different images of interpretation. And different interpretative methods reveal sources doctrine in different guises. The foregoing survey thus elaborates debates over sources and interpretations not just on their own terms, but also as the product of mutual association. Seeing interpretation follow sources and sources follow interpretation suggests, moreover, that future shifts in one doctrine may, in turn, construct new versions of the other.

2. The Impact of Sources Theory on Interpretation and Interpretative Theory on Sources For all the attention devoted to Article 38 by international lawyers, its concept of sources remains incomplete without a theory for why it (or some other listing) determines what constitutes ‘international law’. And just as sources doctrine impacts interpretation, so too does the theory behind international law’s basis (or bases) of obligation. Among the many candidates, two warrant special mention: consent and justice.69 For starters, sources theory is ‘primarily associated with legal positivism of which the central tenet is that international law derives from the consent of the States that are its subjects’.70 Adherents to the positivist school thus identify State consent   See generally Koskenniemi, From Apology to Utopia.   ibid. Mario Prost emphasized alternative unifying frames remain. Mario Prost, ‘All Shouting the Same Slogans: International Law’s Unities and the Politics of Fragmentation’, Finnish Yearbook of International Law 17 (2006): 131–​60. 68   Roberts, ‘Power and Persuasion’, p. 757; Jörg Kammerhofer, ‘Uncertainty in the Formal Sources of International Law:  Customary International Law and Some of its Problems’, European Journal of International Law 15 (2004): 523–​53, 525; see also Hollis, ‘The Existential Function’, p. 96 (comparing inductive and deductive logics for general principles). 69   Oscar Schachter, ‘Towards a Theory of International Obligation’, in Stephen M. Schwebel, ed., The Effectiveness of International Decisions (Dobbs Ferry:  Oceana, 1971), 9–​31, 9–​10 (reviewing multiple claimed bases of international legal obligation). 70  Thirlway, Sources, p. 10. 66 67

436    sources in interpretation theories as the defining characteristic for identifying international law’s sources. Doing so inevitably prioritizes interpretation’s search for meaning in terms of State consent as well. But this does not necessarily mean an exclusive emphasis on subjective interpretation in matters of exposition. As Arnold McNair argued, one could favour a textual approach to best further an interpretative theory based on identifying State consent.71 And although a teleological method might, at first glance, imply a ready willingness to put the interpreter’s views ahead of the authors’, that is not a foregone conclusion, particularly where States may have consented to such an approach, whether explicitly in the text or by implication in preparatory work. Besson’s work in particular offers a positivist theory of sources with an avowedly normative emphasis on achieving legality, normativity, and legitimacy.72 As noted above, a plurality of consensual theories is also possible, with separate theories for interpreting the existence of international law and for divining its contents. Nonetheless, a consensual theory of international law does cabin interpretation theories in one important respect—​it prioritizes those that centre on assigning meaning via the object of interpretation and its authors rather than the interpreter or some interpretative community. In recent years, the consensual theory of sources has been regularly critiqued as incomplete or incoherent.73 In its place, various theories have supplanted some form of justice, whether rooted in natural law or a policy-​oriented methodology.74 Like consensual theories, justice-​oriented theories of sources have natural extensions into the interpretative context. This does not necessarily mean dispensing with textual or subjective approaches entirely; one could, for example, adopt a notion of justice centred on promise-​keeping, thereby leaving ample room for these traditional interpretative theories. Nonetheless, by shifting interpretation’s chief reference point to moral (or policy-​oriented) principles, it necessarily de-​emphasizes textual or subjective methods that generate meaning inconsistent (or in competition with) those principles. A justice-​oriented theory of sources may be most attracted to a justice-​based theory of interpretation, whether purposive (e.g., teleological) or aspiring to achieve justice itself (e.g., Dworkin’s legal interpretativism).75 And if justice—​like art—​lies in ‘the eye of the beholder’, room becomes available for more overtly interpreter-​based   Arnold McNair, The Law of Treaties, 2nd edn (Oxford: Oxford University Press, 1961), p. 365.   Besson, ‘Theorizing’, p. 185. 73   For example, consent cannot justify treaties as a source of international law without circular logic, thus requiring an alternative theory for pacta sunt servanda. Thomas M. Franck, The Power of Legitimacy among Nations (Oxford: Oxford University Press, 1990), p. 187. 74  See e.g., Allen Buchanan, Justice, Legitimacy & Self-​Determination:  A  Moral Foundation for International Law (Oxford:  Oxford University Press, 2004); Fitzmaurice, ‘Some Problems’, p.  169 (theorizing natural law as a source of international law); W. Michael Reisman, ‘International Law-​ Making: A Process of Communication’, ASIL Proceedings 75 (1981): 101–​20 (describing policy-​oriented ‘New Haven School’). 75  Dworkin, Law’s Empire. 71

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duncan b. hollis   437 theories of justice like hermeneutics, hegemonic arguments, or the eyes of an entire interpretative community. The methodological emphasis of interpretation may also shift in the face of justice theories; their orientation around principles offers more room for deductive reasoning than inductive efforts that build legal meaning from State behaviour. Thus, a justice-​based theory of sources does not dispense with any specific interpretative theory, but it certainly prioritizes them differently than a theory oriented around State consent. Over time, sources theory has oscillated between these ontological poles of consent/​positivism and justice/​naturalism. For many international lawyers, sources theory ends up somewhere in the middle, with different theories justifying different sources—​and thus different interpretative theories—​in a pluralist international legal order.76 Others have moved to dispense with sources theory altogether, emphasizing instead questions of compliance or effectiveness.77 As with doctrinal interdependence, the relationship between theories may run both ways. Interpretative theories that orient around the object of interpretation (textual, subjective, teleological) are internal to international law. As such, they tend to associate the purpose of interpretation with the purpose of law, making it difficult to discern the theory’s true home (i.e. are the sources of international law determined by State consent or is State consent the vehicle for interpreting its sources?). Other interpretative theories are external to international law and thus may have a more visible impact on its sources. D’Aspremont, for example, invokes Fish’s ‘interpretative community’ theory to articulate a ‘social theory of sources’.78 He argues that identification of international law’s bases of obligation and their location are inherently dynamic, the result of an on-​going process of interpretation by those accepted as having authority to apply the law (the law-​appliers).79 In other words, his sources theory follows from his adoption of Fish’s (external) theory of interpretation. At the same time, however, d’Aspremont is careful not to dispense with the need for sources theory, but rather emphasizes how it may be constructed differently through his social theory of interpretation.80 This contrasts with the views of Venzke, whose theory of interpretation as semantic authority might be read to dispense with sources theory entirely in favour of law-​making as ‘communicative

76   See Wolfrum, ‘Sources’; Besson, ‘Theorizing’, p. 175; Duncan B. Hollis, ‘Why State Consent Still Matters—​Non-​State Actors, Treaties, and the Changing Sources of International Law’, Berkeley Journal of International Law 23 (2005): 137–​74, 140–​4. 77   See e.g., Andrew T. Guzman, ‘A Compliance-​Based Theory of International Law’, California Law Review 90 (2002): 1823–​87; Shelton, ed., Commitment and Compliance. 78   D’Aspremont, ‘Rules’, pp. 121–​2. D’Aspremont carefully distinguishes his social theory from a ‘voluntarist’ approach. ibid., p. 115. His seminal work elaborates how social practice may construct linguistic indicators that represent a process for ascertaining law’s existence. Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2008). 79 80   D’Aspremont, ‘Rules’, p. 116.   ibid., p. 115.

438    sources in interpretation theories practices of interpretation’.81 Of course, such a hegemonic move only highlights the ties that bind theories of interpretation to sources and vice versa.

3. The Interdependence of Authorities Domestic legal systems purport to distribute authority across different institutions.82 Legislatures are granted the authority to make the law; executives are granted the authority to enforce the law; and judiciaries are granted the authority to interpret the law. As I explained in section II above, law-​making and interpretative authorities are not so easily disaggregated; law-​making is itself a product of (existential) interpretation and interpretations regularly function in a creative, law-​making way. This muddling of authority is more pronounced in the international legal order given the notorious absence of any universal legislature or judiciary. Moreover, as with theory and doctrine, the structure of authority to ascertain law’s sources impacts who has authority to interpret just as the authority to interpret may realign who has authority to ascertain the law’s existence. For sources, States are the conventional (in both senses of that term) locus of law-​making authority. Article 38 is clearly State-​centric in assigning such authority (as was, for that matter, the original VCLT, which only covered treaty-​making by States).83 The centrality of States to the creation of international law carries over into the interpretative context. To be sure, States may delegate interpretative authority to international institutions as they did under the PCIJ (and, later the ICJ) Statute. In the absence of such a delegation, however, we are left, as Leo Gross described it, where ‘each state has a right to interpret the law, the right of autointerpretation, as it might be called’.84 Under the conventional view, therefore, law-​making emerges from a process of interpretation among a discrete group of authorities—​States. If we take a different view of law-​making authority, however, we may also alter who holds interpretative authority. For example, if international institutions have law-​making authority, they necessarily obtain interpretative authority as well (if not just in establishing the existence of international law, but also perhaps in opining on its meaning). This is especially the case for international courts and tribunals. Accepting their capacity to make international law shifts the very nature of

 Venzke, How Interpretation Makes International Law, p. 18.   By authority, I mean grants of permission or power, whether express or implied. For a discussion of ‘legitimate’ authority in international law, see Samantha Besson, ‘The Authority of International Law—​Lifting the State Veil’, Sydney Law Review 31 (2009): 343–​80, 351 ff. 83   Lauri Mälksoo also makes this point in ­chapter 6 in this volume. 84   Leo Gross, ‘States as Organs of International Law and the Problem of Autointerpretation’ (1953), reprinted in Gross, ed., Essays on International Law and Organization (Dobbs Ferry:  Transnational Publishers, 1984), 367–​98, 386. 81

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duncan b. hollis   439 their interpretative authority from one where they act as agents of States to a more autonomous role, or what Karen Alter termed a ‘trusteeship’.85 Of course, this assumes that the State-​centric concept of law-​making authority was accurate in the first place. It is possible, however, to locate law-​making authority not in States, but individuals themselves. Thus, Louis Sohn famously argued that ‘states never make international law on the subject of human rights. It is made by the people that care:  the professors, the writers of textbooks and casebooks, and the authors of articles in leading international law journals’.86 And if individuals can make law—​whether or not they speak for a State—​it dramatically opens up the range of those who may claim interpretative authority as well. Conversely, interpretative authority may structure law-​making authority. Gross’s theory of auto-​interpretation, for example, not only assigns States an interpretative role, but acknowledges that those States may make law by consenting to some common interpretation (whether in a treaty or by accepting third-​party adjudication or arbitration).87 Courts and international tribunals regularly claim authority (or, more precisely, jurisdiction) to interpret the content of international law.88 As the breadth and depth of these opinions grows, it is interesting to see suggestions that their precedents may warrant more than the secondary status Article 38 accords them; the capacity to interpret the law’s contents may thus translate into a capacity to establish its existence.89 International human rights law offers another case where non-​State actors have claimed interpretative authority that leads to very different visions of who makes international law and what it says than those offered by States. In a well-​known example, the UN Human Rights Committee issued General Comment No. 24, claiming for itself binding authority to interpret the admissibility of reservations to the International Covenant on Civil and Political Rights.90 Accepting such claims leads to not only alternative visions of international human rights law, but to a different set of authorities for constructing it. Indeed, studies of semantic authority suggest that the practice of making international law comes from a much broader 85   Karen J. Alter, ‘Agents or Trustees? International Courts in their Political Context’, European Journal of International Relations 14 (2008): 33–​63. 86   Louis B. Sohn, ‘Sources of International Law’, Georgia Journal of International and Comparative Law 25 (1995): 399–​406, 399. 87   Gross, ‘States as Organs’, pp. 386–​8. 88   And, just as ascertaining international law’s sources involves an existential interpretation, so too do decisions on the existence of interpretative authority. Hollis, ‘The Existential Function’, pp. 87–​90. 89   Cohen, ‘Theorizing Precedent’, pp. 270–​1. 90   International Covenant on Civil and Political Rights (ICCPR) (New  York, 16 December 1966, 999 UNTS 171). Human Rights Committee, General Comment No. 24, Issues relating to Reservations made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in relation to Declarations under Article 41 of the Covenant, 11 November 1994, CCPR/​C/​21/​Rev.1/​Add.6. For (hostile) reactions, see e.g., ‘Observation by the United States of America on General Comment No. 24 (52)’ (28 March 1995) CCPR A/​50/​40/​Annex VI, 126–​29; ‘Observations by the United Kingdom on GC No. 24’ (21 July 1995) CCPR A/​50/​40/​Annex VI, 130–​4.

440    sources in interpretation theories array of actors (e.g., international courts and tribunals, treaty bodies, IOs, industry, civil society, scholars) than States alone. In other words, expanding the range of those with interpretative authority does not just reconstruct what international law ‘is’ but also who makes it.91

IV.  Conclusions: Caveats and Consequences in Engaging Interdependence The relationship between the sources of international law and international legal interpretation is clearly deeper than most international lawyers acknowledge. In this chapter, I have attempted to offer a new perspective on this relationship, revealing how sources set the objects of international legal interpretation and how (existential) acts of interpretation set international law’s sources. Different manifestations of this interdependent relationship are evident across both concepts’ doctrines, theories, and authorities. But why make the effort? What value can interpretation or sources find in their mutual association? First, the interdependence thesis may have descriptive value. These linkages across various features offer a new way to assess the current state of thinking for each concept in areas of both consensus and division. This is not to suggest that I can establish causation—​specific changes in sources doctrine generating specific alterations to interpretation doctrine, or vice versa. Far from it. That effort involves more historical and theoretical discourse than a chapter such as this allows. On the contrary, as presently constructed, my analysis appears circular, with sources’ influence on interpretation explaining interpretation’s influence on sources, with those sources then looping back to further impact interpretation. Rather than decrying such circularity as a vice, however, it may prove virtuous. The two concepts’ relationship is, if anything, dynamic. In some cases, the two concepts may prove mutually reinforcing, perpetuating consensus on common elements (e.g., the role of States). More often, however, novel or divergent developments in one concept may unsettle and revise the other. As these interactions iterate over time, both concepts will continue to evolve, and with it the mutually constitutive nature of their relationship(s).   This is not to suggest that States have lost their interpretative or law-​making authorities, but rather that the pie may be expanded to accommodate other actors in both contexts. 91

duncan b. hollis   441 That said, I do not mean to suggest interdependence as some sort of inevitable, progressive expansion of sources or interpretative doctrines. True, we may see an expansion in the list of sources leading to an expanded list of interpretative doctrines (or an expansion in interpretative authorities expanding the roles of those with law-​making authority). But contractions are also possible. For example, Lauri Mälksoo’s chapter explains how legal scholars lost law-​making authority with the standardization of Article 38 as the authoritative source for international law, a move that also subordinated scholarly claims to interpretative authority.92 Second, the cross-​pollination of interpretation and sources may not only describe the present, but it also suggests pathways for future development. The two concepts’ interdependence opens up new mechanisms for change beyond those derived solely from either concept’s ontology. Indeed, we can anticipate knock-​on effects, where changing an aspect of one concept alters the other as well, creating instrumental opportunities for States and scholars in the process. Instead of simply recasting sources directly, for example, the same result might emerge from alterations to the interpretative concept (or vice versa). At present, however, we may not know how to do this; we lack knowledge of the micro-​influences by which changes in one arena impact or evolve the other. Thus, a third consequence of interdependence is highlighting the need for further study, whether to better explain the present or to offer instrumental levers for future development. Indeed, my effort to examine the dialectic among sources and interpretation is obviously incomplete. I have compared the concepts’ features in a relatively linear way, asking how doctrine effects doctrine and theory effects theory. A more developed analysis would consider whether and how alterations to a feature of one concept (e.g., theory) might impact a different feature of the other concept (e.g., doctrine or authorities). Further study could also address whether interdependence explains other common features of the two concepts. Both sources and interpretation doctrines wrestle, for example, with the idea of rules. Scholars debate whether sources doctrine involves rules—​Hartian or otherwise—​that fix the location of international law’s normativity.93 At the same time, scholars differ over whether or not the VCLT’s provisions constitute disciplining rules.94 Similarly, issues of hierarchy are evident in both sources and interpretation discourse, specifically how to prioritize the relative importance of their constituent elements (i.e. is relative normativity a welcome development for the sources of international law? Are treaties hierarchically

  See ­chapter 6 by Lauri Mälksoo in this volume.   D’Aspremont, ‘Rules’; Harlan G. Cohen, ‘Finding International Law, Part II:  Our Fragmenting Legal Community’, New York University Journal of International Law and Politics 44 (2012): 1049–​1107, 1057; Hart, The Concept of Law, pp. 94–​9. 94   See Orakhelashvili, Interpretation, pp. 285–​6; Gardiner, Treaty Interpretation, pp. 36–​8; van Damme, Treaty Interpretation by the WTO, p. 35. 92 93

442    sources in interpretation theories superior to custom? Should a purposive interpretation defeat a subjective one?).95 The absence of texts, moreover, befuddles both sources and interpretation as witnessed in the difficulties both in identifying the existence of non-​textual law such as custom and interpreting its meaning. Finally, my interdependence thesis may be important for generating a normative inquiry—​is this relationship good for the international legal order? Is it healthy to have law-ascertainment operate as a function of the same interpretative theories by which its contents are decided? Or, is this less of an interdependent and more of a ‘co-​dependent’ relationship, with rivalrous and unhealthy linkages that international lawyers should resist, pushing to return each concept back to independent functional assignments? Such questions open additional avenues for research and scholarship. For now, it is enough to note that international lawyers must pay more attention to how we interpret international law from its sources and source international law from our interpretations.

Research Questions • How does the choice of interpretative theory, method or technique impact the nature and purpose of the sources of international law? How does the choice of a specific theory or list of sources impact the available theories, methods, and techniques of international legal interpretation? Under what conditions can specific changes to one concept generate modifications to the doctrine, theory or available authorities of the other? • Does a deep and complex mutually constitutive relationship between international legal interpretation and the sources of international law benefit (or harm) the international legal order as a whole?

Selected Bibliography Aspremont, Jean d’, ‘The Idea of “Rules” in the Sources of International Law’, British Yearbook of International Law 84 (2013): 103–​30.

  See e.g., Thirlway, Sources, pp. 129 ff; Prosper Weil, ‘Towards Relative Normativity in International Law?’, American Journal of International Law 77 (1983): 413–​42, 421. 95

duncan b. hollis   443 Aspremont, Jean d’, ‘The Multidimensional Process of Interpretation: Content-​Determination and Law-​Ascertainment Distinguished’, in Andrea Bianchi, Daniel Peat, and Matthew Windsor, eds, Interpretation in International Law (Oxford: Oxford University Press, 2015), 111–​32. Besson, Samantha, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2010), 163–​85. Fitzmaurice, Gerald G., ‘Some Problems Regarding the Formal Sources of International Law’, Symbolae Verzijl (1958): 153–​76. Hollis, Duncan B., ‘The Existential Function of Interpretation in International Law’, in Andrea Bianchi, Daniel Peat, and Matthew Windsor, eds, Interpretation in International Law (Oxford: Oxford University Press, 2015), 78–​110. Koskenniemi, Martti, ‘Introduction’, in Martti Koskenniemi, ed., Sources of International Law (Burlington: Ashgate, 2000), xi–​xxviii. Merkouris, Panos, ‘Interpreting the Customary Rules on Interpretation’, (2016), , accessed 1 June 2017. Thirlway, Hugh, The Sources of International Law (Oxford: Oxford University Press, 2014). Venzke, Ingo, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford: Oxford University Press, 2012).

Section  XI

SOURCES IN THE META-​T HEORY OF INTERNATIONAL LAW

Chapter 21

SOURCES IN THE META-​T HEORY OF INTERNATIONAL LAW EXPLORING THE HERMENEUTICS, AUTHORITY, AND PUBLICNESS OF INTERNATIONAL LAW

Matthias Goldmann

I. Introduction What is a meta-​theory of the sources? A meta-​theory is a theory that looks behind the theory of the sources—​or the sources doctrine. It has the purpose of identifying the presuppositions underlying the sources doctrine, i.e. the explicit or implicit assumptions that international lawyers make when they identify, interpret, and apply the sources of international law in their daily practice. It is worthwhile exploring such a meta-​theory because the sources doctrine constitutes the linchpin of many, though not all, diverging approaches to international law, whether they are positivist or non-​positivist, formalist or realist,

448    sources in the meta-theory of international law rationalist or constructivist ones. While these approaches diverge with respect to their views about the nature, identification, or legitimacy of the sources of international law, they share certain core assumptions about them. This chapter discusses three of these assumptions: first, the assumption that international law consists of a set of autonomous rules whose application is (at least to some extent) independent of the political, economic, or other preferences of those applying them (section II: The Autonomy of the Sources of International Law); secondly, the assumption that international law is the dominant form of legitimate authority on the international level (section III: The Authority of the Sources of International Law); thirdly, the assumption that State consent is both necessary and sufficient for legitimizing international law (section IV: The Legitimacy of the Sources of International Law). These assumptions are widespread—​and often taken for granted—​among what one might consider the mainstream of international law that dominates international legal practice, especially the practice of international courts, where the identification, interpretation, and application of the sources of international law is part of the staff of life. Other approaches to international law criticize some of these assumptions, arguing that they stand on shaky ground, on contested and questionable premises. Thus, the first assumption is challenged by realists and neo-​realists claiming that international law merely represents State power,1 or by critical legal scholars claiming that international law is merely epiphenomenal, reflecting the superstructure of underlying socio-​economic relationships (section II.1).2 The second assumption has come under fire by scholars studying the influence of new forms of governance unleashed by globalization. Accordingly, the traditional sources of international law provide only an imperfect account of contemporary international authority, which includes new forms of governance like soft law and information (section III.2).3 Regarding the third assumption, some argue that State consent alone does not sufficiently legitimize the sources of international law any longer, given that their scope, as well as the intensity with which they regulate a

 See e.g., Hans J. Morgenthau, Politics among Nations. The Struggle for Power and Peace (New  York:  Knopf, 1949); Kenneth N. Waltz, Theory of International Politics (Reading:  Addison-​ Wesley, 1979); Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (Oxford: Oxford University Press, 2005). 2  See e.g., Martti Koskenniemi, From Apology to Utopia:  The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) (reissue with a new epilogue), pp. 303 ff, 583 ff. (critical analysis of the structure of arguments about the sources of international law). 3  See e.g., Dinah Shelton, ed., Commitment and Compliance. The Role of Non-​Binding Norms in the International Legal System (Oxford:  Oxford University Press, 2000); Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, Anne-​Marie Slaughter, and Duncan Snidal, ‘The Concept of Legalization’, International Organization 54 (2000): 401–​19; Joseph H. H. Weiler, ‘The Geology of International Law—​Governance, Democracy and Legitimacy’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 64 (2004): 547–​62. 1

matthias goldmann   449 certain issue, have expanded, leading to potential conflicts with democratic self-​ determination at the domestic level (section IV.2).4 The purpose of this chapter is to engage with such criticism, and to propose certain readjustments to the sources theory which might strengthen its theoretical underpinnings. Thus, regarding the first assumption, strengthening law’s autonomy requires a modern hermeneutics of international law that explains both its rootedness in power relationships and its relative autonomy from them. Legal theory holds innovative approaches on offer (section II.2). The most promising ones obliges us to put a stronger emphasis on principles of international law (section II.3). Regarding the second assumption, the sources of international law should be embedded in a broader concept of authority to more adequately depict the present international order (section III.3). Regarding the third assumption, the concept of public authority identifies those rules of international law which require more than just State consent to be legitimate. They need to be embedded in an emerging international public law which ensures that they respect higher standards of transparency, participation, and accountability (section IV.3).

II.  The Autonomy of the Sources of International Law 1. The Disputed Autonomy of International Law One of the outstanding assumptions underlying the sources doctrine goes almost without saying for standard accounts of international law: a doctrine of the sources presupposes an understanding of international law as a set of autonomous rules, i.e. as rules whose application is at least to some extent independent of the political, economic, or other preferences of those applying them. Nothing less but law’s claim to justice depends on this idea of autonomy. If the rules of international law could be bent in any way, they would be entirely epiphenomenal, a ‘culture’

4  From the rich literature, see e.g., Weiler, ‘The Geology of International Law’; Jan Wouters, Bart De Meester, and Cedric Ryngaert, ‘Democracy and International Law’, Netherlands Yearbook of International Law 34 (2003):  139–​97; Samantha Besson, ‘Institutionalising Global Demoi-​cracy’, in Lukas H. Meyer, ed., Legitimacy, Justice and Public International Law (Cambridge:  Cambridge University Press, 2009), 58–​91; Allen Buchanan, ‘The Legitimacy of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 79–​96.

450    sources in the meta-theory of international law that merely reflected the power struggles of those applying the law, unable to constrain them.5 Hence, the autonomy of international law requires a rational relationship that connects the sources with their application in a concrete case and ensures that the latter does not merely result from the arbitrary will of the applier. International law shares this presupposition with modern domestic legal orders, as thinking in terms of sources is not a unique feature of international law.6 Perceptions about the rationality of this relationship have varied over time, reflecting changing attitudes about legal hermeneutics. The following briefly reiterates this development with a focus on international law.7 One can broadly distinguish three stages:  the first terminates with Immanuel Kant, the second with Hans Kelsen, while the third one lasts until today. Each stage is characterized by the preponderance of certain perceptions of the sources of international law and the rationality of their application. Regarding the first stage, when international law—​or the law of nations, as it then was called—​emerged as an autonomous order separate from domestic law during the formative period of European statehood,8 it shared the hermeneutics of the Age of Reason, which trusted in the capacity of human reason to produce objective ideas. One of them was natural law. It was believed to ensure the autonomy of the law of nations. This understanding arguably reached its purest form in the work of Christian Wolff.9 He held that the law of nations consisted of mechanical deductions from natural law.10 Emer de Vattel shared Wolff ’s view that the connection with natural law made the law of nations autonomous.11 Vattel, however, argued that the bulk of the law of nations, the so-​called voluntary law of nations, consisted in

 Koskenniemi, From Apology to Utopia, pp. 616–​17; Martti Koskenniemi, The Gentle Civilizer of Nations (Cambridge: Cambridge University Press, 2002), pp. 494 ff. 6   But see Hugh W. A. Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), p. 1. 7   See also ­chapter 19 by Ingo Venzke in this volume. 8  Emmanuelle Jouannet, The Liberal-​Welfarist Law of Nations. A  History of International Law (Cambridge: Cambridge University Press, 2012), p. 12; Martti Koskenniemi, ‘Between Coordination and Constitution: International Law as a German Discipline’, Redescriptions 15 (2011): 45–​70; Arguing that Hugo Grotius did not set out a modern interstate legal order but focused on the laws of war: Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Paris: Presses universitaires de France, 1983), pp. 614 ff. 9   Christian von Wolff, Jus gentium. Methodo scientifica pertractatum, in quo ius gentium naturale ab eo, quod voluntarii, pactitii et consuetudinarii est, accurate distinguitur (Halae Magdeburgicae: Prostat in officina libraria Rengeriana, 1749). 10   I rely for this assessment on Koskenniemi, From Apology to Utopia, pp. 108 ff. 11  Jouannet, The Liberal-​Welfarist Law of Nations, pp.  17–​18; Stéphane Beaulac, The Power of Language in the Making of International Law. The Word Sovereignty in Bodin and Vattel and the Myth of Westphalia (Leiden: Martinus Nijhoff, 2004), pp. 158 ff. 5

matthias goldmann   451 adaptations of natural law to the realities of the society of States and the interests of its members in maintaining a balance of power, rather than in mere deductions.12 Yet, it soon came to be realized that natural law was not as objective as thought. As Kant famously held, human cognition derived as much from pre-​existing concepts (Begriff) as it depended on intuitions (Anschauung).13 Natural law thus necessarily comprised a human element. Kant therefore replaced natural law with practical reason, the foundation of objective moral judgements, to preserve the autonomy of the law.14 This worked for Kant only because he considered law as another form of morality, hence as the emanation of practical reason, coupled with enforcement powers15—​the same practical reason which commanded the transition to a world federation.16 In the second stage, however, trust in the objectivity of practical reason came under fire by historical and utilitarian strands of thought. The former is represented by Georg Friedrich Wilhelm Hegel. For him, Kant’s idea of practical reason was too solipsistic. Objectivity, he held, was not an individual faculty, but an emanation of the objective spirit which revealed itself in the historical development of the modern State.17 Hence, positive, State-​made law represented that objectivity. This automatically relegated international law to the status of an external law of the State18—​a view which inspired much of the contemporary literature on international law. Such approaches had a hard time to explain—​or rather, not to deny—​the autonomy of international law.19 One strategy was to claim that history did not culminate in the State, but in the international community.20 It eventually succumbed to rising sovereigntist claims in the run-​up to the First World War.21 Heinrich Triepel held that State consent to a rule of international law created a new common will (Gemeinwille) independent of the will of its creators that ensured the autonomy of international law.22 Georg Jellinek argued that States would feel

 Jouannet, The Liberal-​Welfarist Law of Nations, pp. 22–​4 and 88; Koskenniemi, From Apology to Utopia, pp. 114–​18. 13  Immanuel Kant, Kritik der reinen Vernunft, vol. 3, 2nd edn (Berlin:  Königlisch Preußische Akademie der Wissenschaften, 1904 [1787]), p. 75. 14   Immanuel Kant, Kritik der praktischen Vernunft, vol. 5 (Berlin: Königlich Preußische Akademie der Wissenschaften, 1913 [1788]), p. 19. 15   Immanuel Kant, Die Metaphysik der Sitten, vol. 6 (Berlin: Königlich Preußische Akademie der Wissenschaften, 1907 [1797]), pp. 228 ff. 16  Immanuel Kant, ‘Zum ewigen Frieden’, in Abhandlungen nach 1781, vol. 8 (Berlin:  Königlich Preußische Akademie der Wissenschaften, 1923 [1796]), p. 341. 17  Georg Friedrich Wilhelm Hegel, Grundlinien der Philosophie des Rechts, vol. 6, 2nd edn (Hamburg: Meiner, 1921), Sec. 257 ff. 18   ibid., Sec. 330 et seq. 19   Adolf Lasson, Princip und Zukunft des Völkerrechts (Berlin: Hertz, 1871), p. 171. 20  Johann C. Bluntschli, Das moderne Völkerrecht der civilisierten Staten, 3rd edn (Nördlingen: C. H. Beck, 1878), pp. 236–​7. 21  Koskenniemi, The Gentle Civilizer, pp. 88 ff. 22   Heinrich Triepel, Völkerrecht und Landesrecht (Leipzig: Hirschfeld, 1899), pp. 31–​2, 70 ff., 82. 12

452    sources in the meta-theory of international law bound by international law to the extent that the latter reflected an objective purpose of the State.23 The utilitarian strand is epitomized by the work of John Austin, who considered law as enforceable commands by the government seeking the greatest good for the greatest number of people.24 While the notion of the greatest good secured the autonomy of the law, the concept of law hinged on the possibility of governmental enforcement. Consequently, Austin dismissed international law as pure morality.25 By contrast, Lassa Oppenheim, writing at the time when the ‘first’ globalization gained momentum, recognized the (economic) significance of international law for the ‘greatest good’ and argued that the Great Powers ensured its enforcement.26 Both strands soon came under fire. Historical progress narratives found it difficult to confront scientific insights about the lack of purpose and finality in nature, such as Charles Darwin’s theory about the origin of species. The economic progress narrative corroborating utilitarianism came under attack from communist and socialist critiques in the face of mass poverty.27 These doubts, which later found tragic confirmation in the outbreak of the First World War, opened the gates for fundamental critiques: the adherents of American Legal Realism argued that the application of legal rules to a particular context was an entirely contingent affair,28 while German Interessenjurisprudenz required the judge to further develop the law in line with the preferences of the legislature.29 This called the autonomy of the law into question. Writers like Erich Kaufmann articulated these concerns with respect to international law, arguing that States’ interest in self-​preservation was ultimately prevailing over the rules of international law.30 Theories dismissing law as a system of rules did not take long to emerge.31 In this difficult environment, new approaches sought to safeguard the autonomy of the law. Georges Scelle tried to re-​establish law’s autonomy by reference to the idea of solidarity and corresponding objective social needs.32 The neo-​Kantians of   Georg Jellinek, Die rechtliche Natur der Staatenverträge. Ein Beitrag zur juristischen Construction des Völkerrechts (Vienna: Hölder, 1880). 24  John Austin, The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble (Cambridge: Cambridge University Press, 2001), p. 21. 25   ibid., p. 359. 26   Mónica García-​Salmones Rovira, The Project of Positivism in International Law (Oxford: Oxford University Press, 2013), pp. 44 ff. 27   Karl Polanyi, The Great Transformation: The Political and Economic Origins of our Time, 2nd edn (Boston: Beacon Press, 2001 [1944]), ch. 1 and 2. 28   See e.g., Roscoe Pound, ‘Mechanical Jurisprudence’, Columbia Law Review 8 (1908): 605–​23. 29   Rudolf von Jhering, Der Kampf um’s Recht (Wien: Manz, 1872). 30   Erich Kaufmann, Das Wesen des Völkerrechts und die clausula rebus sic stantibus (Tübingen: Mohr Siebeck, 1911), p. 151: ‘Nur der, der kann, darf auch’. On the misunderstandings surrounding this conclusion, see Frank Degenhardt, Zwischen Machtstaat und Völkerbund:  Erich Kaufmann (1880–​1972) (Baden-​Baden: Nomos, 2008), pp. 20 ff. 31   Carl Schmitt, Politische Theologie, 7th edn (Berlin: Duncker & Humblodt, 1996). 32   Georges Scelle, ‘Essai de systématique du droit international. Plan d’un cours de droit international public’, Revue générale de droit international public 30 (1923): 116–​42. 23

matthias goldmann   453 the Vienna school tried to cut the connection between law and history, economics, or politics by insisting on a rigorous distinction between the ‘is’ and the ‘ought’. They readily recognized that the application of a legal rule to facts included political judgement.33 However, they maintained that the meaning of the terms of a legal rule was ultimately objective, though sometimes ambiguous. When applying a rule, judges would have to make a political choice among different possible interpretations, but these interpretations as such were the result of objective cognition by legal science.34 This saved the autonomy of international law at least partially. The efforts of the Vienna School were powerless against the development characterizing the third stage, the so-​called linguistic turn that emphasized the relational character of language.35 Ludwig Wittgenstein’s credo that the meaning of a word is determined by its use in language pulled the plug on the idea that the interpretation of a legal rule was rock-​solid science.36 Interpretation, it seemed, involved as much political judgement as the creation of a rule. Emerging in the philosophy of language, it took the linguistic turn several decades to reach the legal discipline.37 Meanwhile, the catastrophes of the World Wars and the holocaust inclined some to return to extra-​legal, natural principles.38 Ultimately, however, the linguistic turn opened the gate for post-​modern rule scepticism in the legal discipline, challenging the autonomy of the law. In international law, Critical Legal Scholarship gave up on international law as an autonomous order of immanent reason.39 Accordingly, the power relationship between the parties would determine the meaning of a rule in a concrete case. Diametrically opposed to critical theories, but equally an offspring of the rejection of objectivity in language, the New Haven School espoused utilitarian progress narratives of international law, this time with the intention of maximizing the realization of certain base values.40 Process theories dispense with such narratives and consider legal concepts to be constantly evolving without any stable reference points.41 Given these doubts about the autonomy of international law, the law and economics movement could replace the autonomy of international law with the   Hans Kelsen, Pure Theory of Law (Berkeley: University of California Press, 1967), p. 5.   ibid., pp. 348 ff.; Adolf Merkl, ‘Das doppelte Rechtsantlitz’, Juristische Blätter 47 (1918): 425–​65. 35   Ferdinand de Saussure, Cours de linguistique générale (Paris: Payot, 1916). 36   Ludwig Wittgenstein, Philosophische Untersuchungen, vol. 1, 16th edn (Berlin: Suhrkamp, 2004), Sec. 43. 37   Ground-​breaking: H. L. A. Hart, The Concept of Law, 2nd edn (Oxford: Oxford University Press, 1994), pp. 124 ff. 38  Martti Koskenniemi, ‘Lauterpacht:  The Victorian Tradition in International Law’, European Journal of International Law 8 (1997): 215–​63. 39   David Kennedy, ‘Theses about International Law Discourse’, German Yearbook of International Law 23 (1980): 353–​91; David Kennedy, ‘The Sources of International Law’, American University Journal of International Law and Policy 2 (1987): 1–​96; Koskenniemi, From Apology to Utopia. 40   Myres S. McDougal, International Law, Power and Policy: A Contemporary Conception, vol. 82, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1953), 137–​259. 41   Harold H. Koh, ‘Transnational Legal Process’, Nebraska Law Review 75 (1996): 181–​207. 33

34

454    sources in the meta-theory of international law autonomy of self-​interested States.42 Some of its exponents entirely dismiss international law’s autonomy and consider it as an epiphenomenon of the underlying economic or political forces.43 This is about where we are today. The autonomy of the law, as much as the mainstream in international law may take it for granted in their daily practice, is in a theoretical sense hanging in the air. What it needs is a profoundly refurbished hermeneutics that explains the autonomy of international law for our times.

2. Towards a Modern Hermeneutics of International Law I will make the case for a post-​modern hermeneutics, for ‘the defense of the normative self-​understanding of modernity for its cultured despisers’.44 The challenge lies in recognizing the contingency of the interpretation and application of international law while sticking to the idea of an autonomous international legal order.45 There are many possible approaches for such a hermeneutics of international law. After all, proponents of the linguistic turn did not claim that the meaning of words was entirely subjective, but that it was relational, context-​dependent, rather than intrinsic and stable.46 H.  L. A.  Hart’s notion of social practice as a basis for law’s validity reproduces this move from the intrinsic to the relational in legal theory.47 But how exactly should one imagine the social acceptance of a certain rule and its meaning? One possible avenue is Robert Brandom’s inferential theory of language. Accordingly, each speaker implicitly reasserts or claims a specific meaning by using a concept in a certain context. Speakers keep score of these claims or reassertions. Their entirety constitutes a practice-​generated objectivity in language.48 Similarly, Jean d’Aspremont argues that one ultimately must rely on the societal constraints that determine the acceptance of

42   See e.g., Jeffrey L. Dunoff and Joel P. Trachtman, ‘Economic Analysis of International Law’, Yale Journal of International Law 24 (1999):  1–​59; Andrew T. Guzman, How International Law Works. A Rational Choice Theory (Oxford: Oxford University Press, 2008). 43   Goldsmith and Posner, The Limits. 44   Jürgen Habermas, ‘Nach dreißig Jahren: Bemerkungen zu “Erkenntnis und Interesse”’, in Stefan Müller-​Doohm, ed., Das Interesse der Vernunft (Berlin: Suhrkamp, 2000), 13 (translation by author). The quote alludes to a work of one of the grand masters of hermeneutics: Friedrich Schleiermacher, On Religion: Speeches to Its Cultured Despisers, trans. John Oman (New York: Harper, 1958). 45   See also Andreas Paulus, ‘International Law after Postmodernism: Towards Renewal or Decline of International Law?’, Leiden Journal of International Law 14 (2001): 727–​55. 46  Wittgenstein, Philosophische Untersuchungen, section 202. 47  Hart, The Concept of Law, pp. 100 ff. 48  Robert Brandom, Making it Explicit (Cambridge:  Harvard University Press, 1994), especially pp. 180 ff.

matthias goldmann   455 international law.49 While these approaches are remarkable, they do not entirely solve the problem of the subjectivity, and thus of the autonomy, of legal reasoning. For who should be the arbiter in Brandom’s score-​keeping exercise?50 And who should assess whether there are adequate societal constraints?51 It seems to me that Jürgen Habermas’ theory of rational reconstruction offers a viable response.52 Rational reconstruction carves out the necessary, even counterfactual presuppositions, which each participant in an actual communicative practice (the reconstructive element) needs to subscribe to in order to allow that practice to coordinate their action (the rational element).53 Habermas first developed this method in his theory of communicative action.54 Accordingly, participants to a communication need to commit themselves to making true, correct, and veracious statements.55 These presuppositions are not arbitrary, as participants consider them as necessary. In this shared rationality, Habermas finds the external reference point which replaces the progress narratives of former times and ensures the autonomy of discursive ethics. Certainly, not every actual communication is consistent with these presuppositions. Rational reconstructions are always to some extent counterfactual. This is from where they derive their critical potential. Hence, one might define rational reconstruction as the identification of the—​at least implicit, and probably counterfactual—​presuppositions of the participants in a certain social practice, which render that practice meaningful and allow for a critique of deviating practice.56 My proposal is to understand legal reasoning as rational reconstruction.57 Accordingly, the application of the sources of international law is an exercise in the 49   Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011), p. 201 and d’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’, British Yearbook of International Law 84 (2014) 103–​30. 50   Sergio Dellavalle, ‘Das Recht als positiv-​formalisierte Sprache des gesellschaftlich verbindlichen Sollens’, in Carsten Bäcker, Matthias Klatt, and Sabrina Zucca-​Soest, eds, Sprache—​Recht—​Gesellschaft (Berlin: Mohr Siebeck, 2012), 93–​117, 111–​13. 51   Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), pp. 46–​8. 52   This resembles what Jean d’Aspremont would call ‘content-determination’; see c­ hapter 17 in this volume. 53   Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge: Polity Press, 2008), ch. 3. 54  Jürgen Habermas, Theorie des kommunikativen Handelns, vol. 1 (Berlin:  Suhrkamp, 1981), pp. 369 ff. 55  Habermas, Theorie des kommunikativen Handelns, pp. 376 ff., 397 ff. (ch. 3, parts 1 and 3). 56   Markus Patberg, ‘Supranational Constitutional Politics and the Method of Rational Reconstruction’, Philosophy & Social Criticism 40 (2014): 501–​21. 57  Armin von Bogdandy, ‘The Past and Promise of Doctrinal Constructivism:  A  Strategy for Responding to the Challenges Facing Constitutional Scholarship in Europe’, International Journal of Constitutional Law 7 (2009):  364–​ 400; Matthias Goldmann, ‘Dogmatik als rationale Rekonstruktion:  Versuch einer Metatheorie am Beispiel völkerrechtlicher Prinzipien’, Der Staat 53 (2014):  373–​99; Matthias Goldmann, ‘Principles in International Law as Rational Reconstructions. A Taxonomy’ (13 November 2013), , accessed 15 October 2016.

456    sources in the meta-theory of international law rational reconstruction of what one could consider as shared understandings of the participants in international legal discourse. Such reconstructions are inter-​subjective, not merely subjective, because the other participants in international legal discourse would need to accept them if they want to coordinate their action through international law. Granted, inter-​subjectivity is not the same as objectivity. One might rationally disagree about rational reconstructions. Nevertheless, they provide a criterion for distinguishing legal reasoning from the expression of mere subjective feelings. Rational reconstruction thus vindicates legal hermeneutics on the one hand against realist perspectives that cannot explain the connection between a source of law and its instantiation in practice, and on the other hand, against excessive varieties of legal formalism which miss out the contingency of the sources. In this way, it safeguards the autonomy of international law.

3. The Role of Principles of International Law The proposed hermeneutics has important consequences for the source doctrine. Not all shared understandings identified through rational reconstruction have the same status. Some of them might be more accepted and widespread than others. Some of them concern specific issues, others are more abstract and cross-​cutting. The latter are of high relevance for the coherence and consistency of the legal order. They are what lawyers usually call principles. Principles play a crucial role for hermeneutics.58 Dworkin observed that courts determine the meaning of a certain legal rule by reference to principles.59 For the most part, principles are meta-​rules, not direct sources of international law, but their nature, relation to other sources, and role for the interpretation of international law raise questions which are closely connected to the sources doctrine. The sources doctrine should therefore address them. It is surprising how little has been written about the nature of principles, given the wealth of recent literature on interpretation.60 Most of the literature focuses on general principles of law.61 Although these play a crucial role in international law,  Kant, Kritik der reinen Vernunft, pp. 131 ff.   Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), p. 22. The disagreement surrounding the relation between principles and rules hardly affects the hermeneutic role of principles. See ibid., pp. 24–​6; Robert Alexy, ‘On the Structure of Legal Principles’, Ratio juris 13 (2000): 294–​304; Habermas, Between Facts and Norms, pp. 255, 309–​17 (ch. 5, I.3.b and II.1); Hart, The Concept of Law, pp. 260 ff. (Postscript). 60  Overview:  Michael Waibel, ‘Demystifying the Art of Interpretation’, European Journal of International Law 22 (2011): 571–​88. 61   On their function for legal hermeneutics, see Robert Kolb, La bonne foi en droit international public. Contribution à l’étude des principes généraux de droit (Paris: Presses universitaires de France, 58

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matthias goldmann   457 embodying some of its most fundamental norms,62 they constitute a very specific type of principle—​a source of their own, derived from domestic law. The interpretation and application of international law often finds guidance in another kind of principle, which I prefer to call ‘principles of international law’. They are based on rational reconstructions of international law, reflecting shared understandings of the salient structures of the international legal order.63 Such principles are particularly important for the interpretation and application of international law because international law appears at first sight as an accumulation of disparate, incomplete, and at times contradictory sources and practices. Principles of international law show that practice follows broadly coherent patterns (reconstruction), and that these patterns are consistent with other rules and principles of international law (rationality).64 Evidently, the idea of principles of international law presupposes that one understands international law as a kind of order, although a fragmented one.65 The development of international law since the Second World War corroborates this assumption. There is now a presumption in international law that the rules of international law do not contradict each other,66 and form a largely coherent structure.67 Principles of international law are the backbone of that order. The partly counterfactual character of rational reconstructions implies that practice will hardly ever follow a principle without exception. Principles may also reflect a trend or a tendency in understanding international law that is not fully shared yet. In that case, one might speak of an emerging principle.68 2000), pp. 24–​5, 45 ff. On their formation, see Hersch Lauterpacht, Private Law Sources and Analogies of International Law (New York: Archon Books, 1970), pp. 67 ff.   See e.g., Bruno Simma and Philipp Alston, ‘The Sources of Human Rights Law:  Custom, Jus Cogens and General Principles’, Australian Yearbook of International Law 12 (1992): 82–​108. 63   Wolfgang G. Friedmann, The Changing Structure of International Law (New York: Columbia University Press, 1964), pp. 196 ff.; Rüdiger Wolfrum, ‘General International Law (Principles, Rules, and Standards)’, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2010), , paras 6–​21, 56–​7; Goldmann, ‘Dogmatik’. 64   Koskenniemi calls them ‘descriptive principles’. See Martti Koskenniemi, ‘General Principles: Reflexions on Constructivist Thinking in International Law’, in Martti Koskenniemi, ed., Sources of International Law (Burlington: Dartmouth, 2000), 359–​402, 365–​6. Samantha Besson, ‘General Principles in International Law—​Whose Principles?’, in Samantha Besson and Pascal Pichonnaz, eds, Les principes en droit européen—​Principles in European Law (Genève: Schulthess, 2011), 19–​64, 48–​51. 65   See by contrast, The Case of the S.S. “Lotus” (France v Turkey) (Judgment) PCIJ Rep Series A No. 10 (1927), which puts ‘principles of international law’ on a par with contractual or customary obligations (pp. 16–​17). 66   Case concerning right of passage over Indian Territory (Portugal v India) (Preliminary Objections) [1957] ICJ Rep 125, 142. 67  See e.g., Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY–​94–​1–​AR72, Appeals Chamber (2 October 1995). 68  For a taxonomy of principles, see Goldmann, ‘Principles in International Law as Rational Reconstructions. A Taxonomy’. 62

458    sources in the meta-theory of international law The relationship between principles of international law and the sources of international law enumerated in Article 38 (1) of the Statute of the International Court of Justice is a complex one.69 Generally, principles are abstractions from the sources. Some principles might have crystallized into customary rules, or been stipulated in treaties. For example, the principles enumerated in the Friendly Relations Declaration are mostly customary rules.70 The principle of the ‘common heritage of mankind’ characterizes the law of the sea, codified in Article 136 of the United Nations Convention on the Law of the Sea (UNCLOS).71 Soft law might corroborate trends in legal practice, fostering the recognition of principles. Examples include the notion of sustainable development coined by the Rio Declaration,72 or the principle of sovereign debt sustainability endorsed by the United Nations General Assembly.73 Are principles a legitimate reference point for the rules of interpretation of the Vienna Convention on the Law of Treaties (VCLT)?74 Regrettably, Articles 31 and 32 of the VCLT do not mention principles, despite their crucial role for legal interpretation. Nevertheless, as principles are reconstructions of practice, it seems apposite to qualify them as ‘subsequent practice’ in the sense of Article 31 (3) (b) of the VCLT insofar as they are related to the subject matter of a treaty, like the sustainability principle to environmental treaties. To the extent that principles have no immediate relation with the rule that stands to be interpreted, one might qualify them as ‘other rules of international law’ pursuant to Article 31 (3)  (c) of the VCLT. Principles epitomize the thrust of a whole array of rules of international law. This provision is often considered as the basis of ‘systemic integration’, of which principles are a crucial component.75 In conclusion, a turn to principles would enhance the understanding of the autonomy of international law. The sources doctrine stands on these shoulders.   Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993).   Declaration on Principles of International Law concerning Friendly Relations and Co-​operation among States in accordance with the Charter of the United Nations, UNGA Res 25/​ 2625 (24 October 1970). 71   United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay, 10 December 1982, 1833 UNTS 3). 72   Rio Declaration on Environment and Development, Rio de Janeiro, 14 June 1992, UN Doc. A/​ CONF.151/​26 (vol. I). 73   Basic Principles on Sovereign Debt Restructuring Processes, UNGA Res 69/​319 (29 September 2015); see Juan Pablo Bohoslavsky and Matthias Goldmann, ‘An Incremental Approach to Sovereign Debt Restructuring:  Sovereign Debt Sustainability as a Principle of Public International Law’, Yale Journal of International Law Online 41 (2016): 13–​43. 74   Vienna Convention on the Law of Treaties (Vienna, 23 May 1969, 1155 UNTS 331). 75  Matthias Herdegen, ‘Interpretation in International Law’, in Wolfrum, ed., The Max Planck Encyclopedia of Public International Law, paras 22 ff. 69 70

matthias goldmann   459

III.  The Authority of the Sources of International Law 1. Sources of Law and Enforcement Traditionally, the doctrine of the sources of international law rests on the assumption that binding, enforceable international law is the principal instrument for guiding the behaviour of the subjects of international law. This has excluded more subtle, non-​enforceable instruments from international law’s sight. International law shares this focus on enforcement with domestic law. It originates in early modernity, when the modern State distinguished itself from the feudal past by its superior capacity of centralized enforcement.76 The focus on enforcement resonates with a specifically modern, protestant anthropology. The Reformation firmly established the idea of the natura corrupta, of the sinful character of human nature.77 It is a core theme in Luther’s theory of justification.78 From there, it was only a short step to the idea that law needs enforcement because more subtle forms of ‘nudging’ would be ineffective. This anthropology found its way into Kant’s concept of law. One might never trust people to respect the categorical imperative!79 The rise of capitalism transformed protestant ethics into the idea of the homo oeconomicus.80 Human self-​interest needed to be countered with governmental enforcement. Theoretically explored by Bentham, Austin popularized the idea of positive, enforceable law.81

 Michel Foucault, Securité, territoire, population. Cours au collège de France (1977–​78) (Paris: Gallimard/​Seuil, 2004). 77   See Art. 2 of the Confessio Augustana (1530): ‘Also they teach that, after Adam’s fall, all men begotten after the common course of nature are born with sin; that is, without the fear of God, without trust in him, and with fleshly appetite; and that this disease, or original fault, is truly sin, condemning and bringing eternal death now also upon all that are not born again by baptism and the Holy Spirit.’ (trans. C. P. Krauth, 1874, , accessed 16 October 2016). 78   Martin Luther, Vom unfreien Willen (München:  Kaiser, 1924 [1525]) on man’s need for divine redemption after the fall due to his sinful nature. 79  Kant, Metaphysik. 80  Max Weber, The Protestant Ethic and the Spirit of Capitalism, trans. Talcott Parsons (New York: Scribner, 1958). On the homo oeconomicus, see Bernard Mandeville, The Fable of the Bees; or, Private vices, publick benefits, ed. Irwin Primer (New York: Capricorn Books, 1962). 81  On the Benthamite pedigree, see Frederick Schauer, The Force of Law (Cambridge: Harvard University Press, 2015), pp. 11 ff.; Austin The Province of Jurisprudence, p. 21. 76

460    sources in the meta-theory of international law

2. The Rise of Global Governance The rise of global governance makes it unconvincing to think of the present international order as a compendium of binding, enforceable rules only. That order is characterized by an array of different types of rules and instruments. Soft law, but also non-​legal instruments like information,82 are on the rise on the international level. Michel Foucault observed the diversification of the instruments of domestic government during the rise of the welfare State since the end of the eighteenth century.83 International law has seen an analogous development since its rules and institutions began to complement the domestic welfare State.84 As soon as international organizations had acquired legal personality and the task to enhance welfare, they began diversifying their instruments. The International Labour Organization issued recommendations for labour standards, and the League of Nations recommended structural reforms to over-​indebted States.85 The trend continued after the Second World War with the practice of recommendations in the United Nations and the Organization for Economic Cooperation and Development (OECD). Since about 1980, globalization has dramatically increased the need for coordination, prompting wider use of soft law and a diversification of its forms, including veritable soft law regimes like the Codex Alimentarius. Some of them have operated for many decades, such as the OECD Export Credits Arrangement. A wealth of research has provided insight into the phenomenology of this trend to new governance instruments,86 as well as into the reasons for their popularity.87 They provide for greater flexibility, free governments from the need for ratification, give powerful States the possibility to exercise influence outside formal strictures, provide less powerful States with an opportunity for voice, or serve the formation of a common conceptual basis in highly disputed fields.88 82  See e.g., Kevin E. Davis, Benedict Kingsbury, and Sally Engle Merry, ‘Introduction:  Global Governance by Indicators’, in Kevin E. Davis, Angelina Fisher, Benedict Kingsbury, and Sally Engle Merry, eds, Governance by Indicators:  Global Power through Quantification and Rankings (Oxford: Oxford University Press, 2012), 3–​28. 83   Michel Foucault, ‘Governmentality’, in Graham Burchell, Colin Gordon, and Peter Miller, eds, The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press, 1991), 87–​104. 84  Matthias Goldmann, Internationale öffentliche Gewalt. Handlungsformen internationaler Institutionen im Zeitalter der Globalisierung (Berlin: Springer, 2015), pp. 19 ff. 85   Juan H. Flores and Yann Decorzant, ‘Public borrowing in harsh times:  The League of Nations Loans revisited’, University of Geneva WPS 12091 (2012), , accessed 12 October 2016. 86  See e.g., Shelton, Commitment and Compliance; Joost Pauwelyn, Ramses A. Wessel, and Jan Wouters, eds, Informal International Lawmaking (Oxford:  Oxford University Press, 2012); Sabino Cassese, Bruno Carotti, Lorenzo Casini, Eleanora Cavalieri, and Euan MacDonald, eds, Global Administrative Law: The Casebook, 3rd edn (Rome: IRPA, 2012). 87   See e.g., Gregory C. Shaffer and Mark A. Pollack, ‘Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance’, Minnesota Law Review 94 (2010): 706–​99. 88  Goldmann, Internationale öffentliche Gewalt, pp. 95 ff.; on the last reason, see Jutta Brunnée, ‘Reweaving the Fabric of International Law? Patterns of Consent in Environmental Framework Agreements’, in Rüdiger Wolfrum and Volker Röben, eds, Developments of International Law in Treaty Making (Berlin: Springer, 2005), 101–​26.

matthias goldmann   461 These governance instruments would not be as popular as they are if they were devoid of effects on actors’ behaviour. And indeed, centralized governmental enforcement is by far not the only way to render them effective. Foucault’s analysis of the development of the modern welfare State reveals the subtle means by which governments nudge people. They comprise incentives, information, and indoctrination.89 Modern studies in motivational psychology have provided insights into why such instruments are effective. There is a scale of intermediate types of motivation besides the fear of hard sanctions.90 Although one should compare the motivations driving States with those of individuals only with careful consideration,91 it seems that similar forces are at work in respect of new governance instruments. Reputation,92 peer pressure, and market forces constitute sanctions that are often no less effective than enforcement. Another type of motivation is discursive. Discourse creates communicative pressure on people by defining the range of possible arguments.93 Finally, soft law and acts of information might frame the way we see the world and influence our learning and understanding.94 Given the significance of such governance instruments, it seems inappropriate for the sources doctrine to ignore them unless they have an immediate impact upon the traditional sources, for example when they midwife the emergence of customary law.95 This is a very rare event. One needs to recognize that an important assumption underlying the sources theory, the assumption that effectiveness means enforceability, no longer holds.

3. Towards a Concept of Authority If international law is supposed to effectively govern international affairs and to set out the criteria for what constitutes a legal (hence legitimate) or illegal (hence   Foucault, ‘Governmentality’.   Edward L. Deci and Richard M. Ryan, Intrinsic Motivation and Self-​Determination in Human Behavior (New York: Plenum, 1985); overview in Matthias Goldmann, ‘A Matter of Perspective: Global Governance and the Distinction between Public and Private Authority (and not Law)’, Global Constitutionalism 5 (2016): 48–​84. 91   See Anne van Aaken, ‘Behavioral International Law and Economics’, Harvard International Law Journal 55 (2014): 421–​81, 435 ff. 92  Guzman, How International Law Works; Schauer, The Force of Law, pp. 132–​5. 93   Ingo Venzke, How Interpretation Makes International Law. On Semantic Change and Normative Twists (Oxford:  Oxford University Press, 2012), p.  62; Ryan Goodman and Derek Jinks, Socializing States: Promoting Human Rights Through International Law (Oxford: Oxford University Press, 2013), p. 25 (‘acculturation’). 94   Armin von Bogdandy and Matthias Goldmann, ‘The Exercise of International Public Authority through National Policy Assessment. The OECD’s PISA Policy as a Paradigm for a New International Standard Instrument’, International Organizations Law Review 5 (2008): 241–​98. 95   See e.g., László Blutman, ‘In the Trap of a Legal Metaphor: International Soft Law’, International and Comparative Law Quarterly 59 (2010): 605–​24. 89

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462    sources in the meta-theory of international law illegitimate) act in international relations, it cannot further turn a blind eye on soft law and other governance instruments that are non-​enforceable in a traditional sense. Rather, it needs to recognize the authority of these instruments and integrate them into the sources theory. One option consists in expanding the existing sources theory. G. J. H. van Hoof demonstrated how, based on a Hartian concept of law, one could consider resolutions of the General Assembly as incorporating the consent necessary for the formation of binding international law.96 Whatever one thinks of the doctrinal merits of this proposal, it appears inadequate to lump together the wide variety of governance instruments in one single category of binding international law. This would not do justice to the differences in their real-​life effects, and consequently to the different legitimacy questions that these instruments may evoke. This is the reason why the proposal has been made to focus on international public authority instead of international law as the relevant concept that identifies effective governance instruments that require legitimacy.97 The concept of authority would complement, not replace, the sources doctrine.98 It constitutes a wider category that includes, and reaches beyond, the sources of international law. For this purpose, one should understand ‘authority’ as ‘the legal capacity to determine others and to reduce their freedom, i.e. to unilaterally shape their legal or factual situation’.99 A mechanism that can rightly be considered to shape a factual situation does not need to reach the level of physical sanctions. Rather, it is sufficient that the act gives rise to some form of power which the addressee can only avoid at some cost, be it reputational, discursive, ideational, financial, or other. The ramifications of the concept of authority as defined here have been set out in detail elsewhere.100 I should emphasize that not every instrument of global governance automatically counts as authority. Rather, it needs to pass a certain threshold. We define this threshold incrementally, applying a method of rational reconstruction, which allows identifying typical acts in the practice of international institutions that usually influence the legal or factual situation of their addressees in a certain way and with certain intensity. They therefore deserve recognition as ‘standard instruments’, and their legal framework needs to ensure their legitimacy and effectiveness.

  G. J. H. van Hoof, Rethinking the Sources of International Law (Deventer: Kluwer, 1983).   Armin von Bogdandy, Philipp Dann, and Matthias Goldmann, ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities’, German Law Journal 9 (2008): 1375–​1400. 98 99  Thirlway, The Sources, pp. 215–​20.   Bogdandy et al., ‘Developing the Publicness’. 100   Armin von Bogdandy, Matthias Goldmann, and Ingo Venzke, ‘From Public International to International Public Law:  Translating World Public Opinion into International Public Authority’, European Journal of International Law 28 (2017): 115–​45; Goldmann, Internationale öffentliche Gewalt, p. 359. 96 97

matthias goldmann   463 This proposal resembles the social approach to law-ascertainment advocated by Jean d’Aspremont, although it does not rely on the factual acceptance of certain types of instruments alone,101 but also on the reasons corroborating such acceptance, in line with the idea of rational reconstruction. It relies on an interpretative process that is not formal in a mechanical sense, but not entirely arbitrary either.102 The reasons corroborating the recognition of a certain type of standard instrument might often relate to the legitimacy requirements which that type of standard instrument needs to meet. What should that legitimacy be like? Should it be of a contractual character like in consent-​ based understandings of international law, or should it satisfy standards of democratic legitimacy? This brings me to the next issue.

IV.  The Legitimacy of the Sources of International Law 1. Public International Law, State Consent, and Functionalism Traditionally, the source doctrine rests on the assumption that State consent is necessary and sufficient for the adoption of international law. Public international law is called ‘public’ because it regulates relations between States as public entities, in ana­ logy to private international law’s interpersonal dimension. By contrast, the ‘public’ in public international law does not stand for a political community, as it is the case for domestic public law. Traditional international law allows States to coordinate without formulating a common purpose going beyond their mutual self-​interest. Hence, the creation of the sources needs to respect State consent, but not democratic principles.103 The VCLT reflects this insofar as its provisions on the conclusion of treaties emulate domestic contract law, not a legislative process. In line with this idea, international organizations in the twentieth century followed a functionalist logic. The masterminds behind the ‘move to international institutions’ put their hopes on de-​politicized institutions that would enhance welfare just because they were protected against the grip of government policies.104 The 102  D’Aspremont, Formalism, pp. 195 ff.   See ­chapter 17 by Jean d’Aspremont in this volume.   Samantha Besson, ‘Theorizing the Sources of International Law’, in Besson and Tasioulas, eds, The Philosophy of International Law, 163–​85, 164–​5. 104  Jan Klabbers, ‘The Emergence of Functionalism in International Institutional Law:  Colonial Inspirations’, European Journal of International Law 25 (2014): 645–​75. 101

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464    sources in the meta-theory of international law instruments produced by these institutions remained subject to full governmental control by the reigning principle of State consent. Democratic legitimacy seemed unnecessary.

2. The Demise of State Consent and Functionalism State consent and functionalism have faced serious problems since then. During the post-​war period, functionalist international organizations often failed to create peace and prosperity in the hyper-​politicized environment of the Cold War—​ despite the attempt to exclude politics from their operation. Downsized versions of functionalism advocated, for example, by Wolfgang Friedmann,105 also did not do the trick. They could not prevent the protracted economic crises of the 1970s, which called the post-​war welfare State model in question. There was a strong general sense that the welfare State was overburdened—​on both sides of the political spectrum.106 The historical answer to this dilemma was a move towards the liberalization of the economy and private initiative. International institutions quickly began promoting this move. What is now the G7 as an overarching international political formation began in that period, and the OECD and other organizations have increased their production of industrial standards since the 1980s. The end of the Cold War kicked off an institutional development of sorts, which saw the establishment of the World Trade Organization, the spread of bilateral investment treaties, and ultimately the creation of the International Criminal Court. The International Financial Institutions promoted the ‘Washington Consensus’ that enjoined a specific liberal economic model on many States, and new forms of governance beyond State control began to spread and engage in regulatory activities beyond the State.107 These organizations seemed to be in the service of a new community—​the international community, which tellingly appears in legal documents of the time, such as Article 59 of the UNCLOS, or Article 25 (1) (b) of the Articles on State Responsibility.108 It became the reference point for an increasing number of global public goods109 and  Friedmann, The Changing Structure, pp. 62–​4 (regional cooperation).  See only Jürgen Habermas, Legitimationsprobleme im Spätkapitalismus (Frankfurt am Main: Suhrkamp, 1973); Friedrich August von Hayek, Law, Legislation and Liberty, vol. 1, Rules and Order (London: Routledge, 1973). 107   Seminal: James N. Rosenau and Ernst-​Otto Czempiel, eds, Governance without Government: Order and Change in World Politics (Cambridge: Cambridge University Press, 1992). 108   International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Annex to UNGA Res. 56/​83 (12 December 2001), corrected by A/​56/​49 (vol. 1). 109  Nico Krisch, ‘The Decay of Consent:  International Law in an Age of Global Public Goods’, American Journal of International Law 108 (2014): 1–​40. 105

106

matthias goldmann   465 global law.110 In recognition of this fundamental change, Philip Allott has called the law relating to international organizations ‘international public law’.111 Now, the paradigm of State consent came under stress. There was clearly an autonomous role for international organizations and for governance structures escaping State control. Weaker States and weaker segments of the population felt that State consent did not give them control over decisions at the international level, which profoundly affected their lives. They sensed that these decisions tended to reflect the will of more powerful States. This anxiousness has culminated in anti-​ globalization protests and an increasing politicization of world society.112 It has led to a backlash against investment arbitration and made the conclusion of new trade agreements extremely difficult. State consent and traditional, arcane interstate negotiations often seem insufficient for legitimizing the conclusion of international agreements and decisions by international organizations and courts based on them.

3. Towards International Public Law International legal scholarship recognizes the fading capacity of State consent. ‘Legitimacy’ has become one of international law’s buzzwords of the past decade.113 In this context, legitimacy predominantly means democratic legitimacy, not State consent. Nevertheless, the crucial question is how one might square democratic legitimacy with the sources of international law. Several approaches in reaction to this challenge are on offer. Lon Fuller’s positive theory of natural law has enjoyed a revival in this context. Jutta Brunnée and Stephen Toope, Jan Klabbers, and Benedict Kingsbury have used it to further develop the sources doctrine.114 In simplifying terms, they define as international law those instruments which correspond to a series of Fuller-​inspired principles of publicness

 See Neil Walker, Intimations of Global Law (Cambridge:  Cambridge University Press, 2015), pp. 151 ff. 111   Philip Allott, The Health of Nations. Society and Law Beyond the State (Cambridge: Cambridge University Press, 2002), p. 297. 112   Michael Zürn, Martin Binder, and Matthias Ecker-​Ehrhardt, ‘International Authority and Its Politicization’, International Theory 4 (2012): 69–​106. 113   See e.g., Buchanan, ‘The Legitimacy of International Law’; Steven Wheatley, The Democratic Legitimacy of International Law (Oxford: Hart, 2010); c­ hapter 33 by Richard Collins and c­ hapter 34 by José Luis Martí in this volume. 114   Jutta Brunnée and Stephen Toope, Legitimacy and Legality in International Law. An Interactional Account (Cambridge: Cambridge University Press, 2010); Jan Klabbers, ‘Law-​ Making and Constitutionalism’, in Jan Klabbers, Anne Peters, and Geir Ulfstein, eds, The Constitutionalization of International Law (Oxford: Oxford University Press, 2009), 81–​125; Benedict Kingsbury, ‘The Concept of “Law” in Global Administrative Law’, European Journal of International Law 20 (2009): 23–​57. 110

466    sources in the meta-theory of international law that are meant to ensure their legitimacy. Consequently, these approaches appear to recognize as international law only those instruments which enjoy at least a weak form of democratic legitimacy. This leaves open what should happen with the many hard and soft instruments which are highly effective, hence authoritative means of governance, but do not pass the legitimacy threshold. Are they non-​binding? Or non-​existent? And what about international treaties of a purely contractual, bilateral character? A more reconstructive approach would first identify the instruments for which State consent is insufficient as a trajectory of legitimacy, and then seek to ensure that they enjoy at least some degree of democratic legitimacy. In other words, one needs to clearly identify the international legal rules (or other authoritative instruments) which require democratic legitimacy and therefore need to meet standards of transparency, participation, and accountability defined by the rules and principles of an emerging international public law. Which rules or authoritative instruments require democratic legitimacy? One might draw inspiration from the well-​known distinction between traité-​contrat and traité-​loi. It seems to me that the latter represents a common interest, which transcends the mutual self-​interest of the contracting parties.115 This distinction is epistemologically viable. It corresponds exactly to Habermas’ distinction between strategic and communicative action. The former is motivated by self-​interest, while the latter creates common interests. We experience this distinction in our everyday lives by contending claims of self-​interest and solidarity.116 This does not mean that self-​interest plays no role when deciding about matters of common interest. Of course, such decisions usually involve some logrolling and horse-​trading. But they also include ethical and moral considerations which transcend self-​interest and through which a community reproduces itself.117 Every instrument that claims to represent the common interest as defined here should therefore be considered an act of international public authority.118 This qualification applies across the sources of international law. Once an act has been qualified as such, it needs to respect standards of democratic legitimacy defined by international public law. Mere State consent will usually not suffice. Naturally, establishing law-​making procedures respecting democratic

115   In this sense Kingsbury, ‘The Concept of “Law” ’. However, he combines this concept of publicness with Fuller’s legitimacy criteria. See also Jacqueline Best and Alexandra Gheciu, ‘Theorizing the Public as Practices: Transformations of the Public in Historical Context’, in Best and Gheciu, eds, The Return of the Public in Global Governance (Cambridge: Cambridge University Press, 2014), 15–​43, 32, defining as public as ‘those goods, actors, or processes that are recognized by the community [. . .] as being of common concern’. 116  Habermas, Between Facts and Norms, ch. 3.1.2; Habermas, Theorie des kommunikativen Handelns, pp. 369 ff. 117  Habermas, Between Facts and Norms, ch. 4.3.1 and 4.3.2. 118   For a detailed explanation, see Goldmann, ‘A Matter of Perspective’.

matthias goldmann   467 legitimacy on the international level is not exactly a piece of cake.119 It raises serious questions about the existence of a public sphere beyond the State.120 It suffices to say that international public law needs to connect international public authority with the legitimizing potential of the domestic level. Two qualifications are in order. First, classifying an instrument as non-​public (or private, if you so wish) does not sanctify that act. Rather, it only means that different criteria will apply to that act. If such acts affect third parties beyond a certain level, either they need regulation, or, in case regulation is insufficient to counter such externalities, they should be prohibited. Conversely, if there are no serious externalities, consent may legitimize such forms of authority.121 Secondly, there are transnational formations pursuing a common purpose which are not composed of States, such as industry associations. In line with the above reasoning, one might consider acts of such groups as international public authority to the extent that they affect the members of that group and define its common interest. Carving out typologies of such instruments seems to be a necessary future task for the sources doctrine.

V. Conclusion The sources doctrine frames international law in decisive ways by requiring international lawyers to subscribe to a number of demanding assumptions. It obliges them to understand international law as autonomous, which is only possible if they consider principles of international law; it keeps them focused on traditional methods of enforcement, so they tend to overlook more subtle forms of authority; and it hypostasizes State consent instead of singling out instruments requiring democratic legitimacy. Further assumptions underlying the sources doctrine which have not been identified in this chapter include the distinction between general and specific obligations.122 As these assumptions tend to be problematic in multiple ways, the sources doctrine is in utter need of reform. Otherwise, the sources doctrine runs the risk of becoming normatively unconvincing, or factually misleading, or both. This would have dramatic consequences for international law, bereaving it of its   See e.g., Besson, ‘Institutionalising global demoi-​cracy’.   See Jürgen Habermas, ‘Hat die Konstitutionalisierung des Völkerrechts noch eine Chance?’, in Habermas, ed., Der gespaltene Westen (Berlin: Suhrkamp, 2004), 113–​92. 121   David Lefkowitz, ‘The Sources of International Law: Some Philosophical Reflections’, in Besson and Tasioulas, eds, The Philosophy of International Law, 187–​203, 193. 122   Besson, ‘Theorizing’, pp. 168–​9. 119

120

468    sources in the meta-theory of international law capacity to rationalize situations of fundamental disagreement on a normative or factual level. This chapter has devised avenues for how the sources doctrine might meet these challenges.

Research Questions • Which explicit or implicit presuppositions underlie the sources doctrine? • Given contemporary challenges to these presuppositions, how should the sources theory develop?

Selected Bibliography Aspremont, Jean d’, Formalism and the Sources of International Law. A  Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). Besson, Samantha, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2010), 163–​85. Buchanan, Allen, ‘The Legitimacy of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2010), 79–​96. García-​Salmones Rovira, Mónica, The Project of Positivism in International Law (Oxford: Oxford University Press, 2013). Goldmann, Matthias, ‘A Matter of Perspective:  Global Governance and the Distinction between Public and Private Authority (and not Law)’, Global Constitutionalism 5 (2016): 48–​84. Kennedy, David, ‘The Sources of International Law’, American University Journal of International Law and Policy 2 (1987): 1–​96. Kingsbury, Benedict, ‘The Concept of “Law” in Global Administrative Law’, European Journal of International Law 20 (2009): 23–​57. Klabbers, Jan, ‘Law-​Making and Constitutionalism’, in Jan Klabbers, Anne Peters, and Geir Ulfstein, eds, The Constitutionalization of International Law (Oxford: Oxford University Press, 2009), 81–​125. Koskenniemi, Martti, From Apology to Utopia. The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) (reissue with a new epilogue). Von Bogdandy, Armin, Philipp Dann, and Matthias Goldmann, ‘Developing the Publicness of Public International Law:  Towards a Legal Framework for Global Governance Activities’, German Law Journal 9 (2008): 1375–​1400.

Chapter 22

SOURCES IN THE META-​T HEORY OF INTERNATIONAL LAW HERMENEUTICAL CONVERSATIONS

Alexandra Kemmerer

Viel hat von Morgen an, /​Seit ein Gespräch wir sind und hören voneinander, /​Erfahren der Mensch; bald sind wir aber Gesang. Man has learned much since morning, /​For we are a conversation, and we can listen /​To one another. Soon we’ll be song. Friedrich Hölderlin1

  Friedrich Hölderlin, ‘Friedensfeier’, in Hölderlin, ed., Sämtliche Werke, 6 Bände, vol. 2 (Stuttgart: Cotta, 1953), p. 430. Translation: James Mitchell, Poems of Friedrich Hölderlin: The Fire of the Gods Drives Us to Set Forth by Day and by Night (San Francisco: Ithuriel’s Spear, 2007), pp. 58–​69, 65. 1

470    sources in the meta-theory of international law Seit ein Gespräch wir sind /​an dem /​wir würgen /​an dem ich würge, /​das mich /​aus mir hinausstieß, dreimal, /​viermal. /​Im Ohr /​wirbelnde /​Schläfenasche, die /​eine, letzte /​Gedankenfrist duldend, /​Feuchtes, viel. Since we have been a conversation /​on which /​we choke, /​on which I choke, /​that I /​cough up, three times, /​four times. /​In the ear /​whirling /​skull-​ashes, that /​endure /​one, last /​thought-​verge. /​Soddenness, much. Paul Celan2

I. Introduction The past decade has seen the publication of an unprecedented number of monographs, articles, and, most recently, carefully edited volumes on interpretation in international law.3 As so often, scholarly productivity indicates crisis. The ascertainment of international legal rules, the identification of the sources of international law, has become ever more challenging. In our ‘age of pluralized normativity’, ‘both the norm-​making processes and the norms produced thereby at the international level have undergone a profound pluralization’.4 New forms of practice shape the development of international law, deriving from sources other than treaties. Beyond fragmentation and flexibility, there are other even more ambivalent observations to be made: ‘[l]‌anguage and legal concepts have been hijacked and international legality claimed regardless of their compliance with formal legal requirements’.5   Paul Celan, ‘Todtnauberg’ (early draft), in Celan, ed., Lichtzwang. Vorstufen—​Textgenese—​Endfassung. Tübinger Ausgabe (Frankfurt am Main: Suhrkamp, 2001), 49. Translation: Werner Hamacher (and Heidi Hart), ‘Wasen: On Celan’s “Todtnauberg” ’, Yearbook of Comparative Literature 57 (2011): 15–​54, 30. 3   Just to glance over the tip of the iceberg: Robert Kolb, Interprétation et création du droit international. Esquisse d’une herméneutique juridique moderne pour le droit international public (Bruxelles: Bruylant, 2006); Ulf Linderfalk, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention of the Law of Treaties (Dordrecht: Springer, 2007); Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (Oxford: Oxford University Press, 2008); Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford: Oxford University Press, 2009); Richard K. Gardiner, Treaty Interpretation (Oxford: Oxford University Press, 2010); Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011); Ingo Venzke, How Interpretation Makes International Law (Oxford: Oxford University Press, 2011); Eirik Bjorge, The Evolutionary Interpretation of Treaties (Oxford: Oxford University Press, 2014); Hugh Thirlway, The Sources of International Law (2014); Andrea Bianchi, Daniel Peat, and Matthew Windsor, eds, Interpretation in International Law (Oxford: Oxford University Press, 2015); Christian Djeffal, Static and Evolutive Treaty Interpretation. A Functional Reconstruction (Cambridge: Cambridge University Press, 2016). See also ­chapter 19 by Ingo Venzke in this volume. 4  D’Aspremont, Formalism, p. 221. 5   Christine Chinkin, ‘Rethinking Legality/​Legitimacy after the Iraq War’, in Richard Falk, Mark Jurgensmeyer, and Vesselin Popovski, eds, Legality and Legitimacy in Global Affairs (New York: Oxford 2

alexandra kemmerer   471 Times of change are times of reflection. The bird’s-​eye view from a meta-​level opens new perspectives on traditional concepts and familiar practices. A meta-​ theoretical approach to sources holds, as Matthias Goldmann emphasizes in his chapter, the promise of ‘identifying the presuppositions underlying the sources doctrine, i.e. the explicit or implicit assumptions that international lawyers make when they identify, interpret, and apply the sources of international law in their daily practice’.6 Goldmann does take vast advantage of the (re-​)constructive potential of his meta-​theoretical stance: infusing the traditional sources theory with a strong dose of publicness, he points to possible avenues for international lawyers to rethink the sources theory in a democratic key. While I tend to agree that ‘theorizing international law does not amount to descriptive sociology, but sets standards for a coherent and legitimate international legal practice’,7 this chapter shall take a step back, make room for a plurality of (re-​)constructive theoretical and doctrinal endeavours, and create a space for reflection. Any meta-​ theoretical investigation is an exercise in interpretation. Meta-​ theory illuminates various ways in which main theories of international law have addressed and understood sources of international law. Meta-​theory allows the theorist to point to dark sides, bring blind spots to light, and make silences heard. It opens reflexive spaces, allows for contextual analysis, highlights differences and common features in theoretical (re-​)constructions of sources, and situates theories in time and space. It evokes the universal and the particular, unveils the particular masquerading as the universal. As doctrinal concepts, sources of international law are tainted by historical experiences of hegemony and subordination, oppression and violence—​as is the theory of sources. But how are we to deal adequately with Eurocentrism and Western bias?8 With discrimination based on class, sex, gender, race, religion? Such a task presents significant challenges for the theory of sources.9 And it is here where history and theory are closely intertwined. Meta-theoretical perspectives on sources in the main theories of international law encompass meta-historical perspectives, and vice versa.10 And yet, ‘doctrine’ is not only the space in which international history is transformed into international legal history, but also the space where political theory (and normative philosophy) is transformed into international legal theory—​by a methodology shaped by and for the classic, or orthodox approach to sources. We should University Press, 2012), 219–​47, 238, with reference to Martti Koskenniemi, ‘ “The Lady Doth Protest Too Much”: Kosovo and the Turn to Ethics in International Law’, Modern Law Review 65 (2002): 159–​75.   See ­chapter 21 by Matthias Goldmann in this volume, p. 447.   Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–​85, 166. 8  See Martti Koskenniemi, ‘Histories of International Law:  Dealing with Eurocentrism’, Rechtsgeschichte 19 (2011): 152–​76. 9   Rose Parfitt, ‘The Spectre of Sources’, European Journal of International Law 25 (2014): 297–​306. 10   On meta-​historical perspectives, see c­ hapter 11 by Anthony Carty and Anna Irene Baka in this volume. 6 7

472    sources in the meta-theory of international law neither discard classic methodology and orthodox doctrine, nor protect it from critical and/​or transdisciplinary challenges, but rather put it into perspective(s). Into contextual perspectives, that is. Transnational, transregional, transtemporal, transcivilizational, transinstitutional. In this chapter, drawing on the hermeneutic philosophy, the philosophical hermeneutics of Hans-​Georg Gadamer, and the writings of his most perceptive readers in international law, I shall introduce a concept of reflexive situatedness allowing for a constructive contextualization of sources and their interpreters in our ‘normative pluriverse’.11 Following the traces of international law’s current ‘turn to interpretation’ (section II: Turn to Interpretation) and a reading of international law as ‘hermeneutical enterprise’ (section III: The Hermeneutical Enterprise), I shall introduce various core elements of Gadamer’s philosophical hermeneutics and discuss some of the arguments of his critics, most prominently Jürgen Habermas (section IV: Prejudice, Conversation, and Phronesis). My assessment of the limits and potentials of Gadamerian philosophical hermeneutics prepares the ground for an analysis of the writings of international lawyers who have developed theories of international legal interpretation inspired by the work of the German philosopher—​and particularly for a closer look at the writings of Outi Korhonen (section V: Situationality), linking her concept of situationality to an emphasis on context(s) that is always defined by situatedness (section VI: Context). I shall then discuss the rhetorical dimension of Gadamer’s work, developed in the last years of his life, when his understanding of interpretation as a rhetorical accomplishment (probably closely intertwined with his post-​retirement experience as a multilingual transatlantic traveller) gave rise to a rich conception of critical hermeneutics ‘that should finally put to rest the canard that philosophical hermeneutics is politically naïve and quiescent’ (section VII: Conversations).12 The idea of conversation became central to Gadamer’s hermeneutics.13 His conversational philosophical hermeneutics, until now not yet fully explored by his commentators, opens new perspectives for a contextual theory and praxis of international legal interpretation that brings together various disciplinary perspectives and cultural experiences, and thereby allows for a more nuanced and dynamic understanding of sources and of their interpreter within her interpretative community (VIII: Perspectives).

  Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford: Oxford University Press, 2012), p. 13. 12  Francis Joseph Mootz III, ‘Gadamer’s Rhetorical Conception of Hermeneutics as the Key to Developing a Critical Hermeneutics’, 14 December 2008 , p. 1, accessed 11 February 2017. See also Jeff Malpas, ‘Hans-​Georg Gadamer’, in Edward N. Zalta, ed., The Stanford Encyclopedia of Philosophy (Winter 2016 Edition), , accessed 2 February 2017. 13   See Mootz, ‘Hans-​Georg Gadamer’, p.  1; see also Andrzej Wierciński, ‘ “Sprache ist Gespräch”: Gadamer’s Understanding of Language as Conversation’, in Wierciński, ed., Gadamer’s Hermeneutics and the Art of Conversation (Münster: Lit Verlag, 2011), 37–​58. 11

alexandra kemmerer   473

II.  Turn to Interpretation It is commonplace that ‘international law does not exist without interpretation’,14 that ‘interpretation permeates all of legal life’,15 that ‘the significance of interpretation to the professional practice and academic study of international law is inescapable’.16 And yet, until the 1990s international lawyers were not overly passionate about matters of interpretation—​with a short, but lively intermezzo in the late 1960s, prompted by the International Law Commission’s work on treaty interpretation. ‘Occasionally scholars would write something on the interpretation of treaties, typically in the form of fairly brief articles and often inspired by a particular episode or incident, but there was fairly little attention to doctrines of interpretation in the abstract, and little enthusiasm for establishing firm legal rules to structure the process of interpretation.’17 The four special rapporteurs appointed by the International Law Commission (ILC) to facilitate the codification of the law of treaties (James Brierly, Hersch Lauterpacht, Gerald Fitzmaurice, and Humphrey Waldock) did not spill much ink on refined reflections on the practice and process of interpretation.18 But they were part of a vibrant legal-​political/​legal-​cultural debate that shaped the unified rules of interpretation codified in Articles 31–​33 of the Vienna Convention on the Law of Treaties (VCLT)19—​and produced a host of publications in many languages and from various national, cultural, epistemological, and political perspectives.20 Since it was concluded in 1969, ‘the rules contained in the VCLT, and the cluster of concepts therein—​including “ordinary meaning”, “context”, and “object and purpose”—​have provided a focal point for interpretation in international law, and a source of constancy for the international legal profession’.21 Traditionally, interpretation in international law has been understood as a process of assigning meaning   Duncan B. Hollis, ‘The Existential Function of Interpretation in International Law’, in Bianchi et  al., eds, Interpretation in International Law, 78–​110, 78. See also ­chapter  19 by Ingo Venzke and ­chapter 20 by Duncan B. Hollis in this volume. 15  Gleider I. Hernández, ‘Interpretation’, in Jörg Kammerhofer and Jean d’Aspremont, eds, International Legal Positivism in a Postmodern World (Cambridge: Cambridge University Press, 2014), 317–​48, 348. 16  Daniel Peat and Matthew Windsor, ‘Playing the Game of Interpretation. On Meaning and Metaphor in International Law’, in Bianchi et al., eds, Interpretation in International Law, 3–​57, 3. 17  Jan Klabbers, ‘Book Review of Philip Liste, Völkerrecht-​Sprechen, and Ingo Venzke, How Interpretation Makes International Law’, European Journal of International Law 24 (2013): 718–​22, 718. 18   ibid., pp. 718–​19. 19   United Nations Conference on the Law of Treaties (UNCLOT), First Session, Official Records (1968), UN Doc. A/​CONF.39/​11. Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331). 20   For an overview of the possibilities to read the debate, see Christian Djeffal, ‘Establishing the Argumentative DNA of International Law: A Cubist View on the Rule of Treaty Interpretation and its Underlying Legal Culture(s)’, Transnational Legal Theory 5 (2014): 128–​57. 21   Peat and Windsor, ‘Playing the Game of Interpretation’, p. 3. 14

474    sources in the meta-theory of international law to texts with the objective of establishing rights and obligations.22 Tradition, as we will see in the following paragraphs of this chapter, is a strong guiding force. No surprise, then, that—whenever it came to the broader field of the interpretation of sources—a strong traditional bias led to a near-​exclusive focus on one type of legal instrument (treaties), and one particular interpretive methodology (VCLT).23 Lawyers like certainty, and the professional temptation to interpret Articles 31–​33 VCLT as abstract rules of interpretation, constituting ‘the generally accepted legal framework of constitutional significance’,24 and to consider major controversies relating to interpretation as ‘finally resolved’,25 seems all too human. But even the ILC itself had been more modest in the drafting process of the VCLT, and the International Court of Justice proved to be hesitant to treat Articles 31–​33 as a ‘one-​stop shop’ for all matters of legal interpretation.26 The times, they were changing.27 They are changing.28 The promise (and subsequent disillusionment) of a new world order after the end of the Cold War, the phenomenon of an ever more ‘pluralized normativity’,29 and the increasing specialization of international law that led to its often described fragmentation,30 prompted and encouraged international lawyers to take a fresh look at interpretation and to break free from the ‘straightjacket both for conceptual thinking and for a more realistic practice by courts and tribunals’.31 Interpretation now pertains to sources of international law other than treaties, and these are increasingly given attention. A central challenge lies in ‘how best to conceptualize and take account of the new forms of practice that in fact characterize the development of contemporary international law’.32 It prompts us to ‘provoke a reappraisal of interpretation in international law, both inside and outside the VCLT framework’ and to ‘examine how international law might gain insights from disciplines with analogous issues, such as literary theory, the philosophy of language and philosophical hermeneutics’.33 22   Matthias Herdegen, ‘Interpretation in International Law’, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2013), , accessed 1 June 2017. 23   Peat and Windsor, ‘Playing the Game of Interpretation’, p. 1. 24  Orakhelashvili, The Interpretation, p. 317. 25  Linderfalk, On the Interpretation of Treaties, p. 3. 26   Hernández, ‘Interpretation’, pp. 325–​6. See also Van Damme, Treaty Interpretation. 27   Pointedly: Klabbers, ‘Book Review’, pp. 719–​20. 28   On the ‘gradual change from formalism to informality’ in the WTO Appellate Bodies’ interpretative techniques, see Van Damme, Treaty Interpretation, pp. 213–​74, et passim. 29  D’Aspremont, Formalism, p. 221; the term is further elaborated on pp. 221–​4. 30   Seminal: Report of the Study Group of the International Law Commission on the Fragmentation of International Law, finalized by Martti Koskenniemi, 13 April 2006, UN Doc. A/​CN.4/​L.682. 31  Joseph H.  H. Weiler, ‘Prolegomena to a Meso-​Theory of International Treaty Interpretation at the Turn of the Century’, NYU Institute for International Law and Justice Legal Theory Colloquium:  Interpretation and Judgment in International Law (NYU Law School, 14 February 2008), p. 5. 32   Campbell McLachlan, ‘The Evolution of Treaty Obligations in International Law’, in Georg Nolte, ed., Treaties and Subsequent Practice (Oxford: Oxford University Press, 2013), 69–​81, 81. 33   Peat and Windsor, ‘Playing the Game of Interpretation’, p. 4.

alexandra kemmerer   475 Or socio-​legal theory and historical sociology.34 And to voice a ‘plea for methodological self-​reflexivity’.35 Authors take the challenge of critical legal studies seriously, engage with the indeterminacy of international law, with the inter­ pretation of international law as a banal struggle for power, and as a sophisticated language game.

III.  The Hermeneutical Enterprise Interpretation in international law is not just ‘a specific epistemological tool’, but an intellectual praxis raising questions (and sometimes providing answers) as to why we interpret, and with what authority.36 It is about meaning and understanding. International law is, as is law tout court, a ‘hermeneutical enterprise’.37 It seems rather irritating then, at first glance, that philosophical hermeneutics has been largely ignored in international law.38 Korhonen’s work on international legal interpretation and situationality, on the situatedness of the international lawyer, profoundly inspired and shaped by the hermeneutics of Gadamer, is a remarkable exception.39 In addition, there are some shorter references here and there.40 And there is a thoughtful piece by Emmanuel Voyiakis arguing that textual fidelity and evolutive interpretation can go together as ‘essential and mutually dependent dimensions of 34  Grégoire Mallard, ‘Crafting the Nuclear Regime Complex (1950–​ 1975):  Dynamics of Harmonization of Opaque Treaty Rules’, European Journal of International Law 25 (2014): 445–​72. 35 36  ibid., p. 33.   Hernández, ‘Interpretation’, p. 317. 37   Andreas Paulus, ‘Book Review of Outi Korhonen, International Law Situated’, European Journal of International Law 12 (2001): 1027–​30, 1027. 38   See e.g., Fouad Zarbiyev, ‘Review—​Robert Kolb, Interprétation et création du droit international’, Leiden Journal of International Law 22 (2009): 211–​16, 212: ‘it is difficult to understand how a work expressly bearing on legal hermeneutics can, without any justification whatsoever, neglect to use modern philosophical hermeneutics’; Jörg Kammerhofer, ‘Review—​Alexander Orakhelasvili, The Interpretation of Acts and Rules’, European Journal of International Law 20 (2009): 1282–​6, 1284: ‘theories of hermeneutics or language theory have not even been mentioned, much less discussed . . . the unquestioned adoption of the plain meaning of doctrine in the face of all those who have ventured further into the theoretical realm is perhaps too problematic to be upheld’ (quoted after Peat and Windsor, ‘Playing the Game of Interpretation’, p. 14, n. 90). 39  Outi Korhonen, International Law Situated. An Analysis of the Lawyer’s Stance Towards Culture, History and Community (The Hague:  Kluwer Law International, 2000); Outi Korhonen, ‘New International Law:  Silence, Defence or Deliverance?’, European Journal of International Law 7 (1996): 1–​28. 40   See e.g., Stéphane Beaulac, The Power of Language in the Making of International Law. The Word “Sovereignty” in Bodin and Vattel and the Myth of Westphalia (Leiden: Martinus Nijhoff, 2004), pp. 58–​62; and Ulrich Fastenrath, Lücken im Völkerrecht. Zu Rechtscharakter, Quellen, Systemzusammenhang, Methodenlehre und Funktionen des Völkerrechts (Berlin: Duncker & Humblot, 1991), pp. 73–​8, 173–​6.

476    sources in the meta-theory of international law international legal interpretation under the lens of Gadamerian philosophical hermeneutics’.41 Otherwise, ‘hermeneutics’ seems merely to be used as a synonym for ‘interpretation’.42 Hermeneutics, and even more philosophical hermeneutics, does not provide a method for ‘correct’ readings and authoritative interpretations.43 Therefore, the notable absence of philosophical hermeneutics in international law, irritating at first, is no coincidence at all. Andreas Paulus introduces his review of Korhonen’s book with an, at first glance, somewhat opaque sentence. But he is up to something. ‘Although, or perhaps because, law is largely a hermeneutical enterprise, the insights of philosophical hermeneutics have had only limited impact on legal theory’,44 reads his opening, and I take the liberty to make two small additions to Justice Paulus’ ouverture in order to clarify my reading: although, or perhaps because, international law is largely a hermeneutical enterprise, the insights of philosophical hermeneutics have had only limited impact on international legal theory. Hic sunt leones. And the editors of Interpretation in International Law—​just setting out on what is possibly a first exploration into Gadamerian hermeneutics, in the introductory chapter of their rich volume, trying to make up, as editors sometimes must do, for shortcomings and lacunae of their contributors—​show an instinctive grasp of the salience of philosophical hermeneutics that is implicitly invoked here by Paulus. And of its inherent risks. In the footsteps of the philosopher from Heidelberg, we might not end up on a peaceful via media (or Philosophenweg) between determinacy and indeterminacy, overlooking a romantic river valley, but rather end up in dark forests, or deep seas: If insights from the philosophy of language, critical legal studies, and literary theory are the ‘devil’ troubling the straightforward ascertainment of meaning in international law, then philosophical hermeneutics is the ‘deep blue sea’. Common to both the ‘linguistic turn’ and philosophic hermeneutics is a decisive turn away from authorial intent. Yet philosophical hermeneutics in particular necessitates a shift in focus from the ‘object of interpretation—​the text and its sense—​to the activity of interpreting—​the process of sense-​making. It emphasizes what the interpreter contributes to interpretation and the creation of meaning, rather than what the text offers the interpreter. In the context of legal interpretation, this leads to a corresponding shift from analysis conducted in a positivist framework to an approach that treats law itself as an interpretive discipline.45

This is about interpretation. About the interpreters. About us. About our hermeneutical experiences. About text(s) and context(s). Gadamer’s philosophical hermeneutics create spaces for various disciplinary perspectives and cultural experiences. 41   Emmanuel Voyiakis, ‘International Law, Interpretative Fidelity and the Hermeneutics of Hans-​ Georg Gadamer’, German Yearbook of International Law 54 (2011): 385–​420. 42   See Weiler, ‘Prolegomena’. 43  Gregory Leyh, ‘Introduction’, in Leyh, ed., Legal Hermeneutics. History, Theory, and Practice (Berkeley: University of California Press, 1992), xi–​xix, xvii. 44   Paulus, ‘Book Review’, p. 1027. 45   Peat and Windsor, ‘Playing the Game of Interpretation’, p. 13.

alexandra kemmerer   477 For transnational, transregional, transtemporal, transcivilizational, transinstitutional encounters. His late conversational hermeneutics allows for a perceptive and insightful meta-theoretical approach to sources, and for a more nuanced understanding of clear, ambiguous, or even opaque legal provisions.

IV.  Prejudice, Conversation, and Phronesis At the core of Gadamer’s philosophical hermeneutics lies his positive conception of prejudice (Vorurteil) as pre-​judgement, drawing from Martin Heidegger’s notion of the ‘fore-​structures’ of understanding, of our prior hermeneutical situatedness. Instead of identifying bias as a problem, Gadamer takes issue ‘directly with this view of prejudice and negative connotations often associated with the notion, arguing that, rather than closing us off, our prejudices are themselves what opens us up to what is to be understood’.46 In his opus magnum Wahrheit und Methode (Truth and Method), Gadamer redeploys the notion of prior hermeneutical situatedness, of being in time, as it was carved out by his teacher Heidegger in Sein und Zeit (Being and Time), first published in 1927. As a special feature of the hermeneutical circle, the prejudgement opens a space for critical reflection—​and of possible revision. A space for understanding (Verstehen). Gadamer defines interpretation not as a method to be applied whenever a text appears obscure or ambiguous, but as a way of being. Context matters. Understanding recorded expressions cannot be accomplished by merely referring to the writer, the surrounding circumstances, and the originally addressed audience.47 Equally important is the situation of the reader who, no less than the text, stands within a given historical context.48 Understanding is explication and, simultaneously, application. Interpretation is ‘a (never complete) fusing of the horizons of the text and the reader, with the former having an effective history constituted by past interpretations and the latter having a prejudiced   See Malpas, ‘Hans-​Georg Gadamer’.  Beaulac, The Power of Language, p.  59, with reference to Richard E. Palmer, Hermeneutics—​ Interpretation Theory in Schleiermacher, Dilthey, Heidegger, and Gadamer (Evanston:  Northwestern University Press, 1969), pp. 176 ff. 48   Hans-​Georg Gadamer, Truth and Method, rev. trans. by Joel Weinsheimer and Donald G. Marshall, 2nd rev. edn (New  York:  Continuum, 1989), p.  307; Hans-​Georg Gadamer, Wahrheit und Methode. Grundzüge einer philosophischen Hermeneutik, Gesammelte Werke, Band 1 (Tübingen: Mohr Siebeck, 2010), p. 314. 46 47

478    sources in the meta-theory of international law forestructure of meaning that confronts the text in the form of a question’.49 Gadamer concludes: Our consideration of the significance of tradition in historical consciousness started from Heidegger’s analysis of the hermeneutics of facticity and sought to apply it to a hermeneutics of the human sciences. We showed that understanding is not a method which the inquiring consciousness applies to an object it chooses and so turns it into objective knowledge; rather, being situated with an event of tradition, a process of handing down, is a prior condition of understanding. Understanding proves to be an event, and the task of hermeneutics, seen philosophically, consists in asking what kind of understanding, what kind of sciences it is, that is itself advanced by historical change.50

Gadamer’s theory prompted strong criticism from very different camps: the Italian legal historian Emilio Betti argued that an objective interpretation of history (and text) is possible, rejecting Gadamer’s approach as being relativism without any standards. Betti rejected the fusion of different types such as legal and historical interpretation, and insisted on the distinction between interpretation (Auslegung) and the interpreter’s role in understanding (Sinngebung).51 Jürgen Habermas criticized Gadamer’s ‘ideological conservatism’, seeing his rehabilitation of prejudice as a positive evaluation of the role of authority and tradition as legitimate sources of knowledge as an obstacle to critical reflection and emancipation. Habermas rejects Gadamer’s ontological approach and ‘in this context champions rational self-​reflection as the gateway to complete rational transparency and hence also to human freedom and emancipation’.52 Habermas states: ‘Gadamer’s prejudice for the rights of prejudices certified by tradition denies the power of reflection. The latter proves itself, however, in being able to reject the claim of tradition. Reflection dissolves substantiality because it not only confirms, but also breaks up, dogmatic forces. Authority and knowledge do not converge . . . ’ .53   Francis Joseph Mootz III, ‘Interpretation’, in Austin Sarat, Matthew Anderson, and Cathrine O. Frank, eds, Law and the Humanities. An Introduction (Cambridge: Cambridge University Press, 2010), 339–​76, 356. 50  Gadamer, Truth and Method, p. 307; Gadamer, Wahrheit und Methode, p. 314. 51  Emilio Betti, Die Hermeneutik als allgemeine Methodik der Geisteswissenschaften, 2nd edn (Tübingen: Mohr Siebeck, 1962), pp. 34–​5. I will limit my considerations to the debates with Betti and Habermas, leaving aside the equally interesting engagement between Gadamer and Jacques Derrida, the interventions by Paul Ricoeur, the reflections by Richard Rorty, and other communications that would merit more attention. 52   Fred R. Dallmayr, ‘Borders on Horizons—​Gadamer and Habermas Revisited’, Chicago-​Kent Law Review 76 (2000): 825–​51, 841. 53   Jürgen Habermas, ‘A Review of Gadamer’s Truth and Method’, in Fred R. Dallmayr and Thomas A. McCarthy, eds, Understanding and Social Inquiry (Notre Dame: University of Notre Dame Press, 1977), 335‒63, 358. The review was first published in German in Philosophische Rundschau (1967), then included in Habermas, ed., Zur Logik der Sozialwissenschaften (Frankfurt am Main: Suhrkamp, 1970), 251–​90. From the many contributions on the Habermas–​Gadamer–​Debate, see e.g., Jack Mendelson, ‘The Habermas–​Gadamer-​Debate’, New German Critique 18 (1979):  44–​73; Dallmayr, ‘Borders on Horizons’. 49

alexandra kemmerer   479 A central point in Gadamer’s thinking, as well as in his encounters with his critics, is his claim for the universality of hermeneutics: not only is language the universal horizon of hermeneutic experience, but hermeneutic experience is also itself universal, it is our fundamental mode of being in the world.54 However, as part of a continuing human experience, hermeneutical understanding is no abstract meta-​theory, no universal framework with similar ambitions as Kantian or Neo-​Kantian types of rationalism or versions of structural social analysis. ‘In contrast to these schemas, hermeneutics has to pursue a more subdued, and partially inductive, path; shunning meta-​vistas, universalism in this case can only mean a particular openness and responsiveness: an openness to the diverse horizons “addressing” or impinging on human understanding.’55 Gadamer invokes the notion of ‘hermeneutical experience’, pointing to the open-​ended, horizontal character of human understanding, denoting a primary mode of embeddedness, with language as the matrix of human being-​ in-​the-​world.56 Language is ‘a gateway to infinite explorations’, history a ‘resonance chamber’, a space for distance and reflection.57 Gadamer’s theory remains a work in progress, with ever new—​and ever more dialogical and hence critical—​engagements with the notion of experience: Hermeneutic philosophy understands itself not as an absolute position but as a way of experience. It insists that there is no higher principle than holding oneself open in a conversation. But this means: Always recognize in advance the possible correctness, even the superiority of the conversation partner’s position. Is this too little? Indeed, this seems to me the kind of integrity one can demand only of a professor of philosophy. And one should demand as much.58

The dialectical structure of his theory is a legacy of Gadamer’s own history, of his early engagement with Plato (and Platonic Dialogues) in both his doctoral and habilitation dissertations.59 The dialogic movement of Platonic questioning opens a way of understanding that is equally dynamic and contextual. Another concept of Greek thought that Gadamer took up, influenced by Heidegger, is the idea of phronesis (‘practical wisdom’) that appears in book V of Aristotle’s Nicomachean Ethics. The concept of phronesis corresponds to Platonic dialectics, gives emphasis to our practical Dasein (‘being in the world’) and constitutes a mode of insight into our concrete situation and hence a mode of self-​knowledge.60 Outi Korhonen characterizes phronesis as ‘an ability to be in dialogue’—​in contrast to tekhne not learned, but intuitive.61 Ronald Dworkin cites Gadamer approvingly in his Law’s Empire,62   See Malpas, ‘Hans-​Georg Gadamer’. For a profound critique, see Chrysostomos Mantzavinos, Naturalistic Hermeneutics (Cambridge: Cambridge University Press, 2005), pp. 58–​61. 55 56 57   Dallmayr, ‘Borders on Horizons’, p. 832.  ibid.   ibid., pp. 833–​4. 58  Hans-​ Georg Gadamer, ‘On the Origins of Philosophical Hermeneutics’, in Gadamer, ed., Philosophical Apprenticeships, trans. Robert R. Sullivan (Cambridge: MIT Press, 1985), 177–​93, 189. 59 60   See Malpas, ‘Hans-​Georg Gadamer’.  ibid. 61   Korhonen, ‘New International Law’, p. 13. 62   Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), pp. 55, 62. 54

480    sources in the meta-theory of international law with his plea for an interpretive ethics. But Gadamer’s thoughtful and considerate judge, Hermes,63 is not Dworkin’s super-​justice Hercules: ‘[r]‌ather than Dworkin’s Hercules believing that he can discern the best means of advancing the law with coherence and integrity, Gadamer’s Hermes is wary of being more than an imperfect messenger who must recognize the need to place his own presuppositions at risk in response to the legal tradition’.64

V. Situationality Lauterpacht, well aware of the crucial role of the interpreter (and not coincidentally tying together interpretation and adjudication), asserted that rules of interpretation are ‘not the determining cause of judicial decision, but the form in which the judge cloaks a result arrived at by other means’.65 Jan Verzijl also, as Joseph Weiler observes,66 casts a realist eye on the indeterminacy of treaty interpretation: ‘[e]‌very judge—​this is never more clearly realized until one is faced personally with difficult decisions—​when he draws up his judgement is already prejudiced, in the sense that at that moment—​directed by an intuitive, unverifiable preference, which may be obscure to himself—​he has already chosen the starting point decisive to the judgement’.67 The ‘self-​awareness and boldness of these two writers in acknowledging the indeterminacy’,68 long before another generation’s critical voices were to be heard, highlights a profound awareness of their situatedness as interpreters of international law. The interpreter cannot escape his biases. Yet, both authors’ awareness of this does not automatically indicate an engagement with prejudice as a process of critical reflection and constructive readjustment. Nor did we see a host of such a decidedly constructive engagement in the wave of new approaches to international law, inspired by the Critical Legal Studies movement. The dilemma of objectivity and subjectivity, idealism and relativism, apology and

63   The origin of the term ‘hermeneutics’ is often traced to the Greek god Hermes, who was, among other things, the inventor of language and an interpreter, or mediator between gods and men. 64   Mootz, ‘Interpretation’, p. 359. 65  Hersch Lauterpacht, ‘Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’, British Yearbook of International Law 26 (1949): 48–​85, 53 (emphasis added). 66   Weiler, ‘Prolegomena’, pp. 5–​6. 67   Jan H.  W. Verzijl, The Jurisprudence of the World Court:  A  Case by Case Commentary, vol. 1 (Leiden: A. W. Sijthoff, 1965), p. 505. 68   Weiler, ‘Prolegomena’, p. 6.

alexandra kemmerer   481 utopia had been uncovered, foundational controversies pointed to the inescapability of a binary choice between objectivism and nihilism.69 But in the wake of the critical challenge, Korhonen set out ‘to see what, if anything, lies beyond apology and utopia’.70 Transcending the apology/​utopia dichotomy, Korhonen takes up Gadamer’s ‘hermeneutic imperative that we engage with our historical situatedness’.71 The idea of situationality, the engagement with situatedness is the key to Korhonen’s work: ‘it points to all the biological, anthropological, social, cultural, historical, traditional, political, economic, etc. conditions that influence a subject and, thus, yield its ever-​changing limits and potentials’.72 Korhonen draws from a Gadamerian idea of ‘dialogical situationality where the subject and its other question themselves, each other, the world, and their relationships indefinitely’.73 Situational questioning is hence dynamic, relational. The interpreter’s self-​investment and self-​examination ‘can be seen as a threat to the power of law while it invites discussion on what law really is’.74 For Korhonen, however, the individual lawyer’s self-​reflexive focus on her situation and her agency, on temporality of the law and temporality of the persons using it, sets free unused potentials and reduces blind-​spots in the process of interpretation.75 She does not set aside the dichotomy between realism and idealism, but transcends the differences. Gravitating between the objective and the subjective, Korhonen’s concept of situationality in international law shares essential features with Jochen von Bernstorff ’s ‘reflexive formalism’,76 inspired by Martti Koskenniemi’s ‘culture of formalism’ that he introduced in his Gentle Civilizer and defined as ‘a culture of resistance to power, a social 69  See Korhonen, ‘New International Law’, pp.  2–​3, with further references, inter alia:  Martti Koskenniemi, From Apology to Utopia:  The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) (reissue with a new epilogue). 70   Euan MacDonald, International Law and Ethics after the Critical Challenge:  Framing the Legal within the Post-​Foundational (Leiden: Martinus Nijhoff, 2011), pp. 199–​217. 71   See Malpas, ‘Hans-​Georg Gadamer’. 72  Korhonen, International Law Situated, p. 8. A more defined theoretical account is provided in Korhonen, ‘New International Law’, p.  5:  ‘The situation encompasses concrete matters such as sex, race, genes, physical environment, home, work, other persons; but also abstractions such as culture, tradition, upbringing, education, profession, economic and social conditions some of which we can choose and some not. These components form the situational condition of a human person that limit and shape human life.’ 73  Korhonen, International Law Situated, p. 8, with reference to Gadamer, Truth and Method. 74  Korhonen, International Law Situated, p.  13. On such fears, prompted by Ricoeur’s Gadamer-​ inspired emphasis on the reader’s appropriation of a text for increased self-​understanding, see George H. Taylor, ‘Ricoeur and Law: The Distinctiveness of Legal Hermeneutics’, in Ricoeur across the Disciplines, edited by Scott Davidson (New York: Continuum, 2009), 84–​101. 75  Korhonen, International Law Situated, pp. 285–​95. 76   Jochen von Bernstorff, The Public International Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge: Cambridge University Press, 2010), pp. 268–​7 1. A strong plea for a revised formalist approach is also to be found in d’Aspremont, Formalism; and see also the contributions in Jörg Kammerhofer and Jean d’Aspremont, eds, International Legal Positivism in a Post-​Modern World (Cambridge: Cambridge University Press, 2014).

482    sources in the meta-theory of international law practice of accountability, openness, and equality whose status cannot be reduced to the political positions of any one of the parties whose claims are treated within it’.77 Korhonen cares about the ‘progress’ of the discipline, and its continuation in concrete encounters, theoretical and practical.78 But situatedness, situationality allows for a de-​and re-​construction of progress narratives, of the forceful rhetorical strategies of legitimization that have been, with their arguments of standardization and formalization, so successful in sources discourse, in the framing of sources doctrine marked by the ‘event’ of the adoption of Article 38 of the Statute of the Permanent Court of Justice.79 Voyiakis, whom I mentioned earlier, is concerned with legal texts (and practices), textual fidelity, and evolutionary interpretation.80 Drawing on Gadamer’s philosophical hermeneutics (which Voyiakis calls ‘hermeneutic philosophy’), he seeks to integrate the interpreters’ seemingly contradictory desiderata to be faithful to legal texts and practices while also treating those texts and practices as ‘living instruments’. For Voyiakis, as for Korhonen, Gadamer’s concept of situationality is key to interpretation, particularly to the effect of temporal distance.81 As Gadamer puts it: Time is not primarily a gulf to be bridged because it separates; it is actually the supportive ground of the cause of events in which the present is rooted. (The) important thing is to recognize temporal distance as a productive condition enabling understanding. It is not a yawning abyss but is filled with the continuity of custom and tradition, in the light of which everything handed down presents itself to us.82

Relational situationality is situatedness in time and space. In language, in culture, in religion. It requires and facilitates transregional or, as lawyers prefer to frame them, transnational perspectives.83 It requires and enables even such transcivilizational perspectives on international law as developed by Onuma Yasuaki84—​‘le précieux témoignage d’une experience située du droit international’.85 While Onuma’s central   Martti Koskenniemi, The Gentle Civilizer of Nations (Cambridge:  Cambridge University Press, 2002), p. 500. As Jan Klabbers recently noted, Koskenniemi’s work is—​as is Korhonen’s—​infused by moral undertones; see Jan Klabbers, ‘Towards a Culture of Formalism? Martti Koskenniemi and the Virtues’, Temple International and Comparative Law Journal 27 (2013): 417–​35. 78  Korhonen, International Law Situated, p. 295. 79  Thomas Skouteris, ‘The Force of a Doctrine: Art. 38 of the PCIJ Statute and the Sources of International Law’, in Fleur Johns, Richard Joyce, and Sundhya Pahuja, eds, Events: The Force of International Law (Abingdon: Routledge, 2011), 69–​80. See also Thomas Skouteris, The Notion of Progress in International Law Discourse (The Hague: T.M.C. Asser Press, 2010). 80 81   See Voyiakis, ‘International Law, Interpretative Fidelity’.   ibid., pp. 412–​14. 82  Gadamer, Truth and Method, p. 297. 83  On transnational law as perspective, see Peer Zumbansen, ‘Transnational Law, Evolving’, in Jan Smits, ed., Elgar Encyclopedia of Comparative Law, 2nd edn (Cheltenham:  Edward Elgar, 2012), 898–​925. 84  Onuma Yasuaki, A Transcivilizational Perspective on International Law, vol. 342, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2010), 77–​418. 85   Frédéric Mégret, ‘Présentation’, in Onuma Yasuaki, ed., Le Droit International et le Japon:  Une Vision Trans-​Civilisationelle du Monde (Paris: Pedone, 2016), 11–​48, 44. 77

alexandra kemmerer   483 reference to ‘civilisations’ carries, for his readers in the twenty-​first century, a strangely culturalist burden, his original and inspiring argument for a radical decentration of our eurocentrist worldview is the forceful contribution of a master of reflexive international law whose writings resonate, sometimes unexpectedly, with the work of authors of a younger generation writing global, non-​Eurocentric histories of international law.86 Whoever wants to problematize Eurocentrism might, however, have her own agenda, and her ambition to write a ‘global’ or ‘universal’ history should be carefully scrutinized.87

VI. Context Hermeneutics is le plaisir du contexte—​the joy of context.88 All interpretation is contextual, drawing from the loosely knit texture of contextus, the coherent connection, the comment on the main text.89 Francis Snyder, who has coined the concept of ‘European Union Law in Context’, rightly emphasized that context is always defined by the situatedness of the observer, by her formation, profession, and habitus. Social scientists and politicians, practicing lawyers and legal academics bring very different perspectives to the table when aiming at a contextualization of law.90

86   See inter alia, Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge:  Cambridge University Press, 2005); Sundhya Pahuja, Decolonising International Law. Development, Economic Growth and the Politics of Universality (Cambridge:  Cambridge University Press, 2011); Arnulf Becker Lorca, Mestizo International Law. A Global Intellectual History 1842–​1933 (Cambridge: Cambridge University Press, 2014). See also the contributions in Alexandra Kemmerer, ed., ‘Towards a Global History of International Law? A Review Symposium on Bardo Fassbender and Anne Peters, eds, The Oxford Handbook of the History of International Law (2012)’, European Journal of International Law 25 (2014): 287–​341. 87   Alexandra Kemmerer, ‘ “We Do not Need to Always Look to Westphalia . . .” A Conversation with Martti Koskenniemi and Anne Orford’, Journal of the History of International Law 17 (2015): 1–​14, 6–​9. 88   Odo Marquard, ‘Felix culpa?—​Bemerkungen zu einem Applikationsschicksal von Genesis 3’, in Manfred Fuhrmann, Hans R. Jauss, and Wolfhart Pannenberg, eds, Text und Applikation: Theologie, Jurisprudenz und Literaturwissenschaft im hermeneutischen Gespräch (München: Wilhelm Fink Verlag, 1981), 53–​7 1, 53. Marquard refers here to Roland Barthes, Le Plaisir du Texte (Paris: Gallimard, 1973) and draws from Karlheinz Stierle, ‘Zur Begriffsgeschichte von „Kontext” ’, Archiv für Begriffsgeschichte 18 (1974): 144–​49. 89   On the notion of ‘context’, with further references, see Dieter Grimm, Alexandra Kemmerer, and Christoph Möllers, ‘Recht im Kontext. Ausgangspunkte und Perspektiven’, in Dieter Grimm, Alexandra Kemmerer, and Christoph Möllers, eds, Gerüchte vom Recht. Vorträge und Diskussionen aus dem Berliner Seminar Recht im Kontext (Baden-​Baden: Nomos, 2015), 7–​22, 17–​21. 90   Francis G. Snyder, ‘ “Out on the Weekend”. Reflections on European Union Law in Context’, in Geoffrey P. Wilson, ed., Frontiers of Legal Knowledge (London: Chancery, 1995), 120–​42, 140.

484    sources in the meta-theory of international law Contextualization requires situatedness. It is based on choice—​and hence ‘political through and through’.91 It sounds bleak if Wesley Pue argues that ‘all contexts, be they of gender, race, class, history, or space, are the enemies of the law’.92 But contextualizing law does indeed defreeze time, relocate places and events, question the rationality, generality, and universality of normative orders. Yet, accepting that legal knowledge is context-​ specific does not necessarily undermine law’s legitimacy—​it enhances legal reorientation, the situationality of the law, and the reflexive situatedness of the lawyers. Contextualization is always de-​contextualization, it sharpens our sense for the possibilities and limits of law, thereby contributing to the ‘normative relevance’ of legal work.93 Thomas Duve encourages a profoundly context-​sensitive ‘intellectual decentralization’, drawing from a variety of disciplinary and regional perspectives and cultivating reflexive positionality, but he clarifies—​in a Gadamerian mode, one might say—​that this does not entail a farewell to traditions, achievements, and findings of legal scholarship.94 On the international plane, Pierre Bourdieu observes, remarkable misunderstandings are due to the fact that texts ‘travel without their context, they do not carry along their field of production’.95 Bourdieu describes legal texts, legal artefacts as travellers in time and space, their ‘elasticity is extraordinary’96—​and this would explain, writes Grégoire Mallard, ‘how diplomats and other foreign policy elites with very different worldviews can congregate around the same ambiguous legal norms (such as human rights, nuclear security, etc.) and still differ when they interpret these norms to design concrete policies and rules . . . ’ .97 Yet, Mallard demonstrates that there are some differences in the degree to which legal texts are open to multiple, sometimes contradictory, interpretations, and that these differences reflect the

 Martti Koskenniemi, ‘Vitoria and Us. Thoughts on Critical Histories of International Law’, Rechtsgeschichte 22 (2014): 119–​38, 129. In this article, Koskenniemi discusses the ‘turn to context’ and the limits of contextualization in international legal historiographies. See also Kemmerer, ‘We Do not Need to Always Look to Westphalia . . . ’ . 92   W. Wesley Pue, ‘Wrestling with law: (Geographical) specificity vs. (legal) abstraction’ (unpublished paper, Carleton University, 9 April 1990), , accessed 12 February 2017. 93   Ino Augsberg, ‘Lob der Dogmatik’, Rescriptum (2014): 63–​6, 63. 94  Thomas Duve, ‘Internationalisierung und Transnationalisierung der Rechtswissenschaft’, in Dieter Grimm, Alexandra Kemmerer, and Christoph Möllers, eds, Rechtswege. Kontextsensible Rechtswissenschaft vor der transnationalen Herausforderung (Baden-​Baden: Nomos, 2015), 167–​95, particularly 178–​80. 95   Pierre Bourdieu, ‘Les conditions sociales de la circulation des idées’, Actes de la recherche en sciences sociales 145 (2002): 3–​8, 4 (translation by author). 96   Pierre Bourdieu, ‘The Force of Law:  Toward a Sociology of the Juridical Field’, Hastings Law Journal 38 (1987): 805–​53, 812. 97  Grégoire Mallard, Fallout. Nuclear Diplomacy in an Age of Global Fracture (Chicago:  The University of Chicago Press, 2014), p. 20. 91

alexandra kemmerer   485 various tactics adopted by diplomats during the negotiation of treaties and conventions.98 Context matters. When life and law change, contextualization is a matter of survival. In addition to more research on legal knowledge production in diplomatic as well as in judicial settings, we need ‘to compare systematically how the context of interpretation (diplomatic negotiation or international court, the varying levels of trust and social cohesion among negotiators) affects the recursive dynamics at work in global lawmaking’.99 As Isabel Feichtner has indicated, the fact that international legal regimes increasingly restrict and complement domestic governance creates a ‘flexibility challenge’, bringing the legitimacy and effectiveness of international governance into focus.100 This challenge, also a challenge to the interpretation of sources, can be identified more clearly (and confronted more efficiently) by taking a multi-​perspective approach, paying particular attention to contextualities.101 As long as the state constitutes the primary form of political organization that makes democratic self-​government possible and as long as there is no consensus as to the concrete realization of ‘constitutional’ values recognized by international law, international legal regimes need to be responsive to collective choices and cultural context in order to remain legitimate.102

In her chapter on contextual interpretation of the World Trade Organization (WTO) Covered Agreements by the Appellate Body, Isabelle Van Damme demonstrates how the Appellate Body has adopted a broader understanding of context than that described in Article 31 of the VCLT.103 Van Damme is careful to state a change in treaty interpretation itself, but emphasizes that there has been a shift in how the Appellate Body explains its interpretations. To mark the trend, she introduces the term ‘contextualism’, reaching beyond the notion and function of ‘context’, and more a ‘steering spirit’ than a method of interpretation.104 ‘Contextualism’, she argues, ‘is an evident response to the reality of vague, silent, ambiguous, or incomplete treaty language. Even a narrow understanding of context in Article 31 (2) VCLT does not necessarily preclude broader considerations, such as the historical background, being also relevant.’105

  ibid. Mallard repeatedly highlights the importance of a ‘hermeneutic approach’ (pp. 38, 73, 174), but does not further carve out the theoretical nuances of the hermeneutics which he has in mind. Obviously, contextualization is crucial here. 99   Mallard, ‘Crafting the Nuclear Regime Complex’, p. 472. 100  Isabel Feichtner, The Law and Politics of WTO Waiver. Stability and Flexibility in Public International Law (Cambridge: Cambridge University Press, 2012), p. 8. 101   ibid. For a multi-​perspective approach, see also Djeffal, ‘Establishing the Argumentative DNA of International Law’, pp. 128–​57. 102  Feichtner, The Law and Politics of WTO Waiver, p. 9. 103 104 105   Van Damme, Treaty Interpretation, pp. 213–​74.   ibid., p. 213.   ibid., p. 220. 98

486    sources in the meta-theory of international law

VII. Conversations In conversation with his last assistant Carsten Dutt, Gadamer linked his own ‘conversational turn’ to his endeavours to make converts to the legacy of his teacher Heidegger—​ and to the verses from the draft edition of Friedrich Hölderlin’s ‘Friedensfeier’, which Heidegger’s 1936 lecture ‘Hölderlin und das Wesen der Dichtung’ (‘Hölderlin and the Being of Poetry’) had especially emphasized.106 Gadamer, almost centenarian, told Dutt: Of course, the task still remained of taking the philosophical awakening of Heidegger and applying it to the Geisteswissenschaften and to show its validity there. This is the task to which I have tried to contribute. What I tried to do, following Heidegger, was to see the linguisticality of human beings not just in terms of the subjectivity of consciousness and the capacity for language in that consciousness, as German idealism and Wilhelm Humboldt had done. Instead, I  moved the idea of conversation to the very center of hermeneutics. Perhaps a phrase from Hölderlin will make clear to you what kind of turn this move involved. Because Heidegger could no longer accept the dialectical reconciliation with Christianity that had marked the whole post-​Hegelian epoch, he sought the Word through Hölderlin, whose words ‘Seit ein Gespräch wir sind/​Und hören können voneinander’ (Since we are a conversation/​And can hear one another) inspired him. Now Heidegger has understood this as the conversation of human beings with the gods. Perhaps correctly so. But the hermeneutic turn, which is grounded in the linguisticality of the human being, at least includes us in Hölderlin’s ‘one another’, and at the same time it contains the idea that we as human beings have to learn from each other. We do not need just to hear one another but to listen to one another. Only when this happens is there understanding.107

Gadamer brought Hölderlin’s (and Heidegger’s) Gespräch to a horizontal, human level. Involved in his probably most problematic philosophical engagement, the subtle revirement of his master’s ideas, Gadamer transformed it from an intimate vertical dialogue between gods and human beings into a horizontal conversation, even a discursive learning process. How could a liberal international lawyer not

  Martin Heidegger, Erläuterungen zu Hölderlins Dichtung (Frankfurt am Main: Klostermann, 1951), p. 38. The lines, quoted according to Heidegger’s own quotation, appear at the outset of this chapter. Much ink has been spilled in the controversy over the relevance of Martin Heidegger's Nazi ties to the interpretation and evaluation of his philosophical work, a debate that cannot adequately be canvassed here. For an attempt at a ‘nuanced’ interpretation of Heidegger’s political thought, see Florian Grosser, Revolution denken. Heidegger und das Politische 1919-​1969 (München: C.H. Beck, 2011). The recent publication of Heidegger’s ‘Schwarze Hefte’ (‘Black Notebooks’), written between 1931 and the early nineteen-​seventies, reveals the profound antisemitism at the core of his philosophy, his ‘intellectual disaster’ (Jürgen Kaube, ‘Der Deutsche nur kann das Sein neu sagen. Heideggers geheime “Schwarze Hefte”’, Frankfurter Allgemeine Zeitung, 20. 02.2014, 31). 107  Hans-​Georg Gadamer and Carsten Dutt, ‘Gadamer in Conversation with Carsten Dutt’, in Richard E. Palmer, ed., Gadamer in Conversation. Reflections and Commentary (New Haven:  Yale University Press, 2001), 31–​85, 39. 106

alexandra kemmerer   487 be reminded of judicial networks, of a ‘Global Community of Courts’?108 After all proclaimed ends of history, a networked world of transnational judicial networks and conversations has an impact on interpretation, and on our approach to sources. Finally, there must come to the act of international judicial interpretation a more dynamic and dialogical self-​understanding. The greater ubiquity of third-​party dispute settlement means that the act of the interpretation is much less, as was the case in the past, a one-​time, unique event produced by a discrete (marginal) dispute. It is now not only more frequent but more systemic. Interpretation must be seen more as a dialogue with an interpretative community in which the decisions of judicial decisors ‘dialogue’ with other actors within the interpretative community be they governments of the States, courts, and legislators within the States, and other non-​Statal and non-​governmental actors. Within a domestic system this process was described by indirect representation, either as part of governmental briefs, or by opening the process to the public, greater pressure is brought on government agents. See recent practice in NAFTA, BITs and WTO.109

‘Seit ein Gespräch wir sind . . . ’ . Are we all conversation now? Will we soon be song? Gadamer’s hermeneutical conversation, until now not yet fully explored by his readers and commentators, opens new perspectives for a contextual theory and praxis of international legal interpretation that brings together various disciplinary perspectives and cultural experiences and thereby allows for a more nuanced and dynamic understanding of the interpreter within her interpretative community. For example, hermeneutical conversation might open an avenue of understanding in complex regulatory dialogues.110 But can discursive conversations between lawyers and experts from other fields strengthen the legitimacy of an ever more vibrant world of transnational regulation and adjudication, of international courts and tribunals? In whose name do they speak the law?111 Beyond the law, beyond the field of our legal reflections, there was another conversation,112 another Gespräch, drawing from Hölderlin’s ‘Friedensfeier’. On 24 July 1967, Paul Celan gave a poetry reading at Freiburg University, in an auditorium packed with well over a thousand listeners. In the first row sat Heidegger, whose writings Celan had been studying with close attention for more than thirteen years. They had been exchanging letters and books for over a decade. 108   Anne-​Marie Slaughter, ‘A Global Community of Courts’, Harvard Journal of International Law 44 (2003): 191–​219; Anne-​Marie Slaughter, A New World Order (Princeton: Princeton University Press, 2004), pp. 65–​103; see also, on ‘learning transnational judicial associations’ (‘länderübergreifender höchstrichterlicher Lernverbund’), Franz Merli, ‘Rechtsprechungskonkurrenz zwischen nationalen Verfassungsgerichten, Europäischem Gerichtshof und Europäischem Gerichtshof für Menschenrechte’, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 66 (2007): 392–​422, 418. 109   Weiler, ‘Prolegomena’, p. 23. 110   Sungjoon Choo, ‘From Control to Communication: Science, Philosophy, and World Trade Law’, Cornell International Law Journal 44 (2011): 249–​78, 267–​78. 111   See Armin von Bogdandy and Ingo Venzke, In Whose Name? A Public Law Theory of International Adjudication (Oxford: Oxford University Press, 2014). 112   Hamacher and Hart (and Hart, transl.), ‘Wasen: On Celan’s “Todtnauberg” ’, pp. 15–​54.

488    sources in the meta-theory of international law Over dinner, Heidegger invited Celan to visit his cabin near Todtnauberg, a Black Forest village southeast of Freiburg, the next day, and to have a walk on the Horbacher Moor. Celan came with the reluctant hope that Heidegger would be someone other than who he was at the time of his infamous Rector’s Address. ‘Without a doubt, Celan expected from Heidegger a clear, public condemnation of Nazi ideology and an energetic, public warning against its reinvigoration at the time of their visit.’113 Yet, there was no ‘coming word’ (‘kommendes Wort’), no word to come, as Celan had desired it. Just a few days later, on 1 August 1967, in Frankfurt, Celan wrote the poem ‘Todtnauberg’. It repeats the lines Celan wrote in Heidegger’s guest book in the cabin, expressing his expectation of the philosopher’s ‘coming word’, and his disappointment when faced with Heidegger’s silence. Werner Hamacher writes about this scenario: ‘[t]‌he real meeting between the poet and the philosopher was not the empirical-​historical meeting between Celan and Heidegger but rather their encounter in the poem. The conversation between them happens in “Todtnauberg”, not in Todtnauberg.’114 Celan writes various drafts of ‘Todtnauberg’. In an early draft of the poem (quoted in the opening part of this chapter), he seized on the very verses from the draft edition of Hölderlin’s ‘Friedensfeier’ that Gadamer would many years later quote to Dutt, his assistant. Celan seized on these verses to characterize his conversation with Heidegger. The conversation (which stands in also for a conversation between philosophy and poetry) had become suffocating, ‘a conversation / on which / we choke, /​that I /​cough up, three times, /​four times’. Conversations may fail. There might not be a learning experience. There might not be a ‘coming word’. ‘Law is never just a mental or spiritual act. A legal world is built only to the extent that there are commitments that place bodies on the line. The torture of the martyr is an extreme and repulsive forum of the organized violence of institutions. It reminds us that the interpretive commitments are realized indeed in the flesh.’115 Interpretation matters.

VIII. Perspectives Are we lost then, in our ‘age of pluralized normativity’?116 Not so. For as long as we situate ourselves, contextualize our law, take up our responsibility, there is space for reflection and reconstruction. And transformation. 114   ibid., p. 20.  ibid.   Robert M. Cover, ‘Violence and the Word’, Yale Law Journal 95 (1986): 1601–​30, 1628. 116  D’Aspremont, Formalism, p. 221. 113 115

alexandra kemmerer   489 Interpretation is transformation, and as we interpret, we are responsible for the direction of that transformation. We cannot escape our responsibility implicit in every act of interpretation. The delimitation of ontology reminds us of the positivist fallacy that the legal world is given to us is a self-​perpetuating mechanism. We are left with a reminder of the inescapability of our responsibility for the nomos as it is perpetuated and transformed.117

A meta-​theoretical approach to sources opens reflexive spaces, situates theories in time and space, and allows for a contextual interpretation of sources. Reflexive situationality enables us to constructively contextualize sources and their interpreters in our ‘normative pluriverse’. Gadamer’s conversational hermeneutics opens new perspectives for a contextual theory and praxis of international legal interpretation that brings together various disciplinary perspectives and cultural experiences, and thereby allows for a more nuanced and dynamic understanding of sources and their interpreters within their respective interpretative communities. The interpreter’s place is not the cabin, but the fortress—​the place of reflexive conversation, strategic deliberation, and rational decision-​making, as described by Korhonen: It can be concluded that returning to the fortress is an ethical choice, it is a taking of responsibility. Deconstruction is stopped, return is made. That is the point of phronesis. The taking of responsibility continues inside the fortress. Once there, it mainly fortifies a part of the tekhne. The phronesis of the fortress is twofold: the breaking away from deconstruction or scepsis and accepting the situational reality of practical life. But as long as the fortress is defended mostly by means of tekhne, instability increases. The more phronesis is inside the fortress, the clearer the answer to the question ‘why international law?’.118

Research Questions • How are we to ascertain and interpret sources of international law in an ever more pluralized normative universe? • Can a meta-​theoretical approach to sources create reflexive spaces, situate theories in time and space, and thereby allow for a more nuanced and dynamic understanding and contextual interpretation of sources?

  Drucilla Cornell, ‘From the Lighthouse: The Promise of Redemption and the Possibility of Legal Interpretation’, in Leyh, ed., Legal Hermeneutics, 147–​72, 170. See also Drucilla Cornell, The Philosophy of the Limit (Abingdon: Routledge, 1992; Reprint 2016), 115. 118   Korhonen, ‘New International Law’, pp. 21–​2. 117

490    sources in the meta-theory of international law

Selected Bibliography Aspremont, Jean d’, Formalism and the Sources of International Law. A  Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). Gadamer, Hans-​Georg, ‘On the Origins of Philosophical Hermeneutics’, in Hans-​Georg Gadamer, ed., Philosophical Apprenticeships, trans. Robert R. Sullivan (Cambridge: MIT Press, 1985), 177–​93. Gadamer, Hans-​Georg, Truth and Method, rev. trans. by Joel Weinsheimer and Donald G. Marshall, 2nd rev. edn (New York: Continuum, 1989) [Gadamer, Hans-​Georg, Wahrheit und Methode. Grundzüge einer philosophischen Hermeneutik, Gesammelte Werke, Band 1 (Tübingen: Mohr Siebeck, 2010)]. Korhonen, Outi, ‘New International Law:  Silence, Defence or Deliverance?’, European Journal of International Law 7 (1996): 1–​28. Korhonen, Outi, International Law Situated. An Analysis of the Lawyer’s Stance Towards Culture, History and Community (The Hague: Kluwer Law International, 2000). Mallard, Grégoire, ‘Crafting the Nuclear Regime Complex (1950–​ 1975):  Dynamics of Harmonization of Opaque Treaty Rules’, European Journal of International Law 25 (2014): 445–​72. Onuma, Yasuaki, A Transcivilizational Perspective on International Law, vol. 342, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2010), 77–​418.

Section  XI I

LEGAL THEORY AS A SOURCE OF INTERNATIONAL LAW

Chapter 23

LEGAL THEORY AS A SOURCE OF INTERNATIONAL LAW INSTITUTIONAL FACTS AND THE IDENTIFICATION OF INTERNATIONAL LAW

Iain Scobbie

I. Introduction Legal philosophy structures and influences attitudes to law—​for example, by giving reasons to question the law: is it just?; or is it oppressive?; or is it inherently sexist, racist, or colonialist?; or does it inevitably advance the interest of some classes or sectors of society, whether of the bourgeois or workers, at the expense of others?—​ but it can also indicate what counts as law in the first place through the construction of social conventions which provide interpretative frameworks to gauge whether some act or fact, some expectation or expression, has legal significance or not. Legal philosophy and the explanations it engenders can provide a lens through which we

494    legal theory as a source understand and classify events as elements properly pertaining to the specifically ‘legal’, as opposed to myriad other forms of classification. Law is an institutional order, structured by shared conventions and understandings, and yet it is an order subject to alteration and reformulation. Like the substantive content of law, concepts of what counts as law inevitably change.

II.  ‘Of Cabbages—​and Kings’: MacCormick’s Account of Institutional Facts The American performance artist Laurie Anderson once dedicated a song to Ludwig Wittgenstein which was entitled ‘If you can’t talk about it, point to it’.1 Unfortunately this exhortation is not terribly useful when discussing abstract non-​ material concepts. Some things cannot be apprehended directly using the physical senses, but are mediated through the realm of the intellect, of interpretation, of shared understanding. Drawing on the work of philosophers such as Elizabeth Anscombe and John Searle,2 the Scottish legal philosopher Neil MacCormick developed the notion of law as an institutional order, which consists of institutional facts.3 This was an enduring concern in his work.4 MacCormick contrasted institutional facts with physical or material or ‘brute’ facts, such as a cabbage. Consider this verse from Lewis Carroll’s poem ‘The walrus and the carpenter’:

  Laurie Anderson, United States Live (Warner Brothers, 1984) disc two, track 19. The title of the song alludes to Wittgenstein’s aphorism in the Tractatus Logico-​Philosophicus (1921) that ‘whereof one cannot speak, thereof one must be silent’. 2  See e.g., Neil MacCormick, Institutions of Law:  An Essay in Legal Theory (Oxford:  Oxford University Press, 2007), p. 12. 3   In this context, ‘institution’ does not refer solely to organizational aspects of the administration of law which would include, in the context of international law, international organizations, but is broader, including general legal concepts, as well as alluding to ‘the classic Latin word signifying a textbook, namely “institutio” and thus the systematic account of legal doctrine’—​see MacCormick, Institutions of Law, pp. 12‒13. 4   MacCormick’s inaugural professorial lecture was entitled Law as Institutional Fact (Edinburgh: Edinburgh University Press, 1973), which was subsequently developed in ‘Further Thoughts on Institutional Facts’, International Journal for the Semiotics of Law 5 (1992): 3‒15; ‘Norms, Institutions, and Institutional Facts’, Law and Philosophy 17 (1998): 301‒45; ‘Institutions and Laws Again’, Texas Law Review 77 (1999): 1429‒41; Rhetoric and the Rule of Law: A Theory of Legal Reasoning (Oxford: Oxford University Press, 2005), especially ch. 1; and Institutions of Law. 1

iain scobbie   495 The time has come, the Walrus said, To talk of many things: Of shoes—​and ships—​and sealing-​wax—​ Of cabbages—​and kings—​5

Shoes, ships, sealing-​wax, cabbages and kings—​which is the odd one out? When and why is a man not simply a man but a ‘king’? What gives him that status? Materially a ‘king’ is simply a man: but in the right society, socially he is considered as its king. Institutional facts are essentially social constructions, namely, ‘facts that depend on the interpretation of things, events, and pieces of behaviour by reference to some normative framework’6—​‘our conventions are for us constitutive of facts’.7 An obvious example is money: why do we classify, and ascribe value to, a £20 or €50 banknote rather than regard it simply as a prettily patterned piece of paper which may have an intrinsic worth as such, but which is of no greater significance? Social convention gives monetary value to banknotes. It provides a scheme of interpretation which assigns specific meaning to some pieces of paper, but not to others: The idea of institutional order (like the related idea of institutional facts) depends on how humans act and interpret their own actions and those of others. An institutional order amounts to a shared framework of understanding and interpretation among persons in some social settings.8

Institutional orders can be formalized: for example, the 1969 Vienna Convention on the Law of Treaties provides the authoritative framework through which we understand the legal significance of written agreements between States.9 It allows us to determine which instruments generate binding obligations for States, and which do not. Thus, an ostensible agreement procured through the personal coercion of the negotiators of one State, such as the pressure exerted by Nazi Germany against President Hacha and the Foreign Minister of Czechoslovakia in 1939, to secure a German Protectorate over Bohemia and Moravia, is by virtue of Article 51 of the VCLT ‘without any legal effect’.10 As MacCormick argued: ‘Institutional facts’ are . . . those facts that depend not only on some physical events and occurrences which are supposed to have taken place, but also on an interpretation of these (and/​or other) events or occurrences in terms of some stable set of norms (either institutional or conventional norms) of conduct or of discourse.11

  Lewis Carroll, Through the Looking Glass, and What Alice Found There (1871), ch. 4; this was the sequel to Alice’s Adventures in Wonderland (1865). 6  MacCormick, Institutions of Law, p. 11. 7 8  MacCormick, Rhetoric and the Rule of Law, p. 66.  ibid., p. 6. 9   Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331). 10   See Draft Articles on the Law of Treaties, with commentaries, YILC (1966) vol. II, p. 245, 246, para. 1 (Commentary to draft Article 48: coercion of the representative of the State). 11  MacCormick, Rhetoric and the Rule of Law, p. 65. 5

496    legal theory as a source Legal theory, the product of specialized social groups, can constitute or create conventions for the interpretation of events which occur in the material world ascribing to them legal significance or irrelevance.12 Because international law, like any form of law, is a social institution, its modalities, as well as understandings of it, are not immutable. Although it subsists through time, its contours change as the social conventions and the social and political concerns underpinning it change. The interpretation of events enshrined in frameworks provided by legal theory may determine what counts as international law in the first place by providing socially accepted conventions aimed at identifying the sources of law. Although not all are persuasive or widely adopted, legal theories which are perceived as having explanatory power can permeate legal doctrine and consolidate into an authoritative account of how events should be classified and understood for the purposes of law—​‘There is no separating legal philosophy from substantive norms when it comes to problem solving in particular cases.’13 Legal theories are, however, inevitably contested areas of argument:  rival theories contend with one another for acceptance. Yet all doctrinal accounts and critiques of the substance of international law encapsulate an account of what that law is or should be, its aims, its shortcomings, its biases, and its benefits. In short, all doctrinal accounts encapsulate some theory of international law, even if this is not apparent or overtly discussed on the face of the text, as the author must have had some idea, and no doubt assumptions and preconceptions, of what international law is, otherwise how may it be discussed? At times a disinterest in, or even simple failure to engage with, theory may amount to a lack of critical reflection about the discipline or even to a commitment to a latent and inarticulate theory, an unthinking ‘pragmatism’, that is content with the status quo and seeks neither to question nor justify either the substance or practice of international law.14

12   The allusion here to specialized social groups should be seen as equivalent to the notion of specialized audiences in Perelman and Olbrecht-​Tyteca’s ‘new rhetoric’, whose members have a specialist knowledge of a given discipline; see Chaïm Perelman and Lucie Olbrecht-​Tyteca, The New Rhetoric: A Treatise on Argumentation, trans. John Wilkinson and Purcell Weaver (Notre Dame: University of Notre Dame Press, 1969), pp. 33‒4, para. 7. For an account and commentary on the ‘new rhetoric’, see Iain Scobbie, ‘Rhetoric, Persuasion, and Interpretation in International Law’, in Andrea Bianchi, Daniel Peat, and Matthew Windsor, eds, Interpretation in International Law (Oxford: Oxford University Press, 2015), 61–​77. 13   Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994), p. 267. 14   See Colin Warbrick, ‘The Theory of International Law:  Is There an English Contribution?’, in Philip Allott, Anthony Carty, Martti Koskenniemi, and Colin Warbrick, eds, Theory and International Law:  An Introduction (London:  BIICL, 1991), 49‒71, 69‒70:  see also his ‘Brownlie’s Principles of Public International Law:  An Assessment’, European Journal of International Law 11 (2000):  621‒36, especially 633‒6.

iain scobbie   497

III.  The Question of Sovereignty Some theorists, however, deny the very existence of international law. For example, the influential nineteenth-​century English positivist philosopher, John Austin, argued that international law was ‘law improperly so called’ as it was simply a set of moral rules imposed by general opinion—​‘The so called law of nations consists of opinions or sentiments current among nations generally.’ It was not law as such, because it was not a command set by a political superior to guide the conduct of political inferiors, backed by the threat of a sanction in case of non-​compliance. Austin argued that if a government is sovereign, then its powers, by definition, cannot be limited by positive law. Consequently, for Austin, because there is no determinate sovereign above States capable of issuing commands and imposing sanctions, international law cannot be law, but only a species of positive morality.15 Accordingly, if international law is not law, then how could there be an account of the sources of international law? With the posthumous publication of the works of Jeremy Bentham, it is clear that Austin owed much to Bentham’s more sophisticated analysis of law, and although Bentham doubted ‘the law-​like character of international law’, he was not as sceptical as Austin.16 But, nonetheless, Austin was influential, and his views still find an echo in some contemporary voices, such as that of John Bolton, the United States (US) Ambassador to the United Nations from 2005‒2006, who has claimed that ‘[i]‌nternational law is not law; it is a series of political and moral arrangements that stand or fall on their own merits, and anything else is simply theology and superstition masquerading as law’.17 H. L. A. Hart structured his account of the concept of law by mounting an attack on Austinian positivism but, in discussing international law, he conceded that while it was accepted to refer to it as ‘law’, ‘the absence of an international legislature, courts with compulsory jurisdiction, and centrally organized sanctions have inspired misgivings, at any rate in the breasts of legal theorists’. Hart shared these misgivings, arguing that international law not only lacked rules of change and adjudication which are required to establish a legislature and courts, but also ‘a unifying rule of recognition specifying “sources” of law and providing general criteria for the identification of its rules’.18  John Austin, The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble (Cambridge: Cambridge University Press, 1995), Lecture V, pp. 123‒5, quotation at p. 124. 16   See Mark W. Janis, The American Tradition of International Law:  Great Expectations 1789‒1914 (Oxford:  Clarendon Press, 2004), pp. 15‒21, his America and the Law of Nations 1776‒1939 (New York: Oxford University Press, 2010), pp. 10‒20; and his ‘Jeremy Bentham and the Fashioning of “International Law” ’, American Journal of International Law 78 (1984): 405‒18 . 17  John R. Bolton, ‘Is There Really “Law” in International Affairs?’, Transnational Law and Contemporary Problems 10 (2000): 1‒48, 48; see also Wade Mansell and Emily Haslam, ‘John Bolton and the United States’ Retreat from International Law’, Social and Legal Studies 14 (2005): 459‒85. 18   H. L. A. Hart, The Concept of Law, 2nd edn (Oxford: Clarendon Press, 1994), p. 214. 15

498    legal theory as a source Nevertheless, Hart criticized Austin’s account of international law, underlining that its belief in legally unlimited sovereignty was misleading analytically because it posed the wrong question—​‘There is no way of knowing what sovereignty states have, till we know what the forms of international law are and whether or not they are mere empty forms.’19 Further, it is one thing to introduce into legal theory the notion of sovereignty but another to determine its proper location, even within a given domestic legal system or territory. For instance, revolutionary America denied that sovereignty over the American colonies lay with the British King in Parliament where they were not represented. The Declaration of Independence did not indicate where sovereignty was located if not in the king, and it has been argued that the contemporary assumption was that sovereignty lay with the newly independent state legislatures. This, however, left the national government weak and led to the Federalist campaign which ended in the drafting of the Constitution and the establishment in 1789 of the federal government. This could not leave sovereignty with the states, but it was not politic to assign it to a centralized government as getting rid of one of those had been an aim of the Revolutionary War. Accordingly, some Federalists argued that sovereignty lay with the people, rather than with any body of government.20 Nevertheless, notions of sovereignty frequently structure perceptions and social conventions about the nature and sources of international law. Consider, for instance, the discussion of the doctrine of persistent objection in the formation of customary law between Professors Jonathan Charney and Ted Stein in the mid-​ 1980s. To an extent, this was influenced by the then-​recent conclusion of the 1982 Law of the Sea Convention and its initial repudiation by various developed States which objected to the regime it created for deep seabed mining. Both Charney and Stein used this to illustrate their views of persistent objection.21 Charney and Stein took diametrically opposed positions as to whether non-​signatory States, despite their protests, could or should be bound by any customary regime on deep seabed mining that the Convention might generate. This divergence exposed deeply held views about the nature of international law, and particularly the roles of sovereignty and State consent in the formation of customary law. Charney saw the doctrine of   ibid., p. 224.  See e.g., William E. Nelson, Marbury v Madison:  The Origins and Legacy of Judicial Review (Lawrence: University Press of Kansas, 2000), pp. 4‒5; Douglas J. Sylvester, ‘International Law as Sword or Shield? Early American Foreign Policy and the Law of Nations’, New  York University Journal of International Law and Politics 32 (1999):  1‒87, especially 8‒21. See also James Muldoon, ‘Discovery, Grant, Charter, Conquest, or Purchase: John Adams on the Legal Basis for English Possession of North America’, in Christopher L. Tomlins and Bruce H. Mann, eds, The Many Legalities of Early America (Chapel Hill: University of North Carolina Press, 2001), 25‒46. 21  See Jonathan I. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’, British Yearbook of International Law 56 (1985): 1‒24, 4, n. 12; and Ted L. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’, Harvard International Law Journal 26 (1985): 457‒82, 462, 474–​5. 19

20

iain scobbie   499 persistent objection as one that held only a temporary or strategic utility which a State could employ ‘to force an accommodation of interests in the international community with respect to the evolution of new rules of law’.22 He stressed consensus and a contextual approach which downplayed the need for State consent to individual rules. In contrast, Stein argued in favour of the doctrine, emphasizing State sovereignty and claiming that ‘the central premise of international law theory’ is: that the international legal order lacks a hierarchically superior sovereign authorized to prescribe rules for the subjects of the order. In the absence of such a sovereign, law must result from the concurrent wills of states and, at the very least, cannot bind a state that has manifestly and continuously refused to accept it.23

Stein might have found others who adhered to a similar concept of international law to be strange bedfellows. An unwavering commitment to sovereignty and the necessity of State consent, whether express or tacit, to norms was a characteristic feature of Soviet theory of international law during the Cold War. The leading Soviet theorist, Professor Grigory Tunkin expressed this forcefully: the majority of states in international relations cannot create norms binding upon other states and do not have the right to attempt to impose given norms on other states. This proposition is especially important for contemporary international law, which regulates relations of states belonging to different and even opposed social systems.24

Soviet theory in this period was under the sway of Marxist-​Leninist ideology and, particularly, the tenet that the mode of economic production within a society is the principal influence on the will of its ruling class, and thus on its social institutions. Tunkin recognized only custom and treaties as sources of international law, rejecting the claim that there could be ‘general principles of law recognized by civilized nations’ which constituted an independent source of international law. Because of the divergent nature of their socio-​economic systems, Tunkin denied the very possibility that there could exist normative principles common to socialist and capitalist legal systems. If principles existed which appeared to be superficially common nevertheless, they ‘were fundamentally distinct by virtue of their class nature, role in society, and purposes’, as legal norms are not rules of conduct deprived of social context.25 Further, the decisions of international courts and tribunals could not determine or influence the substantive content of international law—​‘The [International] Court does not create international law; it applies it.’26   Charney, ‘The Persistent Objector Rule’, p. 23.   Stein, ‘The Approach of the Different Drummer’, pp. 458‒9. 24   Grigory I. Tunkin, Theory of International Law, trans. William E. Butler (London:  Allen and Unwin, 1974), p. 128 and ch. 4 generally. 25 26   On general principles, see ibid., p. 199 and ch. 7.   ibid., p. 191. 22 23

500    legal theory as a source

IV.  The Pervasiveness of Conceptual Uncertainty Different conceptions of the significance to be accorded to sovereignty and consequently the role and importance of State consent to customary rules illustrate that concern with a given issue can provide a matrix of ideas which form a background theory influencing an author’s account of sources. Indeed, much contemporary theoretical analysis of international law is precisely concerned with the investigation of sources. Professor Higgins has observed: As international lawyers . . . we have become so preoccupied with jurisprudential debate about the sources of international law that we have, I think, lost sight of the fact that it is an admission of an uncertainty at the heart of the international legal system. I do not mean that there are uncertainties about what particular norms provide (which there may be), but about how we identify norms.27

This uncertainty goes back to the emergence of modern international law in the works of authors such as Francisco de Vitoria, Francisco Suárez,28 Alberico Gentili,29 and Hugo Grotius,30 in the sixteenth and seventeenth centuries. Vitoria and Suárez were theologians, not lawyers, who developed the tradition of natural law theology initiated by St Thomas Aquinas, but who tried to address questions Aquinas had not discussed, such as the legitimacy of Spanish imperial conquests and colonization in the New World. Suárez rejected the idea that obligations could exist without God, but Scholastic natural law embodied ideas of God and the relationship between God and man which could only be considered ‘natural’ if they were persuasive outside Christian Europe, for instance in the new colonies in America. This met with scepticism, on the basis that religious and moral notions were inherently relative to time and place.31 This was noted by Grotius in the Prolegomena to De iure belli ac pacis (The Rights of War and Peace), and his theory of law marked a break from the theological scholasticism of Suárez and Vitoria.32  Higgins, Problems and Process, p. 17.   For a brief account of Vitoria and Suárez’s thought, see Annabel S. Brett, ‘Francisco de Vitoria (1483‒1546) and Francisco Suárez (1548‒1617)’, in Bardo Fassbender and Anne Peters, eds, The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012), 1086‒91. 29   See Merio Scattola, ‘Alberico Gentili’, in Fassbender and Peters, eds, The Oxford Handbook of the History of International Law, 1092‒7. 30   See e.g., Peter Haggenmacher, ‘Hugo Grotius’, in Fassbender and Peters, eds, The Oxford Handbook of the History of International Law, 1098–​101. 31  See Knud Haakonssen, Natural Law and Moral Philosophy:  From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996), pp. 21–​4. 32   See Peter Haggenmacher, ‘Grotius and Gentili: A Reassessment of Thomas E. Holland’s Inaugural Lecture’, in Hedley Bull, Benedict Kingsbury, and Adam Roberts, eds, Hugo Grotius and International Relations (Oxford:  Clarendon Press:  1990), 142–​ 5, and Richard Tuck, The Rights of War and 27

28

iain scobbie   501 Grotius attempted to formulate a theory of natural law which would be impervious to scepticism, but in doing so he laid the basis for a secular natural law.33 He rejected the notion that natural law could be identified with either the Old or New Testaments,34 and argued that principles of natural law are binding ‘though we should even grant, what without the greatest Wickedness cannot be granted, that there is no God, or that he takes no Care of Human Affairs’.35 One of Grotius’ central concerns was proving that ‘a legal, including an international, order was possible independently of religion’,36 and so he attempted to create an understanding of international law which was not dependent on the doctrine of a single Christian denomination for its validity: because he sought to fashion a law of nations that could appeal to and bind Catholics, various Protestants and even non-​Christians alike. His theory of a law of nations based on the consent of sovereigns was meant to be more or less religiously neutral.37

Grotius’ conception of the law of nations contained two principal strands. It comprised the ius gentium, the law applied by many or all States concerning matters which had an international aspect, and which was rooted in nature and discovered by human reason or which had been disclosed by divine revelation, and the ius inter gentes which arose from States’ express or tacit consent.38 As Grotius himself contended: when many Men of different Times and Places unanimously affirm the same Thing. . . [this] can be no other than either a just Inference drawn from the Principles of Nature, or an universal Consent. The former shews the Law of Nature, the other the Law of Nations  . . .. For that which cannot be deduced from certain Principles by just Consequences, and yet appears to be every where observed, must owe its rise to a free and arbitrary Will.39

He observed that domestic laws embody the interests of the State, but that there are some laws ‘agreed on by common Consent, which respect the Advantage not

Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), pp. 78–​83. 33   See Knud Haakonssen, ‘Hugo Grotius and the History of Political Thought’, Political Theory 13 (1985): 239‒65, 247–53. 34   Hugo Grotius, The Rights of War and Peace, ed. Richard Tuck (Indianapolis: Liberty Fund, 2005), Prolegomena, paras XLIX and LI, pp. 47–​8. 35  ibid., Prolegomena, para. XI, p. 38: see also Karl Olivecrona, Law as Fact (London: Stevens, 1971), pp. 13–​4. 36  Haakonssen, Natural Law, p. 30. 37   Mark W. Janis, ‘Religion and the Literature of International Law: Some Standard Texts’, in Mark Weston Janis, ed., The Influence of Religion on the Development of International Law (Dordrecht: Martinus Nijhoff, 1991), 63‒84, 61–​6 generally. 38   See Benedict Kingsbury and Adam Roberts, ‘Introduction: Grotian Thought in International Relations’, in Bull et al., eds, Hugo Grotius and International Relations, 28–​32; Olivecrona, Law as Fact, pp. 23–​4. 39  Grotius, The Rights of War and Peace, Prolegomena, para. XLI, p. 45.

502    legal theory as a source of one Body in particular, but of all in general. And this is what is called the Law of Nations, when used in Distinction to the Law of Nature.’40 Grotius’ hypothetical rejection of the theological foundations of natural law eroded the social conventions which had previously structured this notion, and subsequently it was largely displaced by consent-​based accounts of explaining and interpreting international law, at least in Western Europe, by the rise of positivism in the nineteenth and early twentieth centuries.

V.  Brierly, Fitzmaurice, and Lauterpacht—​The Twentieth-​Century British Turn to Natural Law in Search of Systemic Completeness Three of the most influential British international lawyers of the twentieth century—​ James Brierly, Gerald Fitzmaurice, and Hersch Lauterpacht41—​adhered to theoretical views of international law which appear to be paradoxical. The principal paradox is that, at a time when legal positivism was dominant in international law, and in Britain the positivist influence of Lassa Oppenheim was overwhelming,42  ibid., Prolegomena, para. XVIII, p. 39.   My impression is that Fitzmaurice’s views were heavily influenced by Brierly, and Lauterpacht discussed Brierly’s conceptual work with sympathy and, indeed, warmth—​see Hersch Lauterpacht, ‘Brierly’s Contribution to International Law’, in Elihu Lauterpacht, ed., International Law:  Collected Papers. Vol. 2, The Law of Peace, Part I, International Law in General (Cambridge: Cambridge University Press, 1975), 431–​51. This essay was originally published as a tribute to Brierly in British Yearbook of International Law 32 (1955): 1‒19. 42   For an account of Oppenheim’s approach, see Lassa Oppenheim, ‘The Science of International Law: Its Task and Method’, American Journal of International Law 2 (1908): 313‒56; and for commentary, Benedict Kingsbury, ‘Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim’s Positive International Law’, European Journal of International Law 13 (2002): 401‒37; Amanda Perreau-​Saussine, ‘A Case Study on Jurisprudence as a Source of International Law: Oppenheim’s Influence’, in Matthew Craven, Malgosia Fitzmaurice, and Maria Vogiatzi, eds, Time, History and International Law (Leiden: Martinus Nijhoff, 2007), 91‒118; Mathias Schmoeckel, ‘The Internationalist as Scientist and Herald’, European Journal of International Law 11 (2000): 699‒712;. See also Mark W. Janis, ‘The New Oppenheim and its Theory of International Law’, Oxford Journal of Legal Studies 16 (1996): 329‒36; Mathias Schmoeckel, ‘Lassa Oppenheim (1858‒1919)’, in Jack Beatson and Reinhard Zimmermann, eds, Jurists Uprooted: German-​speaking Émigré Lawyers in Twentieth-​ century Britain (Oxford: Oxford University Press, 2004), 583‒600; and W. Michael Reisman, ‘Lassa Oppenheim’s Nine Lives’, Yale Journal of International Law 19 (1994): 255‒84. 40 41

iain scobbie   503 these three adhered to an understanding of international law which was ultimately rooted in natural law. It should, however, be recalled that Lauterpacht’s initial legal formulation lay in the civilian rather than the common law tradition, as he studied first at Lemberg and then at Vienna, where he was taught by, among others, Hans Kelsen.43 During his time in Vienna, he read widely in works of continental legal philosophy.44 Not surprisingly, this gave him a different perspective, a different understanding of the social institution of law: The Function of Law could only have been written from the inside of the German tradition, from a vivid sense of the urgency of the question of the legal system's ultimate foundation. Things seemed completely different in Britain.45

Brierly, Fitzmaurice, and Lauterpacht embraced naturalism at a time when the dominant organizing concept in international law was State sovereignty. Professor Alexandre d’Entrèves, in his classic exposition of natural law, emphasized that sovereignty is antithetical to the very notion of natural law, arguing: The importance of the doctrine of sovereignty can hardly be overrated. It was a formidable tool in the hands of lawyers and politicians, and was a decisive factor in the making of modern Europe  . . .. But it also appeared to undermine the very possibility of natural law thinking. Natural law is not properly law if sovereignty is the essential condition of legal experience. It is not possible to conceive a law of nature if command is the essence of law.46

Brierly, Fitzmaurice, and Lauterpacht embraced natural law because they thought that positivism was inadequate as an explanation of international law. They used natural law tactically, for strategic purposes aimed at realizing their vision of what international law, and international order, should achieve. Brierly and Fitzmaurice directly attacked the Austinian view of sovereignty and positivism.47 Both saw it as an inadequate explanation of the nature of law, even in the paradigmatic domestic setting, but the terms of their attack meshed with

43   See Elihu Lauterpacht, The Life of Hersch Lauterpacht (Cambridge: Cambridge University Press, 2010), pp. 15 and 26. 44   See the editorial note to Lauterpacht’s essay ‘Kelsen’s Pure Science of Law’ in his Collected Papers. Vol. 2, p. 404. This essay was first published in 1933, and the influence of continental legal philosophy is clearly apparent in his principal jurisprudential monograph, which was also published in that year—​The Function of Law in the International Community (Oxford: Clarendon Press, 1933). For an examination of the continental, and specifically German, roots of The Function of Law, see Martti Koskenniemi, ‘The Function of Law in the International Community: 75 Years After’, British Yearbook of International Law 79 (2009): 353‒66. 45   Koskenniemi, ‘The Function of Law’, p. 356. 46   Alexandre P. d’Entrèves, Natural Law, 2nd edn (London: Hutchison, 1970), p. 67. 47   See e.g., James L. Brierly, The Law of Nations (Oxford: Clarendon Press, 1928), p. 49: Brierly was responsible for the first five editions of this work, which were published between 1928 and 1955, with the sixth being edited by Sir Humphrey Waldock (Oxford: Clarendon Press, 1963), and the current seventh edition by Andrew Clapham (Oxford: Oxford University Press, 2012), see p. 79.

504    legal theory as a source a fundamental concern which was more elaborately expounded by Lauterpacht—​ namely, the foundation of the obligation to obey the law.48 Fitzmaurice observed: reliance on the figure of the law-​giver does not, even in the domestic field, get rid of the problem of the source of legal obligation: it only puts it a stage further back . . . unless the law-​ giver’s own authority and right can be accounted for, so as to show why anyone should obey his prescriptions, the enquirer is no nearer to discovering the true source of the obligation.49

All three rejected the notion that State consent could give a coherent explanation of the binding nature of international law. Lauterpacht argued that reliance on consent was inadequate in this regard because it could not capture the binding force of custom or general principles,50 whereas Brierly, and following him Fitzmaurice, simply observed that reliance on consent as the foundation of legal obligation generated an infinite regress.51 They questioned which act of State consent validated the claim that consent conferred binding force. As Fitzmaurice put it: An explanation in terms of law would necessarily involve a presupposition on the validity of law itself—​which however is the very thing requiring to be established, and constituting the object of the explanation. Just as no individual proposition can be accounted for or validated in terms of itself, so equally law as a whole cannot be accounted for or validated in terms of law.52

Both Brierly and Fitzmaurice rested the obligation to obey the law essentially on a notion of necessity: law is a necessary condition of the existence of society, and rules are of no practical use unless they are obligatory. In order to claim that law binds others, a State must consider it as legally binding upon itself.53 Lauterpacht, after some vacillation,54 adopted a similar view, although his version was cast in more classically natural law terms: though a great deal of international law proper rests on consent, much, but not all, of it follows from the precepts of the law of nature. In a wider sense, the binding force even of that part of it that originates in consent is based on the law of nature as expressive of the social nature of man.55 48   Lauterpacht’s discussion of this is principally found in The Function of Law, especially ch. XX, and in his essay ‘The Grotian Tradition in International Law’, British Yearbook of International Law 23 (1946): 1‒53, republished in Lauterpacht, Collected Papers. Vol. 2, pp. 307‒65. All subsequent references are to the republished version. 49  Gerald G. Fitzmaurice, The General Principles of International Law Considered from the Standpoint of the Rule of Law, vol. 92, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1957), 1‒222, 45, 36‒47 generally; and also his ‘The Foundations of the Authority of International Law and the Problem of Enforcement’, Modern Law Review 19 (1956): 1‒13, 8‒11. 50   See e.g., Lauterpacht, The Function of Law, pp. 420‒1. 51   See e.g., Brierly, Law of Nations, pp. 38‒9, 33‒9 generally (1st edn) and Clapham, ed., Law of Nations, pp. 53, 47‒53 generally (7th edn); see also Fitzmaurice, ‘The Foundations of Authority’, p. 9. 52 53  Fitzmaurice, General Principles, p. 45.   ibid., pp. 38‒40. 54  See Iain Scobbie, ‘The Theorist as Judge:  Hersch Lauterpacht’s Concept of the International Judicial Function’, European Journal of International Law 8 (1997) 264‒98, 267‒9. 55   Lauterpacht, ‘Grotian Tradition’, p. 330.

iain scobbie   505 The spectre of an infinite regress did not pose an insurmountable problem for Lauterpacht, given his adherence to a Kelsenite epistemology of law, and thus to the postulate of a necessary initial hypothesis which terminates regress: The rule pacta sunt servanda confronts States as an objective principle independent of their will. It is from this point of view of little importance whether we adopt the view . . . that the rule pacta sunt servanda is an original hypothesis which cannot be proved juridically, or whether . . . we see in it a rule of customary international law.56

As well as rejecting Austin’s account of positivism, Brierly, Fitzmaurice, and Lauterpacht also mounted an attack on a version of positivism which seems peculiar to international law—​the notion of auto-​limitation or voluntarism. Perhaps too often in international legal discourse this has been taken as the paradigm of positivist theory rather than a marginal variant. Voluntarism can be roughly summarized as the claim that States are only bound by rules of international law to the extent that they have at some point consented to be bound by a given rule and only for as long as they continue to maintain that attitude of consent. The logical consequence of this theory is that States adhere to a set of rules which are not interrelated systemically, but which rather constitute pools of disparate legal relationships.57 Obviously, this places a primacy on State sovereignty at the expense of a coherent and integrated international system. All three relied on natural law to displace this concept of a stunted commitment which entails an incomplete or non-​comprehensive coverage of international law,58 and maintained that the natural law foundations of international law supply normative material that can fill in the deficiencies of a system of positive international law to ensure its completeness: the ideas of natural law and natural rights . . . constitute that higher law which must forever remain the ultimate standard of fitness of all positive law, whether national or international  .  .  .  to disregard  .  .  .the idea of the law of nature is to deprive ourselves of that inspiration which lies in the continuity of legal and political thought.59

56  Lauterpacht, The Function of Law, pp. 419, 416‒23 generally, and his ‘Kelsen’s Pure Science’: see also Scobbie, ‘The Theorist as Judge’, pp. 270‒4. 57   While Hart concludes that international law forms a set rather than an interrelated system of rules because its rules are ‘not unified by or derive their validity from any more basic rule’, he also mounts an attack on voluntarist theories of international law; see The Concept of Law, pp. 234, 232‒7, 224‒6. 58   For Brierly’s criticism of voluntarism, see e.g., Law of Nations, pp. 36‒9 (1st edn) and Clapham, ed., Law of Nations, pp. 49‒53 (7th edn); for Fitzmaurice’s, see General Principles, pp. 36‒8, and ‘Some Problems Regarding the Formal Sources of International Law’, in Jan Hendrik Willem Verzijl and F. M. van Asbeck, eds, Symbolae Verzijl: présentées au Professeur JHW Verzijl à l’occasion de son LXX-​ième anniversaire (The Hague: Martinus Nijhoff, 1958), 153‒76, 162‒4; and for Lauterpacht’s, The Function of Law, pp. 409‒12. 59   Hersch Lauterpacht, International Law and Human Rights (London: Stevens, 1950), p. 74, note omitted, and pp.  103‒11. Fitzmaurice also regarded natural law as ‘a source of legal ideas’—​see his ‘Problems Regarding the Formal Sources’, p. 162.

506    legal theory as a source It must be conceded that Brierly especially had an unusual notion of natural law. Brierly did not adhere to the notion of natural as immutable, universal, and eternal, but rather as something much more malleable to time and circumstance: what medieval writers did not always realise was that what is reasonable, or, to use their own terminology, what the law of nature enjoins, cannot receive a final definition: it is always, and above all in the sphere of human conduct, relative to conditions of time and place . . . what we have a right to believe in to-​day is a law of nature with a variable content.60

Lauterpacht conceded that natural law had been correctly exposed to the charge of ‘vagueness and arbitrariness. But the uncertainty of the “higher” law is preferable to the arbitrariness and insolence of naked force.’61 Be that as it may, Brierly, Fitzmaurice, and Lauterpacht saw natural law as a gap-​filler that could ensure the completeness of international law, temper the notion of absolute sovereignty embedded in voluntarism, and dispel the possibility that international law might be left without answers. This was the strategic turn involved in their embrace of naturalism. This is manifest in Lauterpacht’s emphasis on the importance of general principles of law, particularly analogies drawn from domestic law, in legal reasoning, where he fused together substantive natural law concerns with Kelsenite legal epistemology. Lauterpacht argued that a function of general principles is to ensure the completeness of the international legal order, rooted in the social nature of man: With the Statute of the Permanent Court of International Justice, which declared ‘general principles of law as recognised by civilised States’—​in some ways a modern version of the law of nature—​to be one of the primary sources of international law, what was the essence of the law of nature, namely, its conformity with the actual legal experience of mankind, came once more into its own.62

This affirmation of the universality of general principles is antithetical to Tunkin’s rejection of this even being a possibility owing to the divergent aims of domestic legal orders, thus demonstrating once again that different theoretical commitments can result in diametrically opposed interpretations and understandings of social facts and institutional order. Lauterpacht’s reliance on general principles to ensure systemic completeness, which he saw as ‘an a priori assumption of every system of law’,63 drew on aspects of Kelsen’s legal theory, particularly the doctrines of the relative indeterminacy, and consequently the gradual concretization, of norms. Norms are relatively indeterminate because, being cast in generic terms, they cannot specify all the conditions for their application, therefore:  Brierly, Law of Nations, pp. 14‒15 (1st edn) and Clapham, ed., Law of Nations, p. 20 (7th edn).   Lauterpacht, ‘Grotian Tradition’, p. 333: see also his ‘Kelsen’s Pure Science’, pp. 428‒9. 62  Lauterpacht, Human Rights, p. 115, note omitted. 63  Lauterpacht, The Function of Law, p. 64. 60 61

iain scobbie   507 The actual operation of the law in a society is a process of gradual crystallization of the abstract legal rule, beginning with the constitution of the State, as the most fundamental and abstract body of rules, and ending with the concrete shaping of the individual legal relation by a judgment of a court, or by an adjudication or decision of an administrative authority, or by an agreement of the interested parties.64

In this conceptual perspective, legal relationships between actors, such those created by a contract or a treaty or resulting from a delictual act, are only the specific application of general norms. Kelsen argued: the Pure Theory of Law eliminates the dualism of objective law and subjective right. The subjective right is not different from objective law; it is itself objective law. For there is a subjective right (qua legal right) only in so far as the objective law is at the disposal of a concrete subject. Similarly, the legal obligation (the other form of law in the subjective sense) is itself objective law, for there is a legal obligation only in so far as the objective law aims . . . at a concrete subject.65

This doctrine consciously obliterates any distinction between laws and specific rights and obligations, which has a peculiar consequence for the presentation of international law, which Lauterpacht acknowledged: The actual content of international law is even more meagre than may appear from its presentation in text-​books, when we consider that most rules of international law are concerned with a definition of subjective rights established by a particular or general treaty. Rights of this nature would hardly appear in a presentation of a system of municipal law which is composed of abstract rules of an objective nature.66

This assimilation of legal material stands in stark contrast with the position adopted by Fitzmaurice, who drew a distinction between the formal and material sources of international law. Formal sources are the mechanisms by which ‘acts and facts . . . [are] clothed with legal validity and obligatory force’, while material sources furnish the substantive content of the law or of legal relationships between actors.67 In other words, formal sources constitute the framework of reference that determines which social facts create legal relationships; thus, for Fitzmaurice, treaties (as opposed to the law of treaties) are material sources which are ‘formally, a source of obligation rather than a source of law’.68 The difference in the identification of institutional facts in the classification of legally relevant ‘acts and facts’ which is rooted in different foundational theoretical commitments is manifest.

64   ibid., pp. 255‒6; see also his ‘Kelsen’s Pure Science’, pp. 410‒11; Hans Kelsen, Introduction to the Problems of Legal Theory, trans. Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon Press, 1992), pp. 42‒6 and ch. VI; and his General Theory of Law and State, trans. Anders Wedberg (New York: Russell and Russell, 1945), pp. 132‒6. 65 66  Kelsen, Introduction, p. 44.  Lauterpacht, The Function of Law, p. 70, n. 2. 67   See Fitzmaurice, ‘Problems Regarding the Formal Sources’, p. 154, see also generally pp. 153‒5. 68   ibid., p. 157, see also pp. 157‒60.

508    legal theory as a source As a general matter, the ‘higher law’ approach of Brierly, Fitzmaurice, and Lauterpacht points to notions of relative normativity,69 but this immediately poses the question of where this notion comes from. Reliance on an essentially natural law position not only raises the question of which values are to be privileged, but also which specific content or variant of these values should be employed. There is a danger that this could lead to an uncertainty which could too easily disrupt the shared interpretation of actions, events, or expressions—​Fitzmaurice’s ‘acts and facts’—​and deflect a settled social convention towards a discourse aimed primarily at a divergent exegesis of value.

VI.  The New Haven School—​Natural Law in Pursuit of Democracy, US Style? In the aftermath of World War Two and during the Cold War, the pre-​eminent theory of international law adhered to in the US was the New Haven School. Professor Falk noted that, characteristically, its analysis of events and doctrine ‘had an uncomfortable tendency to coincide with the outlook of the United States government and to seem more polemically driven than scientifically demonstrated’.70 The wellspring of the New Haven School was hostility to the spread of communism. This was expressly stated by McDougal and Lasswell in 1943 when they argued that the function of the US law school was to train policymakers ‘for the ever more complete achievement of the democratic values that constitute the professed ends of American polity’.71 Thus the New Haven School was both outward-​and inward-​ looking, aiming to advance—​or sponsor—​US democratic values abroad as a bulwark against communism, while strengthening these values at home—​‘to promote the major values of a democratic society and to reduce the number of moral mavericks who do not share democratic preferences’.72 69  On relative normativity, see e.g., Jason A. Beckett, ‘Behind Relative Normativity: Rules and Process as Prerequisites of Law’, European Journal of International Law 12 (2001): 627–50; Anthea Roberts,‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’, American Journal of International Law 95 (2001): 757–91; John Tasioulas, ‘In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case’, Oxford Journal of Legal Studies 16 (1996): 85–128; and Prosper Weil, ‘Towards Relative Normativity in International Law?’, American Journal of International Law 77 (1983): 413–42. 70   Richard A. Falk, ‘Casting the Spell: The New Haven School of International Law’, Yale Law Journal 104 (1995): 1991‒2008, 2001. 71   Harold D. Lasswell and Myres S. McDougal, ‘Legal Education and Public Policy:  Professional Training in the Public Interest’, Yale Law Journal 52 (1943): 203‒95, 206. 72   ibid., p. 212.

iain scobbie   509 In terms of theoretical classification, the New Haven School was (and still is) a secular form of natural law, because it is underpinned by and seeks to realize these specific democratic values in pursuit of the rather nebulous notion of human dignity although, philosophically, these ends are not foundational. McDougal and Lasswell were clear that individuals could justify the goal of human dignity in the implementation of their theory ‘in terms of his preferred theological or philosophical tradition’.73 The secular and non-​foundational nature of the New Haven School signals obvious conceptual differences from theologically based natural law theories whether, for example, the scholasticism of Vitoria and Suárez or that communally accepted in the early US.74 The central tenet of the New Haven School is that policy and value permeate law, and that no legal theory can ignore the policy consequences of norms.75 This reflects the School’s debt to the American Legal Realism school of jurisprudence,76 which rejected formalist accounts of law that claimed to be value-​neutral and which relied on the logical exegesis of legal principle to explain the operation of the courts and legal system. On the contrary, Realism emphasized the social consequences of the law. The New Haven School built on this tradition by rejecting the model of law as a system of rules in favour of one which focuses on trends of authoritative decisions taken by authorized decision-​makers who include, but are not restricted to, judges. Law is the continuing process of decisions which involve choices aimed at realizing human dignity. The realization of preferred values is not, however, the sole factor in decision-​making. This must take into account trends of past decisions; how these relate to the goals the decision-​maker wishes to achieve; and how they may be deployed to realize these goals—​‘the task is to think creatively about how to alter, deter, or accelerate probable trends in order to shape the future closer to his desire’.77 Because the social context of these decisions change, and because the trends and implications of past decisions can be unclear, the quest for human dignity cannot

73  Myres S. McDougal and Harold D. Lasswell, ‘The Identification and Appraisal of Diverse Systems of Public Order’, in Myres McDougal and W. Michael Reisman, eds, International Law Essays: A Supplement to ‘International Law in Contemporary Perspective’ (Mineola: Foundation Press, 1981), 15‒42, 24. This essay was first published in American Journal of International Law 53 (1959): 1‒29. 74   See e.g., Cornelia H.  Dayton, ‘Was There a Calvinist Type of Patriarchy? New Haven Colony Reconsidered in the Early Modern Context’, and A. G. Roeber, ‘The Long Road to Vidal: Charity Law and State Formation in Early America’, both in Tomlins and Mann, eds, The Many Legalities of Early America, at 337‒56 and 414‒41, respectively. See also Janis, American Tradition, ch. 2, and America and the Law of Nations, ch. 3. 75   Myres S. McDougal and W. Michael Reisman, ‘International Law in Policy-​Oriented Perspective’, in Ronald St J. MacDonald and Douglas M. Johnston, eds, The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Dordrecht: Martinus Nijhoff, 1983), 103‒130, 122. 76   For an account of Realism’s influence on the New Haven School, see Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995), ch. 3, especially pp. 165‒76. 77   Lasswell and McDougal, ‘Legal Education and Public Policy’, p. 214.

510    legal theory as a source rely on a model of law that comprises only the impartial or neutral application of rules. As all decisions involve a policy choice, rules cannot be applied automatically: Reference to ‘the correct legal view’ or ‘rules’ can never avoid the element of choice (though it can seek to disguise it), nor can it provide guidance to the preferable decision. In making this choice one must inevitably have consideration for the humanitarian, moral, and social purposes of the law.78

The goal of human dignity can only be achieved if the decision taken is both authoritative and controlling: Authority is the structure of expectation concerning who, with what qualifications and mode of selection, is competent to make which decisions by what criteria and what procedures. By control we refer to an effective voice in decision, whether authorised or not. The conjunction of common expectations concerning authority with a high degree of corroboration in actual operation is what we understand as law.79

Higgins, more succinctly and more intelligibly, describes law as ‘the interlocking of authority with power’,80 and argues that the New Haven School’s articulation of relevant policy factors and the requirement that they are systematically assessed in decision-​making requires the decision-​maker to examine the policy implications of competing possible decisions squarely. This precludes the decision-​maker unconsciously giving preference to a desired policy objective under the guise of it being ‘the correct legal rule’.81 Others are not convinced. Fitzmaurice thought that the New Haven School’s emphasis on policy in decision-​making gave the decision-​maker ‘a discretion of a kind altogether exceeding the normal limits of the judicial function’. He argued that ‘human dignity’ was too subjective a notion to be of much practical value to a judge, or ‘in the alternative would invest him with an almost arbitrary power’.82 Tunkin, once again, proves to be a strange bedfellow: McDougal, while not denying the importance of international law in so many words and sometimes also stressing it, in fact drowns international law in policy. In consequence thereof, international law in McDougal’s concept is devoid of independent significance as a means of regulating international relations; it disappears into policy and, moreover, is transformed into a means of justifying policies which violate international law.83  Higgins, Problems and Process, p. 5.   McDougal and Lasswell, ‘Identification and Appraisal’, p. 22. 80 81  Higgins, Problems and Process, p. 5.  ibid. 82   Gerald G. Fitzmaurice, ‘Vae Victis or Woe to the Negotiators! Your Treaty or Our “Interpretation” of It?’, American Journal of International Law 65 (1971): 358‒73, 370. 83  Tunkin, Theory of International Law, p. 297. The criticism that New Haven analysis results in the eradication of international law is commonplace: see e.g., Anthony C. Arend, ‘Towards an Understanding of International Legal Rules’, in Robert J. Beck, Anthony Clark Arend, and Robert D. Vander Lugt, eds, International Rules: Approaches from International Law and International Relations (New York: Oxford University Press, 1996), 289‒310, 290; and Hedley Bull, The Anarchical Society:  A  Study of Order in World Politics, 3rd edn (Basingstoke:  Palgrave, 2002), pp. 153‒4; and Friedrich V. Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989), pp. 193‒200. 78

79

iain scobbie   511 The explicative worth and methodology of the New Haven School have had a constrained influence, partly because of the overbroad and indeterminate ambit of its reference to human dignity and the uncertainty this introduces into analysis, but also because of its essential commitment to democratic values, as these are exemplified in the US. In terms of an understanding of the sources of international law, it emphasizes the process and outcomes of decision-​making to achieve desired policy outcomes rather than rely on a more orthodox enumeration of rule generating institutional facts.

VII.  In the End, Some Conclusions Different legal theories bring different perspectives on the sources of international law, but each one attempts to generate a framework for the interpretation of events in order to identify which have legal significance and which do not. As an institutional order, our ideas of what counts as international law are dependent on a matrix of understandings and expectations, but these are inevitably coloured by the foundational premises to which we adhere. There is, to some extent, a paradox involved:  as a social institution, international law is dependent on shared interpretations, but we each make a subjective commitment to one or other method of structuring and giving significance to events: The question whether a dispute is ‘legal’ . . . will be answered in one way by a believer in the law of nature and the principles of natural justice as forming part of international law; in another by the rigid positivist, for whom nothing short of a rule of international conduct expressly accepted by States possesses the authority of a rule of international law; and in still another by the follower of a middle course who . . . recognizes the practice of States as the principal source of law, but it prepared to extend the sphere of applicable international law by the approved scientific methods of analogy with, and deduction from, general principles of law.84

Theoretical concerns vary with time and underlying purpose—​Grotius’ desire to extend the precepts of natural law beyond Western Europe resulted in a foundational shift from a theological to consensual explanation; the perceived inadequacies of positivism resulted in Brierly, Fitzmaurice, and Lauterpacht embracing naturalism; the exigencies of socialism structured Tunkin’s view of international law; and the aim of promoting democratic values underpinned the policy science of the New Haven School. Theoretical concerns simply endow issues with a variable significance, and thus divergences and disagreements are inevitable because  Lauterpacht, The Function of Law, p. 57.

84

512    legal theory as a source all theoretical positions are, to some degree, subjective. Accordingly, because there are different, and at times inarticulate, premises and assumptions about the nature and function of international law, it is not surprising that adhesion to different theoretical presuppositions results in different conclusions about what counts as international law in the first place.

Research Questions • Is there an overarching or foundational concept which can organize or explain different conceptual accounts of the sources of international law? • To what extent are conceptions of the sources of international law moulded by underlying philosophical or political concerns, and how do these manifest themselves?

Selected Bibliography Allott, Philip, ‘Language, Method and the Nature of International Law’, British Yearbook of International Law 45 (1971): 79–​135. Beck, Robert J., Anthony Clark Arend, and Robert D. Vander Lugt, eds, International Rules: Approaches from International Law and International Relations (New York: Oxford University Press, 1996). Charlesworth, Hilary, and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000). Lauterpacht, Hersch, ‘The Grotian Tradition in International Law’, British Yearbook of International Law 23 (1946): 1–​53. MacCormick, Neil, Institutions of law: An Essay in Legal Theory (Oxford: Oxford University Press, 2007). Perreau-​Saussine, Amanda, and James Bernard Murphy, eds, The Nature of Customary Law: Legal, Historical and Philosophical Perspectives (Cambridge: Cambridge University Press, 2007).

Chapter 24

LEGAL THEORY AS A SOURCE OF INTERNATIONAL LAW DOCTRINE AS CONSTITUTIVE OF INTERNATIONAL LAW

Alain Papaux and Eric Wyler

I. Introduction With treaties, customs, general principles, decisions, doctrines, and soft law, we are dealing first and foremost with signs. The very structure of signs is inference: signs always refer to something other than themselves. This reveals the necessity of interpreting all sources of law. Because doctrine’s first task is interpretation, its role in understanding law is essential.

514    legal theory as a source

II.  Three Preliminary Epistemological Assumptions about Law 1. Law as the Last Dogmatic: A Distinctive Ontology Rather than a Science As a prolegomenon to any kind of discussion about law, it is necessary to recall, as evidenced particularly by legal fictions, that which is just is not the same as that which is true. Accordingly, any purportedly ‘scientific’ assertion about the law is problematic. We proceed from the assumption that the law’s plane of relevance, and partly its nature, are dogmatic: law establishes, configures, and orients intersubjective relationships according to its own ontology, and not according to the ‘truth itself ’ or some ‘scientific’ truth: the essential function of a legal order . . . is this denominating function that typifies the law. This denomination entails both regulation and institutionalization in the sense that here, in real terms, ‘things are done with words’. The law recognizes persons and things. Literally, it imbues them with legal existence.1

And in order to hold and ‘contain’ (from the Latin continere, ‘hold together’) this ontology, which is necessarily floating since it relies on words, the law relentlessly strives to saturate the cognitive context of its exercise (and not of its application) by means of legal types; it does so in cases, also referred to as occurrences.2 The law forges a network of converging clues capable of convincing the average citizen, who is, after all, reasonably well educated. The jurisdictio or judgment contributes serially to this process by providing the network with nodes of meaning, and doctrine contributes to it globally, by delineating the network’s space and making it dense with propositions (of interpretative limitations) which suggest possible configurations. The doctrine prepares the logic of insertion of the occurrences in the types (treaties, customs, general principles, soft law, etc.). As the last dogmatic which dares to reveal itself as such,3 the law expresses and implements dogmas. Dogmas are chosen propositions: they are not necessary, but made unavailable and undeniable because of that very choice, in accordance with the logical form of bootstrapping or endogenous (‘chosen’) fixed point accepted as exogenous. Such a point imposes itself and stays outside of discussions, apparently   François Ost and Michel van de Kerchove, ‘Constructing the Complexity of the Law. Towards a Dialectic Theory’, in Luc. J. Wintgens, ed., The Law in Philosophical Perspectives: My Philosophy of Law (Dordrecht: Kluwer Academic Publishers, 1999), 147–​7 1, 161. 2   See below, section 2. 3   See Alain Supiot, Homo juridicus (Paris: Seuil, 2005), particularly pp. 11, 25, 40, 59, 82. 1

alain papaux and eric wyler    515 outside of logos, in the same way as the (Greek) myths or mathematics:  no one would contend that axioms are irrational. A matter of mètis, cunning intelligence or conjectural knowledge used in various contexts but always for practical purposes: know-​how of the artisans, skilfulness of the sophists, prudence of the politicians, or instinct of the captains guiding their ships. Mètis implied a series of mental attitudes combining, among other qualities, intuition, wisdom, and resourcefulness. Multi-​faceted and polymorphous, mètis applied to shifting realities which do not lend themselves to precise measuring or rigorous reasoning. Engaged with futurity and action, this form of intelligence has been eclipsed by philosophers since the fifth century. In the name of a metaphysics which centred on being and immutability, conjectural wisdom and the oblique knowledge of crafty and prudent persons were discarded as non-​knowledge.4 As non-​knowledge, doxa—​that is, opinions which hopefully are learned, clever, and sometimes authorized5—​is part of law: doctrine refers to the comments of the scholar (doctus), as opposed to the scientist, in that the former’s concern is not for that which is true but, rather, for that which is just. Thus, doctrine only ceases to nourish the law in those conceptions which pretend that the law is scientific, such as legal positivisms and especially legalism—​the tendency to reduce the law to statutes—​which is still very much prevalent among civil lawyers. These conceptions are all the less relevant now that their scientific model, which had been premised on the neutrality of the subject and the objectivity of observations, on deductions and absolute certainties (the truth), has become totally outdated. Contemporary science relies on probabilities and likelihood, on argumentation and (simple) relevance much more often than on demonstrations. As a result, the authority of scientists, their auctoritas, plays a major role in arbitrating theories within the intersubjective scientific community. Auctoritas operates a fortiori in law, since it is a practice-​ oriented activity with a rhetorical texture in which virtue and reflection infuse each other in the form of a dianoetic know-​how: doctrine deliberates on legal practices, whether types (statutes, for example) or cases (judicial decisions, essentially), to conjecturally sketch such practices’ tendencies. The practice-​oriented character of legal theory should be understood as much as ‘from practice’ as ‘with a view to’ practice: doctrine is ‘finalized’ for and by practice. Doctrine is all the more disqualified in that scientism ignores the constitutive (yet non-​exclusive) nature of language in the law and the ambiguous nature of all forms of language. From this ensues the principled rejection of the necessary mediation of the learned doxa to disambiguate the linguistic expressions in which the law has been formulated: doctrine would only be an ‘auxiliary mean’ (Article 38 (1) (d) 4   See Marc Detienne and Jean-​Pierre Vernant, Les ruses de l’intelligence. La mètis des Grecs (Paris: Flammarion, 1974). 5   See Article 38 (1)  (d) of the Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993).

516    legal theory as a source of the ICJ Statute), an accident—​in the philosophical sense of ‘what is added to a phenomenon without changing its nature or essence’—​for the (naïve) objectivism of a formal literalism or of societal determinisms on the one hand, and for the radical subjectivism of legal decisionism—​judges do whatever they want—​sinking into arbitrary, on the other. The obligation to motivate as well as its modalities (individual and dissenting opinions), shows the cognitive-​semiotic insufficiency of these two positions. That language is, in part, constitutive of law and not a mere instrument or a neutral vector of its formation and communication, is not only evidently true for any thought as it is shared, but has already been observed in law by renowned doctrine (developed by practitioners). For instance, Paul Reuter noted that: Law rests on a certain use of language, which itself represents an accumulation of collective experiences and traditions corresponding to a concrete mentality. When a human community has its own language, the expression of legal rules in this language takes place naturally. But international society is a superimposed society: it is separated from the human milieu by a shield of national societies; the international Community does not call any citizen or any language its own. The rules of international law will be expressed, for lack of a better medium, in national languages, which results in: slow forming of the law, ambiguous wording, and poor and empirical instantiation.6

As a matter of principle, international law’s formulation is equivoqual; as a result, one can only acknowledge the significant influence of doctrine on international law’s practice—​and this, even if evaluating that influence is undoubtedly difficult. Doctrine’s influence in international law is particularly important given that judicial decisions are relatively scarce in that field, and cannot resolve all linguistic and conceptual ambiguities, or, in other words, all semiotic ambiguities.

2. Law as the Exemplary Semiotics By definition, semiotics governs all statements and arguments because meaning is at stake: we express ourselves in a language. No semantic system (field) is clear in itself. The expression of any kind of idea is situated between equivocity—​a ‘relativist’ view which prohibits all discourse—​and univocity. It is therefore necessary to fix a meaning in context, a feat which law achieves, admittedly temporarily, primarily 6  Paul Reuter, Principes de droit international public, vol. 103, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1961), 425–​655, 435 [trans. in Alain Papaux and Rémi Samson, ‘Interpretation of Treaties Authenticated in Two or More Languages: Commentary ad Article 33’, in Pierre Klein and Olivier Corten, eds, The Vienna Conventions on the Law of Treaties: A Commentary (Oxford: Oxford University Press, 2011), 866‒86, 868. For a similar observation, see also Georges Abi-​Saab, Cours général de droit international public, vol. 207, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1987), 9–​463, 41–​2.

alain papaux and eric wyler    517 through the judgments of the supreme court; in those judgments, the court itself relies on doctrine to develop a convincing account of this fixation of meaning and law. From that perspective, doctrine operates as the original source for the fixation of the meaning of legal notions and expressions, which, indeed, is not objectively set by their authors and automatically decoded by their recipients. This absence of automaticity follows from the very structure of any sign, which, by nature, refers and operates on an inferential or indicial basis (‘if a, then b’),7 in other words, as a sign inference. These inferences require an understanding of predictable, or more-​ or-​less probable, marks of contextual insertion, which are primarily recognized or elaborated by doctrine. Doctrine weaves the network of social patterns and correlative marks of contextual insertion, and records the preceding experiences considered as nodal or principial for law. It can be described as a kind of dynamic sedimentation of knowledge in semiotic types, which aims to pre-​empt the future by providing reading keys of the signs coming from the others and from the world, with a view to redeploying those types on occasion and in their occurrences, known as ‘cases’ by the lawyers. For example, ‘[i]‌n order to discover whether the principle in Rylands v Fletcher applies as well in a case of escape of electricity which causes the damage, it is necessary to inquire whether electricity is analogical to water, because it is water that caused the damage in Rylands, and, as a result, water is, with respect to electricity, a relevant fact’ (given the selected similarities: fluids, flux, conduit, leaking, etc.).8 The case of water, this specific occurrence, is raised to the cognitive type; it is typified—​ that is, it enables the relation with this type of occurrences otherwise scattered and dispersed, to order them in a single series and thus, make jurisprudence:  bring coherence into the past in order to sketch the lines of the future, a past sedimented by this future which is anticipated on the basis of marks of analogous contextual insertions. In this way, electricity may ‘become’ water following an ontology typical of law in which analogies are necessary. Yet, analogies must be evaluated in such a way that similarities take precedence over dissimilarities. And, as with all evaluations, that is, all attributions of value, the decision must avoid being arbitrary, failing which it will not succeed in establishing order. The decision will consequently look for some consonance with doctrine, at least as a way of justifying itself; such a justification is after all essential (in the sense that it participates to the essence of a phenomenon) to all rhetorical or argumentative enterprises. That case becomes an example of a given legal solution, of a type 7   Umberto Eco, Sémiotique et philosophie du langage (Paris: Presses universitaires de France, 1988), pp. 13–​14. 8   Geoffrey Samuel, ‘Entre les mots et les choses:  les raisonnements et les méthodes en tant que sources du droit’, Revue internationale de droit comparé 47 (1995): 509–​26, 513–​14. In short, does the ‘electricity’ tell (narrativization and story-​telling), in terms of damages, the same (given the similarities) story (fabula) as the ‘water’?

518    legal theory as a source whose paradigmatic traits it condenses with a view towards its ‘application’ to other cases found to be ‘ana-​logous’:  in other words, it becomes a leading case, whose condensed reasoning serves as a reading key for the cases considered to be similar. Law schools, even in the context of continental law, educate their students in doxa. These analogical judgments sedimented in social patterns and other scripts constitute the legal culture: the law develops itself through the fixing of legal social patterns, particularly with the help of scholars. The sedimentation of the cases, which scholars and judges coherently order in semantic fields, allows for a relative predictability in legal decisions, but not for predictability in the sense of univocity, which is a utopian method of sign reading that follows a simple decoding. The ‘inferential’ structure of the sign prevents resort to such a method. Thus, application always implies interpretation, a statement which does not follow from a specific hermeneutic choice, but from a semiotic observation.9 This observation derives from the sign’s nature, the ‘sign-​inference’, and its correlative, inferential logic, which is principally ‘indiciaire’; that is, which principally relies on clues. The ‘signifiers’ of those signs are in a relationship of contiguity, of existential continuity, or even of dynamic connections, with their anticipated sign recipients (or ‘signifieds’), and, thereby, with their possible ‘references’. Clues permeate our thinking habits, our speaking habits, our behaviours, both mundane and legal; they are indispensable in that they indicate—​following the etymology of index which points to a direction—​the meaning of the action, in the sense of both direction in space and direction in interpretation, a duality tellingly named ‘space of meaning’ (or ‘semantic field’). Doxa, and particularly doctrine’s learned opinions, contributes so essentially to establishing that meaning. Clues orient the acting, and therefore the action. As such, they entail a remarkable attribute: both theory and practice—​types and occurrence in semiotic jargon—​are intimately linked in them, intertwined. This interconnection is expressed by the decision-​making criterion of ‘beyond reasonable doubt’, which precisely relies on a cluster of clues. Having this criterion at the foundation of legal practice makes vain all deduction, that top-​down mode of inferring which relies on necessary, mechanical, and linear sequences and which can very well dispense from all praxis. Any legal decision is, then, ius positum in that it must fix ‘one’ meaning in a space of meaning (more or less circumscribed). In French, judgments are precisely named ‘arrêt’, the main goal of practice being to fix (arrêter) the (one) meaning of the norm, and thereby fix the doxa. Law is therefore an exemplary semiotics in many respects. It can hierarchize opinions in accordance with the noble ‘authority argument’ as rehabilitated by 9   Which is why, in our view, Art. 38 does not imply any practical hierarchy among sources. Sources rely on a theoretical point of view on the law which is sufficiently naive to name them ‘formal’, and which takes the appearance of law—​law’s privileged (historically dated and circumscribed) modes of expression—​for the law itself.

alain papaux and eric wyler    519 Hans-​Georg Gadamer:  the most competent authors, the most recognized intellectual authorities ‘font autorité (auctoritas)’, as the consecrated French expression goes, because the auctoritas elevates (from auctor, make grow, from which auctoritas derives) those who submit themselves to it, by intelligence and not by foolishness. Article 38 of the ICJ Statute expresses it: it refers to an ‘authorized doxa’, the one of the ‘most highly qualified publicists’, but also to an ‘institutionalized doxa’, the doxa of judicial decisions, which was instituted for the very purpose of ‘definitively’ (at least temporarily) fixing behaviours from the practical point of view, and fixing meanings from the semiotic point of view. By this explicit and even institutionalized fixation (arrêt) of meaning, thanks to the context of its application, the law is a semiotics which is not applied, but embedded and exemplary: ‘primary’ (sémiotique première), so to speak. While one does not stop the relentless course of social relations without a dogmatic—​and hence, axiological or even ideological—​position, dogmatic is not equivalent to theoretical; quite the contrary. A  practice-​oriented conception of law endorses this semiotic truth: the text, which only comprises ‘signifiers’, is not the norm, which reaches the reference of the ‘signifieds’.

3. Law as Authority: A Hybrid of Auctoritas and Potestas While the notion of authority is central in law, it is nonetheless polysemic: it involves legitimacy, acceptability, acceptance, execution, coercion, etc. The present section aims to fix its meanings in relation to the notion of doctrine. The summa divisio distinguishes the authority-​auctoritas (from auctor, to make grow, to increase) from the authority-​potestas (strength, power, force). Potestas is divided between imperium and social force. The former refers to the ability of a stronger person to impose his or her will: it is a coercive power in a predominantly institutional vein, as illustrated by public force. The latter refers to the power of influence, which manifests itself in a predominantly sociological vein. Imperium resides particularly in sovereignty and in rules-​commands (according to the most common definition of law through sanction), in their execution in case of violation, and more generally, in their enforcement. Legal norms always blend aspects of auctoritas and potestas, as exemplified by jus cogens, those norms of ‘enhanced normativity’,10 whose special authority does not stem from some additional quantity of coercion or potestas-​imperium, but ‘merely’ from some moral exemplarity or auctoritas. International law’s imperium imposes  Prosper Weil, ‘Towards Relative Normativity in International Law?’, American Journal of International Law 77 (1983): 413–​42, 423. 10

520    legal theory as a source itself with greater difficulties than potestas in domestic law because of international law’s eminently horizontal structure which rests upon the juxtaposition of sovereignties deemed dogmatically equivalent. This decentralization is so pronounced that international law’s natural plane of exercise—​when it is acting out; that is, when it intends to be concretely coercive—​is in the national legal orders themselves. Yet, when one looks at international law as ‘inter-​national’, one sees that it operates more through adherence than coercion. This reinforces the utility of a ‘doctrine savante’, one which does not serve international law conceived either as some State’s foreign policy or as a mirror of domestic law, both of which conceptions would fall within the sole scope of jus potestas. Adherence lays bare law’s rhetorical dimension, which operates according to what is likely as opposed to what is true; that is, on the side of what is just. From there comes the double exaggeration which overlooks that law is a blend: holding that law is either (only) command or that it is science; ‘scientific doctrine’ is an oxymoron. The likelihood quality, in turn, indicates that the law reasons according to ‘plus or minus’; law is exercised outside of the Aristotelian logic (of the excluded third), but evidently decides according to this logic: an action is either allowed or forbidden. While doctrine appears to be useless in relation to the truth (which can be demonstrated), it is necessary in relation to ‘like-​lihood’, the gradations of which can be observed, as shown by the ‘beyond reasonable doubt’ criterion which results in discontinuity through clusters of clues which have been ‘e-​valuated’ as converging.

III.  Doctrine as a Source 1. The Explicit Disqualification of Doctrine: The Example of Article 38 of the ICJ Statute Whichever function one attributes to Article 38 of the ICJ Statute, its internal sequence gives doctrine a subordinate status. Doctrine is a ‘subsidiary mean’, which is a double disqualification: first, it is a ‘means’, an instrumentum: a mere instrument, a tool for law and not law as such. Secondly, it is ‘subsidiary’, which means that lawyers are not required to resort to it. Such a depreciation is paradoxical, if not contradictory: the sequence of Article 38 is itself a doctrinal choice, the choice of a legal positivism with a legalist tendency.11 What is the meaning of ‘means’ in this 11   On this reading of Art. 38, see Alain Papaux and Eric Wyler, ‘Le droit international public libéré de ses sources formelles: nouveau regard sur l’article 38 du Statut de la Cour internationale de justice’, Revue belge de droit international 2 (2013): 525–​84.

alain papaux and eric wyler    521 context, if not law’s way of appearing, one of the signs through which it manifests itself? And because a sign is a reference, accessing law occurs through interpreting these signs, which correlatively puts the doctrine centre-​stage, except in case of pure decisonism. Its alleged subsidiary or secondary place rests upon an idealist position which is not adequate for a legal practice assumed as praxis. And notwithstanding this incongruent choice in Article 38’s textual logic, what subtle legal rules are at stake under Article 38 (1) (d), in that only the ‘most qualified publicists’ may reveal them? The rule’s position—​in the strong sense of ‘pro-​ posing’, in identification as well as in interpretation—​is not ‘ordinary’, but certainly not ‘arbitrary’ either. The expression ‘most highly qualified’ is shown to be both democratic and elitist, a conjunction which is founded by auctoritas:  the recognition of a cognitive superiority is a rational act, but it stems from a humble reason conscious that some authors are more ‘authorized’ (auctoritas, precisely) than others because of their sharper mind, as Gadamer would say.12 This intellectual superiority does not exclude that one has been better ‘introduced’, nor that one exercises some social influence, but those do not induce intellectual respect. The centralized structure of domestic legal orders and their lesser heterogeneity explain the apparent absence of a hierarchy of authors; but courts do have their champions cited in their judgments. The illusion of unicity is explicitly worn off by the existence of countless multilingual international treaties.13 Doctrine recovers its usefulness as information about the law, in contrast with a vector or a source of (in the) law, a distinction intended to be innocent and common sense, which nonetheless leads to doctrine’s reinvigoration.

2. The Pragmatic Reinvigoration of Doctrine: Jurisdictio and Doctus Law (Droit Savant) Article 38 of the ICJ Statute provides a list of so-​called sources of international law. Given that the last two are qualified as ‘subsidiary means’, the first three can be considered ‘main’, but remain ‘means’ nonetheless. The mean-​medium, understood as a vector or mode of appearance of law, is in any event a clue as to what the law is. As such, it must be interpreted, a process in the light of which the information about law becomes more relevant than the other means of law, which, after all, are only law’s shapeless material; the text (of the rule of law) is not the rule of law. Domestic lawyers, who at times refer to doctrine and case law as law’s ‘autorités’ in French, understand this dynamic: doctrine and case law augment law by giving shape   Hans-​Georg Gadamer, Vérité et Méthode, (Paris: Seuil, 1996), p. 300.   See below, section III.2.

12 13

522    legal theory as a source to this ‘raw’ material, thereby allowing the unfolding of the social patterns to which it refers. Thus, to be not in the law but about the law no longer disqualifies doctrine, and this even less so since the ‘other’ sources, which would be law and hence be in the law, rest upon a flawed logic: presented as ‘sources’ of law and not merely as ‘information’ about the law, how can they already be law when law derives—​literally flows—​from them? And if they are only law’s mode of appearing, then it means that law exists beyond them, upstream, and that they are neither its origin nor at its origin. This paralogism, which is called bootstrapping or less poetically ‘auto-​ foundation’, is characterized as a mark of sacredness,14 an epistemological sacredness which goes beyond all rationalist (albeit rational) foundation. It theorizes a figure to which lawyers are acquainted: the Grundnorm, the first constituent (necessarily self-​constituted), or competence-​competence, at least for ‘supreme’ courts, etc. From a pragmatic point of view, how is it possible to practice law without being informed about it, unless by denying all need for insertion in a pre-​existing legal scheme? This would be complete decisionism. Furthermore, how do we understand those norms whose texts entail the words ‘equitable’, ‘reasonable’, ‘proportionate’, ‘just’ (in relation to compensations, for instance), ‘essential’ (in relation to treaty reservations), etc.? Judicial decisions may provide help, but they are not always available, and they can be inconsistent or obscure. Doctrine, then, literally allows for the law, for its diction in the case (its ‘jurisdictio’). Doctrine’s mediation is even more necessary when a natural language exempt from semiotic (and particularly semantical) ambiguities does not exist; a fortiori when the settlement of a dispute requires the application of a plurality of norms. As a result, interpretation is inherent to a text’s meaning. Case law has the ultimate advantage of being a doctrine with definitive, institutionalized, and official opinions, but the very substance of its intellectual work, interpretation, does not differ from doctrinal reflection. Judges and scholars are very close, particularly in international law. To reformulate this in legal terms, the text is not the norm: statutes, conventions, or canonical formulations of a general principles are at best law’s starting point, at worst mere ‘signifiers’. They remain far from law’s end-​point in its observable and first finality as praxis (likely one among others): rendering justice in a case, judicially, through arbitration, or even outside of a dispute. And if a certain doctrine is officially considered in international law, does this not mean that it is more indispensable than in domestic legal orders? But indispensable to what? By fidelity to the sequence of Article 38 of the ICJ Statute (which is as idealistic as it is impractical for international law’s practice) one will first note in relation to treaties that, since they are often written in multiple languages, the various versions are   Following the eponymous title of Jean-​Pierre Dupuy’s book, La marque du sacré (Paris: Carnets Nord, 2008). 14

alain papaux and eric wyler    523 equally authoritative.15 This condition of inherent pluralism eliminates ‘the’ treaty and displaces its centre of gravity through the interpretations of its various versions. Very often, only the most highly qualified publicists may surmount that heterogeneity with the help of their dense (legal) culture, by suggesting solutions capable of garnering support. The same is true for custom, since the difficulties in establishing its existence as well as its content require a similar legal cultural density. That legal cultural density is equally and even more crucially called for in dealing with general principles which are often abstract, always open-​textured, and, as such, require a deep practical knowledge to recognize a general principle where ordinary outlooks merely see byzantine casuistry or pure political determination. The ‘principial’ nature of those general principles touches law’s very nature; by contrast, conventions (statutes in domestic legal orders) and customs are only special modes of expression of that material, and take priority not because of their superiority, but merely because they are more special, in accordance with the pragmatic maxim lex specialis derogat generali. None of the law’s official means—​and even less other ‘softer’ sources such as ‘soft law’—​may do without the opinions and arguments of the doctrine, which is necessary to any semiotic (semantical) phenomenon, to any activity related to understanding (‘verstehen’). Doctrine’s mediation is even reinforced by the multiplication of norms with lower normativity when one looks at the practice of law; that is, when one considers the real, concrete, and effective intellectual effort undertaken by the lawyer. Nevertheless, doctrine negates its own relevance, or at least belittles itself to the point of being ancillary, devoting to itself only a few lines in international law manuals.

3. The Need for a ‘Doctrine Savante’ in a Heterogeneous International Society In an eminently heterogeneous society, whose actors readily commit themselves rhetorically (sophistically, really) or symbolically, and where politics and its adjuvant, diplomacy, get the lion’s share, how may precise commitments, and even sometimes precise commitments binding for all States, arise? And all the discussions and negotiations within and between diplomatic services to avoid legal disputes: do they not generate opinions and interpretations which are no less operative for being discreet? In the light of these structural realities, which differ widely from those of domestic legal orders, the internationalist doctrine becomes a source of law with high intensity.   See Alain Papaux and Rémi Samson, ‘Interpretation of Treaties Authenticated in Two or More Languages’. 15

524    legal theory as a source This observation is reinforced by international law’s ‘natural’ plane of exercise, which a domestic methodological inclination focused on institutional aspects may lead us to miss. Yet, the practice of international law first occurs in domestic legal orders, or more precisely, through them: in an international society that is highly decentralized (after all, it never had a centre) and profoundly heterogeneous in values and in interests, the national practices of international law provide a much more comprehensive picture of that law than do the practices of international bodies. The latter only rarely evade the influence of the former, particularly when international law intends to be coercive. The elevation of doctrine by international law is true for common law as well as romanist legal systems, even though the domestic role of doctrine in those systems varies widely. It is necessary to distinguish between practice-​oriented doctrine (droit savant) and theory-​oriented doctrine; the latter designates propositions by system-​makers which are rarely valued by Anglo-​Saxons minds, except maybe for the ideological position reducing international law to mere power relationships, so to pure potestas. Plato’s Gorgias and The Republic, however, have taught us that by this standard, law no longer exists or, to put it another way, men no longer differ from animals. The direct influence of legal theories is more apparent in the fierce doctrinal controversy about the type of procedure (adversarial or inquisitorial) to follow before international tribunals; most often, the result has been a blend of the two. Which is to say that even facts, and more precisely, the establishment of facts, depends on doctrinal choices regarding the trial’s structure and purpose. In sum, the place of doctrine in the sources of law depends upon a doctrinal choice. The more one reduces law to a matter of power, of potestas, the less does doctrine ‘seem’ relevant; we say ‘seem’ because even in such an unfavourable configuration for doctrine, the search for a text’s meaning to fix the norm can only rarely be made without the knowledge of the specialists in the relevant field. The more one recognizes the presence of auctoritas at the foundation of law, the more the voice of doctrine will be heard: while doctrine is not prescriptive, it finds itself in the front line when it comes to give meaning to the prescription.

IV.  Doctrine at the Foundation of the Law of Nations It is admittedly not without reason that public international law, classically named ‘law of nations’, is said to be a scholarly work, the fruit of legal philosophy on a

alain papaux and eric wyler    525 background grounded in theological reflection on the one hand, and of political realities on the other (Pax christiana, sovereigns, and Christian thinkers). The title of ‘founding fathers’ attributed to the members of the school known as the school of the law of nature and the law of nations—​Hugo Grotius, Samuel von Pufendorf, Christian Wolff, Gottfried Leibniz—​as well as to its precursors—​ Francisco Suárez, Alberico Gentili, Francisco de Vitoria—​and to its heirs—​Emer de Vattel, essentially—​is not usurped. Yet, it tends to conceal that each of these authors was anchored in a doctrinal tradition (auctoritas),16 even if these roots did not predetermine the creativity of their respective contributions. In fact, they were ‘system-​makers’,17 but out of necessity: they had no access to judicial practice because judicial decisions were not published at the time. Thus, notwithstanding their pretending to give a fully objective account of a natural law and of the law of nations derived therefrom, in full deference to the laws of the infallible Reason, in reality each of them presented a law desirable in the light of the Christian moral precepts of the time, in the form of abstract systems responding to the pioneering project to make law a science following the model of triumphant physics. Certain that it was only rationally putting together the rules of the law of nations which were conforming to a ‘universal’ and ‘immutable’ law of nature written by God in the hearts of men, such a doctrine—​ultimately voluntarist in its approach to the law of nations—​could not perceive itself as being creative. Its impact on the structuring of public international law’s great myths (unity, peace by the law, rules produced by will only, individual rights consubstantial to universal human nature, etc.) was only revealed much later. From a methodological point of view, the deliberate choice of deduction evidences the will to master a law of nations said to be derived from natural law and whose prescriptions, evidently decreed under reason’s enlightenment, nonetheless had their foundations in the Will of sovereign States (potestas).18 This truth, so pleasant to the ears of governments, has never been fully repudiated since. Is not Vattel, the apologist of State sovereignty, even today the classical author most cited by the US Supreme Court? Deduction flourished particularly with doctrinal codifications by positivists such as Jeremy Bentham, Johann Caspar Bluntschli, Pasquale Fiore, or with the elaboration of formal systems (Dionosio Anzilotti, Hans Kelsen most of all, Alfred Verdross, H. L. A. Hart), all inspired by the modern scientific ideal.   Such filial links are often proudly claimed—​Grotius particularly avails himself of Aristotle’s legacy.   André Oraison, ‘Réflexions sur la doctrine des publicistes les plus qualifiés des différentes nations’, Revue belge de droit international 2 (1991): 507–​80, 527. 18   See Francisco Suárez:  ‘all the precepts written by God upon the hearts of men pertain to the natural law . . . and all precepts which may clearly be inferred by reason from natural principles are written in [human] hearts; therefore, all such precepts pertain to the natural law. On the other hand, the precepts of the ius gentium were introduced by the free will and consent of mankind, whether we refer to the whole human community or to the major portion thereof.’ De Legibus, Bk. II, chap. XVII, 16 17

526    legal theory as a source

V.  Towards Doctrine as a ‘Source’ of Public International Law 1. Formalist Doctrines Formalist doctrines encompass both the positivist legalist streams of scientific obedience (referred to as ‘scientific doctrines’) and the activist movements or ‘symbolic doctrines’ of reformist bent. While each is somewhat tainted with idealism and, as such, betrays a willingness to control legal realities, they are not to be confused. The scientific doctrines identify positive law to the Law (lex lata)—​meaning public international law to treaties and even universal customs—​and consider the norms as clear, univocal, imperative, and directly applicable. The symbolic doctrines, in contrast, are oriented towards the lex ferenda and aim at, and consider possible, the modification of the lex lata, thereby pulling international law towards politics and forgetting that reality’s inherent contingencies (legal or otherwise) will inevitably stymie their revolutionary project, even if it is allegedly founded on Science. Of course, the simplicity of this classification is undermined by reality which includes hybrids, since scientism does not exclude activism, at times an activism which is even assumed in full consciousness. Kelsen, for example, had a scientific pretension to describe ‘pure’ law, observable in full axiological neutrality, went so far as to endorse, with a view to world peace, the creation of a general jurisdiction compulsory for all States, a step which, in his view, necessarily had to precede the advent of the centralization of production and execution of international norms.19 With the advent of formalist doctrines begins the ‘positivist age’, which one may deem to be the golden age of a doctrine devoted to science and succeeding the ‘metaphysical age’, considered as ‘obscurantist’.20 Yet, in an apparent paradox, doctrine as such does not appear in the list of ‘formal sources’ of public international law set forth under Article 38 of the ICJ Statute: doctrine appears as a mere ‘subsidiary means for the determination of rules of law’. This demotion is due more to an effect of law’s presentation,21 (which reflects a result arrived at by means other than

8. English translation: Selections from Three Works of Francisco Suárez, S. J., eds Gwladys L. Williams, Ammi Brown, and John Waldron vol. II (Oxford: Clarendon Press, 1944), pp. 331–​2.   See particularly Hans Kelsen, ‘La technique du droit international et l’organisation de la paix’, in Charles Leben, ed., Hans Kelsen: Ecrits français de droit international (Paris: Presses universitaires de France, 2001), 251–​67. 20   For instance, Roberto Ago praises the ‘fundamental conquest: law’s liberation from all extra-​legal elements, which is a necessary condition to know the law scientifically’; see Science juridique et droit international, vol. 90, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​ Nijhoff, 1956), 851–​958, 902. 21   Oraison speaks of ‘the myth of doctrine’s insignificance’; Oraison, ‘Réflexions sur la doctrine’, p. 555. 19

alain papaux and eric wyler    527 formal logic), rather than to the expression of the effective approach of lawyers, which is made of choices and trials, of appreciations and value judgements. One can, therefore, counter the legalist reading of Article 38, which evidently proceeds from a doctrinal choice, with a pragmatic reading. A pragmatic reading deliberately refuses to endorse the (already formalist!) distinction between ‘formal’ and ‘material’ sources (which aims at nothing but eliminating the latter, and thereby at eliminating the doctrine, since it is generally considered to be a material source).22 A pragmatic reading also refuses to conflate text and norm. In such a confusion, which disregards the cases, determination to control (volonté de maîtrise) and idealism are simultaneously apparent, as it is based on the belief that by manipulating words, one can manipulate reality.

a. Scientific Doctrines Numerous internationalists have been misled by modern lawyers’ rejection of theological natural law (as heralded loudly and clearly by the legalist positivists, who remain wary of all metaphysical references), which they saw, and still see, as an epistemological rupture; in fact, however, continuity prevails. Indeed, the dream of the school of the law of nature and of the law of nations to make law an autonomous science through mimesis with a certain model of ‘exact’ sciences already showed a determination to master the object ‘law’ (the rules). Such a program was reclaimed and realized by the law’s scientists, the positivists, whose mission from then on would only consist in ‘describing’ the formal ordering of the legal systems as they presented themselves hic et nunc. The roles are now perfectly distributed among the actors of the legal theatre:  to the State legislators, the qualification of situations, the production, the main application, and the execution of legal rules; to the judges, the residual and mechanical ‘application’ of those rules by means of demonstrative syllogisms;23 and to the doctrine, the description in the form of ‘legal propositions’.24 One understands that doctrine and judicial decisions are regarded as ‘subsidiary means for the determination of rules of law’: they are barely useful for a mode of thinking that identifies norms with their texts, which are presumed to be

22   See Prosper Weil, who wisely took doctrine for an influential ‘source of inspiration’, like some kind of ‘opinio juris’. Prosper Weil, Le droit international en quête de son identité. Cours général de droit international public, vol. 237, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​ Nijhoff, 1992), 1–​370, 140–​1. 23  ‘The casus is no longer the starting point of the discussion, but instead the arrival point of a long chain of syllogisms whose links bring reason to natural law, natural law to positive general laws, and finally positive general laws to their particular applications.’ Benoît Frydman and Guy Haarscher, Philosophie du droit (Paris: Dalloz, 2010), p. 78. 24   ‘The jurist who describes the law scientifically does not identify himself with the legal authority enacting the norm. The rule of law remains objective description; it does not become prescription.’ Hans Kelsen, Pure Theory of Law, trans. by Max Knight (Berkeley: University of California Press, 1967), p. 79.

528    legal theory as a source univocal and clear, and only exceptionally submitted to non-​problematic interpretations thanks to the resort to other pre-​established rules and ‘methods of interpretation’. The practice of law, as the measure of legal relations from which titles and subjective rights are attributed (distributive justice), is irrelevant for a legal science which considers norms as issued from a Will and directly applicable, and which seeks to formally unify the whole of international law by systematically organizing it. Under that view, doctrine is curiously autophagic: the paradox is that elevating doctrine to the rank of science leads it to suicide. While it is ennobled in appearance by its new ‘scientific’ status, doctrine becomes completely useless in the universe of objective and impartial descriptions, where all ‘observers’, who are interchangeable, will see and say the same ‘truths’—​except if they choose to make ‘value judgements’, which would be in conflict with their function which is exclusively limited to ‘reality judgements’. The inability of abstract and theoretical systems to account for the complexity of international law eventually generates disenchantment for many positivists, and incites them to assign to themselves the modest role of making a ‘realist’ contribution—​in the sense of relativizing international law’s autonomy with regard to politics and the social context—​thereby moving farther from the objective of setting foundations:  after the magical pacta of the voluntarist (Georg Jellinek, Heinrich Triepel) and the Kelsenian Grundnorm came some more policy-​oriented approaches with Guy de Lacharrière, Myres MacDougall, and W. Michael Reisman, or some approaches more sensitive to sociological data with Charles De Visscher, Roberto Ago, or Pierre-​Marie Dupuy. It falls to the positivist-​objectivists—​scientists but not formalists—​to have radicalized the autophagic position: if the norm is automatically delivered by the ‘social fact’—​nécessité fait loi, such a social fact being objectively observable—​does law, which always implies a choice, still exist? And does doctrine still have a raison d’être?25 Only sociology may elucidate this ‘social fact’ which is the exclusive source of law and confuses itself with it. In the same way as positivism is set in a continuous line, and not portrayed as a fracture with modern natural law, so does ‘postmodernism’ (critical legal studies particularly) follow the positivist endeavour which it claims to be ‘deconstructing’. It is the same idealism which made it take Sirius’ point of view to display and criticize the epistemological presuppositions of modern approaches to law,26 while refraining to explain its own (very modern as well). The paroxysm of the 25   While the objectivists do not follow this logic to its extreme, its consequences for doctrine’s lack of utility are at least implicit: Georges Scelle, for example, does not mention doctrine in the analysis of the formal sources developed in his Précis du droit des gens: principes et systématique (Paris: Librairie du Recueil Sirey, 1932–​1934). 26   While reducing the ideas of the authors they criticized into simple products of history, social, and personal background, this doctrine expresses value judgements on these ideas as if it were itself free from any such background: such a point of view is called Sirius’ (or God’s) point of view.

alain papaux and eric wyler    529 determination to control is reached with international law’s dilution into politics (New Haven School), in which international law is then reduced to the role of a rhetorical instrument which can be manipulated to suit particular interests and ‘subjectivities’, and, in so doing, reigniting the long-​held arguments of international law’s sceptics. Alternatively, it is dissolved into Economics according to the theses of the School of Law and Economics (Richard Posner and Jack Goldsmith). From that perspective, doctrine’s self-​diagnosis can only be pessimistic: decline,27 or otherwise, through the proliferation of writings, the fragmentation of the topic ‘law’ and the extension of the reflection outside of international law’s classical fields, will ensue.28 Doctrine is then left to promoting modes,29 or ‘lead-​thematics’, such as State crimes, lex mercatoria, global governance, fragmentation, and then constitutionalization of international law.

b. Symbolic Doctrines ‘Activist’ or symbolic doctrines, which are situated downstream of international law because they are oriented towards future law,30 deserve to be called legal if one takes a non-​positivist conception of law to the former. Aware that they do not master the world yet, symbolic doctrines nonetheless aspire to do so and believe that they can change it, even by way of a brutal rupture; otherwise they would not exist. If sometimes they reclaim themselves from science, their a priori assumptions are generally ideological, and they are only preoccupied by models or programs—​the presentation of law, again. A product of modernity, they come in various shades: Marxist and neo-​Marxist schools which negate law’s autonomy, and as such, the doctrine’s autonomy; third-​world or communitarian schools,31 which aim to redistribute goods for the benefit of less developed States; and the doctrine of fundamental human rights, which focuses on subjective rights based on a universal nature, a conception inherited from modern natural law. Their common characteristic resides in international law’s instrumentation, which becomes a rhetorical weapon for the purpose of reformism: manipulating words gives the power of manipulating the world. One can cite as an example jus cogens, a doctrinal construction, in its univocal meaning of universal, imperative, and non-​derogable right, a title which precedes the measure to follow (the future practice of the international community of States as a   See in 1981 Michel Virally, as referenced in Emmanuelle Jouannet, ‘Regards sur un siècle de doctrine française du droit international’, Annuaire français de droit international 46 (2000): 1–​57, 24–​5; Oraison, ‘Réflexions sur la doctrine’, p. 1. 28   Jean d’Aspremont, ‘La doctrine du droit international face à la tentation de la juridicisation sans limite’, Revue générale de droit international public 112 (2008): 849–​66, 850–​1. 29   See Christian Atias, Epistémologie juridique (Paris: Dalloz, 2002), p. 78 (concerning research generally, not limited to law). 30   See Patrick Daillier, Mathias Forteau, N’Guyen Quoc Dinh, and Alain Pellet, eds, Droit international public, 8th edn (Paris: LGDJ, 2009), n. 38. 31   Also referred to as ‘solidarist’; Jouannet, ‘Regards sur un siècle de doctrine’, p. 43. 27

530    legal theory as a source whole must determine its content, which was still unknown when the principle was established). Recently, the occidental constitutional doctrine has sought to impose a federalist model on the international society and its law, regardless of its specificities, which have long been emphasized (multiculturalism, ‘anarchist structure’). Are these constructions sufficient to conclude that their authors recognize for themselves a more eminent place in the elaboration of international law than the one set forth under Article 38 of the ICJ Statute? Implicitly for sure, explicitly maybe not, given these accounts’ pretention to induce or even record—​establish, really—​the desired change as already realized (international law’s utopian dimension).32 Such an approach expresses more a strategy than a retreat: reformist doctrine exhibits great creativity (through scholars working as ‘system-​makers’).

2. Pragmatic (Practice-​Oriented) Doctrines33 ‘Any doctrine tends to increase the knowledge of others. ’34 In opposition to the formalists, scientists, and activists stands an authentic ‘doctrine savante’, with a recognized and accepted knowledge (auctoritas), a doctrine which is neither a ‘formal source’ nor a ‘subsidiary means’, but a persuasive source of inspiration—​because it aspires to conviction and not to scientific certainty;35 as such, it cannot be classified.36 Its influence is real, even if difficult to measure (as a matter of principle, ICJ decisions never refer to such doctrine, even if the Court is influenced by it, with the exception of the International Law Commission (ILC)). Issued from different cultural traditions (see Article 9 of the ICJ Statute) but united by a common knowledge of the practice of international law,37 these scholars—​one thinks of the most qualified publicists of Article 38—​ work for the transmission of knowledge and legal experiences,38 by closely following international law in action. The effort here relates much less to the title than 32   Serge Sur, ‘Le droit international—​Système juridique et utopie’, Archives de philosophie du droit 37 (1987): 35‒45. 33   The expression ‘pragmatic (practice-​oriented) doctrines’ is sometimes used by the doctrine: see d’Aspremont, ‘La doctrine du droit international’, p. 865. 34   Alain Sériaux, ‘La notion de doctrine juridique’, Droits 20 (1994): 65–​74, 70. 35   Philippe Jestaz, Les sources du droit (Paris: Dalloz, 2005), p. 117. The English doctrine is familiar with this conception:  Ian Brownlie speaks of ‘authoritative source’; Ian Brownlie, Principles of International Law, 7th edn (Oxford: Oxford University Press, 2008), p. 25. 36  Jestaz, Les sources du droit, p. 113. 37   ‘Law may only be the work of practical reason, and not a produce of pure reason: it inserts itself in the context of an activity relating to authority  .  .  .  and not in the context of a scientific activity placed . . . under the objective dependence of experimental data.’ Paul Amselek, ‘Propos introductif ’, in Amselek, ed., Théorie du droit et science (Paris: Presses universitaires de France, 1994), 7‒12, 10. 38   ‘Knowledge (auctoritas) may be transmitted to others who will make it theirs, but it cannot be delegated—​which opposes it diametrically to power (potestas).’ Sériaux, ‘La notion de doctrine’, p. 71.

alain papaux and eric wyler    531 to the measure, to the inductive research of regularities beyond the cases’ singularities, far from all deductive deliberation of formal systems,39 or from a priori affirmations of universal rules-​norms to which one should abide; in short, a non-​ formalist doctrine, which explains—​and thereby reinforces—​the links between arbitral decisions or States’ practices. Charles Rousseau’s approach, particularly with respect to States’ acquisition of territorial sovereignty, offers an illustration. He retraced the evolution of the ‘effectivity doctrine’ from Roman law until its decline in the twentieth century, touching upon the practice of maritime powers from the seventeenth to the eighteenth centuries to grant charters to private companies for trade monopolies in remote territories,40 entrusting them to occupy those territories, so to speak, ‘on behalf ’ of their Sovereign by inducing indigenous chiefs to grant them ‘concessions’.41 His critical analysis of the main arbitral decisions highlights that in that field,42 sovereignty titles derive from the degree of ‘lasting’ and ‘peaceful’ (un-​or rarely contested) occupation and not from purported territorial relations evidencing only precarious effectivity, such as mere ‘discovery’, territorial contiguity, or continuity. In stark contrast with this pragmatic approach, the idealist human rights doctrine merely deduces new subjective rights from those previously existing (so-​called human rights generations), such the right to leisure and paid vacation from the right to work, or the right to food, the right to water, and the right not be born handicapped from the right to health. Such universal titles are attributed a priori independently from all context and all concrete relations, which is characteristic of symbolic doctrine.

a. A Mediating Doctrine Law’s pragmatic approach leads to restoring the interrelation of doctrine and jurisprudence: scholars very often walk hand in hand with the international judges to whom they identify. Scholars identify themselves to international judges ratione personae—​scholars become judges because they are scholars, and through their individual and dissenting opinions published along with the judgments, judges become scholars again—​but also ratione materiae—​these individual opinions are often as much or even more convincing than the majority’s decisions, and the case comments, which judges read very attentively, contribute effectively to the development of case law, and more generally to the development of international law in practice. 39   Vittorio Villa also makes a distinction between a doctrine devoted to practice and a doctrine devoted to legal theory; see Vittorio Villa, ‘La science juridique entre descriptivisme et constructivisme’, in Amselek, Théorie du droit et science, 281‒91, 282. 40   The famous Dutch, French, and British ‘East India Companies’; the Dutch ‘West India Company’; or the British Companies of the Hudson Bay, East Africa, or South Africa. 41   Charles Rousseau, Droit international public, vol. III (Paris: Sirey, 1977), pp. 154–​6. 42   See particularly the arbitral decisions issued in the disputes relating to islands, ibid., pp. 147–​73.

532    legal theory as a source Such an identification between scholars and judges is based on the similitude of their respective place and role which is captured by one word—​mediation: first, between the litigants43—​arbitrator comes from arbiter,44 the present and personally disinterested witness (so neither objective nor arbitrary, but subjective); secondly, between text and norm, since only a dynamic interpretation of the law at issue in the case ensures the link towards the discovery of a just solution, often with the help of natural law, understood as the ‘nature of things’—​concrete data and the experimental knowledge deriving from that data and suggesting several solutions, among which judges will choose the one that appears most equitable. Finally, the ‘doctrine savante’ lies between the practice of law and the knowledge that one extracts from it, in a bridging position which allows it to present law’s practice45—​particularly judicial decisions—​in a learned manner, in other words, to comment upon that practice and put it in order.46 Doctrine’s mediating function shows the pre-​eminence of the primary finality of law: realizing in concreto distributive justice, a finality which has been forgotten by modern conceptions.

b. A ‘Doctrine Savante’ The ‘doctrine savante’ shares and perpetuates through teaching and publications a knowledge which can be qualified as practical, jurisprudential, humble (because it is always situated), contingent, and never closed, because it advances argumentation and likelihood, as opposed to demonstrations and truth. The ILC offers an example: its method of codification starts with an examination of international and national judicial decisions, of State practice, and of the authorized doctrine. Aware of its own creative contribution—​with no clear boundaries between codification and progressive development47—​the ILC submits to States’ 43   ‘Sometimes judges are actually called “mediators”, the thought being that if one succeeds in getting what is intermediate, one will get what is just. The just, then, is something intermediate, if in fact the judge is.’ Aristotle, Nicomachean Ethics, trans. Sarah Broadie and Christopher Rowe (Oxford: Oxford University Press, 2002), Book V, chap. IV, p. 164. 44  ‘The arbiter . . . judges by coming between the two parties from outside, like someone who has been present at the affair without being seen, who can therefore give judgement on the facts freely and with authority, regardless of all precedent in the light of the circumstances. This connection with the primary sense of “witness who did not form the third party” makes comprehensible the specialization of the sense of “arbiter” in legal language.’ Emile Benveniste, Indo-​European Language and Society, trans. Elizabeth Palmer (Coral Gables: University of Miami Press, 1974), p. 398. 45   André Oraison, ‘Réflexions sur la doctrine’, p. 523. 46   See the scholarly works devoted to the issue of effectiveness in international law, which provide learned elaborations closely following the rich case law; see e.g., Charles Rousseau, Droit international public, 3rd edn (Paris: Dalloz, 1965); Charles De Visscher, Les effectivités du droit international public (Paris: Pedone, 1967); Marcelo Kohen, Possession contestée et souveraineté territoriale (Paris: Presses universitaires de France, 1997); Giovanni Distefano, L’ordre international entre légalité et effectivité (Paris: Pedone, 2002). 47   Roberto Ago, ‘La codification du droit international et les problèmes de sa réalisation’, in Roberto Ago, ed., Recueil d’études en hommage à Paul Guggenheim (Genève: Droz, 1968), 93–​131, 94.

alain papaux and eric wyler    533 acceptance a text (custom is a norm without text) whose influence on jurisdictions goes as far as explicit reference, irrespective of whether the text has been included in a duly ratified treaty, as exemplified by the famous Articles on Responsibility of States for Internationally Wrongful Acts (said to be informal), which has been used for years by the ICJ, even though positivism itself refuses to consider it as a ‘formal source’. Scholarly societies offer another example, such as the Hague Academy of International Law, the International Law Institute, the American Law Society, Harvard Law School, la Société française pour le droit international, the International Chamber of Commerce, and the American Bar Association, which issue resolutions, codes of conduct, declarations, recommendations, charters, and other directives elaborated on the basis of a practice study and qualified as soft law only because they are a priori not enacted as formally binding. Here, the targeted systematization amounts to compiling and ordering the results rather than fashioning abstractions, deducing, and formalizing. The aim is not so much to inflect practice as to present it, in order to understand it better. When the doctrinal effort is acceptable and commensurable, it will really influence practice. It becomes clear why the ‘doctrine savante’ reunites around, and is interested in, the places (topoi) where international law is in action, where it is exercised (essentially through national practices); and why the ‘doctrine savante’ is fundamentally comparatist and handles common legal concepts (beyond linguistic difficulties) by analogy and not with an illusory univocity. In its view, public international law in its neglected dimension of jus auctoritas looks more like private international law,48 than like international politics. Unlike the formalist doctrines which are focused on the potestas dimension of international law and consequently obliged to deal with their marginality, the ‘doctrine savante’ knows that it is influential, that it flourishes and does not decline, that it participates in the creation and diffusion of international norms,49 thereby orienting practice. As such, it includes not only judges, university scholars, and researchers, but also diplomats and public and private counsellors (in particular the consultants of transnational companies)—​sometimes in concurrent roles, given that professors issue more and more legal opinions—​in other words, all lawyers closely following international practice. This doctrine’s practical efficiency, particularly in dispute prevention and resolution (most international disputes are diplomatically resolved, as is well known), cannot be underestimated. But above all, the expression ‘learned community’ designates in the first place the doctrine which 48   See Joe Verhoeven, ‘Droit international privé et Droit international public: où est la différence?’, Archives de Philosophie du Droit 32 (1987): 23–​34; Joe Verhoeven, Considérations sur ce qui est commun, Cours général de Droit International Public, vol. 334, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2002), 9–​434. 49   ‘The works of learned lawyers (juristes savants) . . . are not only a laboratory of ideas, but also of norms to be . . .’; Philippe Jestaz, Le Droit (Paris: Dalloz, 2012), p. 111; Brownlie, Principles of International Law, p. 25.

534    legal theory as a source has been sedimented over decades by tradition,50 through teachers-​researchers confronting the same fundamental questions and themes of international law; the one which exemplarily reunites the now-​famous authors—​including many prominent judges—​of the general rules of the law of peace and of the General Courses of the Hague Academy of International Law in The Hague. To conclude this analysis, we observe that in international law, doctrine is neither auxiliary nor ancillary, but principal, at its very foundation, even today, and in spite of its own self-​image. Doctrine is the field of ideas, inspirations, and aspirations from which the international legal order emerged and from which it still nourishes itself; from that perspective, international law is an eminently ‘doctus’ law and legal technicalities cannot overshadow the importance of doctrine.

Research Questions • Because the majority of authors already focus primarily on potestas (power relations) or symbolic speeches in public international law, new studies should instead examine phenomena related to auctoritas. Discuss. • While the linguistic turn is widely recognized, at least formally, it is rarely practiced; there is a need for further semiotic analyses of legal interpretation in international law, particularly about the differences between text and norm. Discuss.

Selected Bibliography Abi-​Saab, Georges, Cours général de droit international public, vol. 207, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1987). Atias, Christian, Epistémologie juridique (Paris: Dalloz, 2002). Brownlie, Ian, Principles of International Law, 7th edn (Oxford:  Oxford University Press, 2008). Detienne, Marc, and Jean-​Pierre Vernant, Les ruses de l’intelligence. La mètis des Grecs (Paris: Flammarion, 1974). Eco, Umberto, Sémiotique et philosophie du langage (Paris:  Presses universitaires de France, 1988).

  Better formulated by Vittorio Villa: ‘the traditions of legal research’. Villa, ‘La science juridique’, p. 287.

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alain papaux and eric wyler    535 Oraison, André, ‘Réflexions sur la doctrine des publicistes les plus qualifiés des différentes nations’, Revue belge de droit international 2 (1991): 507–​80. Papaux, Alain, and Rémi Samson, ‘Interpretation of Treaties Authenticated in Two or More Languages: Commentary ad Article 33’, in Pierre Klein and Olivier Corten, eds, The Vienna Conventions on the Law of Treaties: A Commentary (Oxford: Oxford University Press, 2011), 866–​86. Papaux, Alain, and Eric Wyler, ‘Le droit international public libéré de ses sources formelles: nouveau regard sur l’article 38 du Statut de la Cour internationale de justice’, Revue belge de droit international 2 (2013): 525–​84. Supiot, Alain, Homo juridicus (Paris: Seuil, 2005). Vittorio Villa, ‘La science juridique entre descriptivisme et constructivisme’, in Paul Amselek, ed., Théorie du droit et science (Paris: Presses universitaires de France, 1994), 281‒91.

Part I I I

THE FUNCTIONS OF THE SOURCES OF INTERNATIONAL LAW

Section  XI I I

SOURCES AND THE LEGALITY AND VALIDITY OF INTERNATIONAL LAW

Chapter 25

SOURCES AND THE LEGALITY AND VALIDITY OF INTERNATIONAL LAW WHAT MAKES LAW ‘INTERNATIONAL’?

Pierre D’Argent

I. Introduction Language is the symbolic activity of the human species par excellence. With words, human beings communicate with themselves and between themselves about things of their respective minds and things of the world, as their respective minds and senses perceive it. As a symbolic activity, language can be used to (pretend to) just describe ‘things of this world, which exist and, for that reason, delight us’,1 or   Czeslaw Milosz, Provinces, Poems 1987–​1991 (Carcanet:  Manchester, 1991), p.  40 (‘Conversation with Jeanne’). 1

542    sources and the legality of international law things of our minds (ideas, feelings, memories). Language, as a symbolic activity, can also be (entirely or partially) prescriptive: words can be assembled in such a way that they do not symbolize or represent reality as the speaker considers it to be, but, rather, as reality ought to be in the mind of the speaker. Those prescriptive words are not self-​fulfilling and call for human action; they inform human behaviour for the transformation of reality, to make it conform to what is envisaged under those words. The activity of conforming behaviour to prescriptive words creates in turn a social reality common to those submitted to those words, as they are shared among them. As legal rules, which give law its concreteness, are (like any other prescriptive sentences) only made of words, the reason why some sentences appertain to the realm of law, and others do not, has nothing to do with the linguistic fabric used to express and make law, i.e. words. However, it is important for human beings, either as individuals or in any other corporate or institutional capacity, to be able to distinguish within the flow of words which sentences are considered as binding legal commands and which of those sentences do not have such quality. The reason why it is important to be able to discern the words that are those of the law within the flow of words is that, as Hans Kelsen observed, legal norms are about ‘how . . . one ought to behave’.2 The distinction between law and not law will itself be made possible by resorting to specific words and sentences which fulfil the function of identifying what counts as law at any given moment in time for any given society. Those identifying words and sentences constitute what can be called a theory of the sources of law. Such theory, usually and minimally, identifies authorities and processes used to produce sentences deemed to have a legal character. In other words, it is submitted that a theory of the sources of law helps to identify which words count as law by clarifying who has the authority to make law and how law is made. It is crucial to stress that a theory of sources is never abstract or formal, or rather that it formalizes and always reflects for a specific community a political understanding of who is entitled to bind it through law and how such authority can be exercised. This chapter is divided into three parts. In section II: The Structure of International Law and the Crucial Nature of the Issue of Sources, the chapter recalls the structural reasons inherent to international law that explain the specificity and the crucial character of the issue of sources—​ understood as a process of legal identification—​in that legal order, as opposed to sources in domestic law. In section III:  Article 38 of the ICJ Statute, the chapter contextualizes Article 38 of the Statute of the International Court of Justice (ICJ) by recalling its specific purpose,3 i.e. determining and delimiting international legality. By focusing on its 2  Hans Kelsen, ‘On the Basis of Legal Validity’, trans. Stanley L. Paulson, American Journal of Jurisprudence 26 (1981): 178–​89, 179. 3   Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993).

pierre d’argent   543 limited but nevertheless important function, the chapter intends to diffuse some of the criticism usually addressed to Article 38 and, at the same time, to show that what is actually at stake in a theory of the sources of international law is not so much the distinction between law and not law (nor the intractable questions about international law qua law), but the distinction between law that can be considered as having an international legal character, and law that cannot be considered as international. To put it simply: in the quest for international law, what matters is not so much the substantive (law), but the predicate (international). Section III: Article 38 of the ICJ Statute also questions the difference between formal and material sources of international law by addressing the multiple normative nature of international obligations. In section IV: The Multiple Legal Character of Sources, the chapter questions whether and to what extent a theory of sources really achieves its objective of determining what unequivocally counts as international law. Such questioning builds on a puzzling phenomenon: the fact that the same source or normative vehicle, and the obligations it contains, can have a dual legal character, appertaining at the same time to different legal orders. The chapter thus brings to light the awkward fact that international legality is not necessarily normatively exclusive. As key to such relative legality, the chapter argues that while the same set of words may have different legal characters and appertain to different legal orders, each is susceptible to prevail in turn according to the context in which the rule is relied upon, rather than according to some ontological understanding of what law is as predicated by a source theory. The determination of legality or validity through a source theory is therefore always relative and partial, even within the legal order that the source theory pretends to circumscribe. All along, the chapter relies more heavily on primary sources, including case law, than on the numerous theoretical accounts of the questions of legality and validity that exist in international legal scholarship. This is simply because ‘law, like life and love, does not need theory to work effectively’, even if ‘law needs good ideas to make it better’.4

II.  The Structure of International Law and the Crucial Nature of the Issue of Sources In international law, the need for identifying sentences considered as containing legal obligations is no less important than in domestic law. In other words, in   Philip Allott, ‘Reviews of Books’, British Yearbook of International Law 80 (2009): 409–​22, 410.

4

544    sources and the legality of international law international law as well as in domestic law, the function of sources theories is primarily to help to decide on the existence of sentences qua (respectively, international or domestic) law. In that sense, it can be said that the function of sources is to address the legal character of sets of words, i.e. their legality understood as the specific ‘normative quality of legal norms as opposed to other social norms’.5 Likewise, validity, as understood by Kelsen, is ‘the specific form of existence of rules’:6 to say that a norm is valid is another way of saying that it is law, which requires to determine whether it conforms to the rule about rules. At a minimalist level, a theory of sources fulfils indeed the function of rule(s) of recognition, within the meaning of H.  L. A.  Hart’s concept. In international law, the theory of sources would be like a meta-​rule determining what counts as law, i.e. which sentences are considered to have legal existence within international law, which sentences have an international legal character. What matters, however, is to realize that the ‘which’ question the sources theory answers is not just an abstract issue, but that it always hides a ‘who’ and a ‘how’: the law-​ascertainment function of sources theories is substantially important for the power allocation and limitation they convey. To that extent, and even if domestic law and international law share a similar need for the identification of legal rules because of the sheer linguistic fabric by which the latter are enunciated, the issue of sources of international law is raised in a very different context. Two structural elements that have shaped international law since its origin in modern times, and that are intertwined, explain why the identification function of sources is more crucial—​and somehow more dramatic—​in international law, compared to domestic law. First, international law is fundamentally decentralized because it stems from a social order which, at least originally, is very much alien to any idea of supreme authority of one (State) subject over another. Based on the postulate of equal sovereignty of States, international law does not establish itself through a centralized normative production system, unlike what is usually the case in domestic law, where the allocation of authority to produce legal commands is pretty clear most of the time. Of course, domestic legal orders still vary to a large extent, but they nevertheless bear overall structural similarities at this stage of human history, notably because of the quasi-​universal import of some form of division—​rather than strict separation—​of powers as conceptualized by Montesquieu. As a result, and as opposed to what is usually the case in domestic law, the international law-​making processes are more diffuse, decentralized, and blurred. They are not established once and for all, and they are not decreed. 5   Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–​85, 172. 6   Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011), p. 50.

pierre d’argent   545 The original decentralized character of international law resulting from the equal sovereignty of States does not exclude the possibility of creating a centralized mechanism to produce certain legal commands. In fact, binding Security Council resolutions epitomize such possibility. However, because of the decentralized character of international law, any centralization of the power to make law will always need to be traced back to State consent and pacta sunt servanda. In international law, institutional unilateralism is explained by and grounded in wilful submission and reciprocity, like any other contractual commitment.7 That is why the incompleteness of Article 38 of the ICJ Statute in not mentioning binding decisions of international organizations is not a real issue—​I shall revert to this. Furthermore, the emergence of shared interests in the form of erga omnes obligations (be they inter partes or not) does not change anything as far as the decentralized nature of international law is concerned. Rather, it confirms the horizontal structure of the international legal order by entrusting every single subject bound by the said rules with the interest to require compliance with them for the benefit of all because of the shared higher values protected under the erga omnes (partes) obligations.8 In such a decentralized and horizontal system, the existence of rules of recognition is problematic because, to be such, those rules must necessarily be considered as such by every single subject. The rule of recognition must be undisputable and common if it is to fulfil its purpose. But because international law is what it is, such rule cannot be imposed from above, while it would be well beyond the powers of the only universal authority (i.e. the UN Security Council) to impose such a rule. In other words, the rule of recognition could not stem from any different process than general consent of those who must obey the very law identified under such rule. There is a second reason that explains why the issue of sources takes a real dramatic and deeply political turn in international law. If one continues to adhere to the Lotus finding according to which international law is a permissive legal order,9 then it is clear what is at stake in any source doctrine is huge. Indeed, absent any international obligations binding on the State concerned, the latter is free to do as it pleases and does not need to ground its action in any rule of international law by which it is authorized to act as it does; the State finds in its own sovereignty the sufficient legal ground for its action. One may question the continued adequacy of the Lotus principle, or even dispute it, but, as a matter of judicial reasoning, the argumentative line of the Kosovo advisory opinion seems to confirm its 7   Case of the S.S. ‘Wimbledon’ (United Kingdom and others v Germany) (Judgment) PCIJ Rep Series A No. 1 (1927), p. 25. 8   Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422, 449–​50, paras 68–​9; Institute of International Law, Obligations and Rights erga omnes in International Law, Krakow Session (2005), , accessed 9 October 2016. 9   The Case of the S.S. “Lotus” (France v Turkey) (Judgment) PCIJ Rep Series A No. 10 (1927), p. 19.

546    sources and the legality of international law basic relevance.10 If that is the case, then ‘[t]‌o what extent can history be written in advance?’,11 seems to be the underlying question for any source theory in a system where freedom of action is posited absent any law. Hence, because a source theory is about the identification of sentences qua (international) law, and because, as recalled above, there is no centralized mechanism to produce a complete and authoritative theory of sources in the form of a (set of) rule(s) of recognition, any discourse on the sources is itself a political enterprise. If some want to expand the realm of legal sources, they will be opposed by those who resist the idea of more law in such a form and/​or by such authority/​actor because they reject the idea of constraining States in such a way. And vice versa. Therefore, it comes as no surprise that common ground will be found through the lowest common denominator, so that the undisputed list of sources will remain short and what serves as rule of recognition, rather rudimentary.

III.  Article 38 of the ICJ Statute Since it was inserted in the Statute of the Permanent Court of International Justice (PCIJ) in 1920,12 Article 38, which became part of the ICJ Statute in 1945, has served as a constant reference in any textbook, book chapter, or article about the ‘sources’ of international law—​in that regard and to a large extent, this chapter is just another addition to a long string of comments of that provision. In retrospect, one cannot help wondering how scholars were able to write and speak about the sources of international law, let alone about international law itself, without Article 38. But of course they did, and the notion of ‘sources’ in international scholarship predates the PCIJ Statute.13 Prior to it, Article 7 of the (unratified) 1907 Hague Convention XII, which envisaged the creation of an International Prize Court, was sometimes referred to as a provision that made the various sources of international law 10   Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403, 426, para. 56. For a recent reappraisal of the Lotus case and principle, see An Hertogen, ‘Letting Lotus Bloom’, European Journal of International Law 26 (2015): 901–​26. 11   Pierre d’Argent, ‘Wrongs of the Past, History of the Future?’, European Journal of International Law 17 (2006): 279–​88, 279. 12   Statute of the Permanent Court of International Justice (Geneva, 13 December 1920, League of Nations Treaty Series, vol. 6, pp. 380–​413). 13   See e.g., Frederick Pollock, ‘The Sources of International Law’, Law Quarterly Review 18 (1902): 418–​29; Alexandre Mérignhac, Traité de droit international public, 1ère partie (Paris: LGDJ, 1905), p. 79; Frantz Despagnet, Cours de droit international public, 4th edn (Bordeaux: Sirey, 1910), p. 69; Paul

pierre d’argent   547 explicit.14 The preamble of the Covenant of the League of Nations did not use the word ‘sources’, but by referring to ‘the firm establishment of the understandings of international law as the actual rule of conduct among Governments’ and to the ‘scrupulous respect for all treaty obligations’,15 it certainly pointed to the most obvious and accepted sources of international law, i.e. custom and treaty. The preamble of the Charter of the United Nations (UN) refers to the ‘respect for the obligations arising from treaties and other sources of international law’:16 the formula is more encompassing and open-​ended than the League preamble, while at the same time consecrating officially, and probably for the first time as part of positive law at a universal level, the idea that ‘sources of international law’ exist. In the preamble of the Charter, it is very clear that the word ‘sources’ is used to refer to instruments or processes, like treaties, that enable the creation of ‘obligations’: what matters and what must be respected are not the sources themselves, but what the sources contain and convey, i.e. obligations that are deemed to be international obligations because they are established under instruments or processes (sources) that are deemed to have an international law character. In other words, the sources only matter because they are the vehicle of obligations. Of course, this view can be contested or, rather, the precise obligation arising under a source is sometimes debatable. Take, for instance, a border treaty by which two neighbouring States agree on geographic coordinates which together form a line delimiting their respective territories in a specific sector. Once it enters into force between the contracting parties, such a treaty is undoubtedly binding between them and must be performed in good faith, the boundary ‘achiev[ing] a permanence which the treaty itself does not necessarily enjoy’.17 But what are the obligations established by that treaty that must be performed? The obligation to respect the territorial integrity of each State is not created by the treaty, as it pre-​exists it as a matter of customary international law reflected in Article 2 (4) of the UN Charter.18 At most, one could say that the border treaty gives a concrete spatial scope of application (or of validity) to such customary obligation between specific States, and, furthermore, that by agreeing on the border, both States undertake not to dispute the border as established under the treaty anymore—​the treaty could in such a case be viewed as

Fauchille, Traité de droit international public, T. 1, 8th edn (Paris: Rousseau, 1922), p. 40. In the third edition of his course published in Italy in 1927, seven years after the adoption of the PCIJ Statute and translated by Gilbert Gidel two years later, Dionisio Anzilotti refers to the concept of sources without referring to Article 38: Dionisio Anzilotti, Cours de droit international, trans. Gilbert Gidel (Paris: Sirey, 1929), p. 66. 14   See e.g., Ernest Nys, Le droit international. Les principes, les théories, les faits, T.  1 (Bruxelles: Weissenbruch, 1912), p. 171. 15   Covenant of the League of Nations (Paris, 29 April 1919, 225 CTS 195), Preamble. 16   Charter of the United Nations (UN) (San Francisco, 26 June 1945, 1 UNTS 16). 17   Territorial Dispute (Libyan Arab Jamahiriya v Chad) (Judgment) [1994] ICJ Rep 6, 37, para. 73. 18  ICJ, Kosovo Advisory Opinion, p. 437, para. 80.

548    sources and the legality of international law containing similar and reciprocal unilateral undertakings, which would be the real substantive obligations under it. It would be useless to comment on Article 38 at length and to repeat here the usual critiques addressed to it: that it does not create a hierarchy between the sources, nor a hierarchy of norms; that it is incomplete; that the way it refers to customary international law is circular at best or cryptic at worse; that the State-​centrism on which it is based is outdated, etc. Those critiques are well known and, for most of them, well founded. However, it is quite remarkable that despite those long-​standing criticisms, States have (so far) not considered it necessary to amend it. Maybe the reluctance of States to revise an imperfect old provision that has proved useful can be explained by the greater uncertainty resulting from scholarly debates on sources—​uncertainty not being a legal virtue. Be that as it may, any analysis of Article 38 should start by recalling that it is inserted in Chapter II of the ICJ Statute, dealing with the ‘Competence’ of the Court. After setting out the jurisdiction ratione personae (Articles 34 and 35) and ratione materiae (Articles 36 and 37)  of the Court, Article 38 closes Chapter II by restricting the contentious jurisdiction of the Court, when it exists, to the settlement of disputes by the application of rules having an international legal character, and by indicating which of those are in relation to disputants that may come within the ratione personae contentious jurisdiction of the Court. Such restriction stands in contrast to the legal scope of the ICJ’s advisory jurisdiction, by which the Court may give opinions about ‘any legal question’ at the request of the UN organs or organizations referred to in the Charter.19 True, the Court has, so far, only delivered opinions about questions of international law. But nothing in the Statute or the Charter limits its advisory jurisdiction to issues of international law. The reason why the ICJ’s contentious jurisdiction is restricted to deciding cases by application of rules of international law, to the exclusion of rules of any other legal order or having any other legal character, is to be explained by the ratione personae scope of that jurisdiction: because the Court entertains disputes between States, it would be unthinkable that the legal rules used to settle those disputes, i.e. the rules giving reasons for the Court’s decision, be those of one of the disputing parties, or of a third State or entity. The rules used to decide the case must necessarily be legal rules that are out of reach of the unilateral will of any of the disputing States, but to which both can nevertheless relate, rules that stand above and are common to claimant and respondent.20 The reason for this is obvious: if it were not the case, no   Article 65 of the ICJ Statute.   One could argue that unilateral acts of States lack such quality and that, therefore, the above consideration is misplaced. However, if unilateral undertakings of States are a source of obligations for the State committing itself, it is because of the ‘principle of good faith’, which the ICJ found to be ‘one of the basic principles governing the creation and performance of legal obligations, whatever their source’ (Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253, 268, para. 46). The requirement of good faith stands above and is common to the disputing States. On the other hand, if a treaty, binding on the parties to the dispute, provides for the application of domestic law (of one of the parties, or of a third State), the latter will be applied by the Court as a result of the treaty itself. 19

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pierre d’argent   549 State would accept the Court’s jurisdiction, while the authority of its judgment and the fairness of the proceedings would be in jeopardy. However, such reason does not hold when it comes to the advisory jurisdiction of the Court; it is submitted that this is the reason why the advisory jurisdiction need not be restricted to issues of international law, but may relate to ‘any legal question’.21 The restriction imposed by Article 38 upon the contentious jurisdiction of the Court results also from a contrast which is inherent in the division between its paragraphs 1 and 2: because the latter requires the specific agreement of the parties for the Court to have the ‘power . . . to decide a case ex aequo et bono’,22 it reinforces the fundamental rule set out in paragraph 1 according to which the Court’s jurisdictional power is, as a matter of principle, limited to the settlement of disputes by the application of rules having an international law character—​provided those disputes fall within the Court’s jurisdiction, both from a personal and material point of view. So far, States have refrained from using the possibility offered by Article 38 (2)—​a fact which confirms their reluctance to let third parties decide their disputes based on principles not positively grounded. However, if the disputing parties reach an agreement within the meaning of Article 38 (2), it can (depending on its wording) have the effect of excluding the application by the Court of rules of international law that would otherwise be relevant for settling (parts of) the dispute. It is to be noted that such exclusion does not affect the binding force of the Court’s judgment under international law: Article 94 of the Charter and Article 59 of the ICJ Statute apply equally to decisions reached ex aequo et bono. In other words, even based on ex aequo et bono, a judgment of the ICJ creates obligations under international law, 21   Whether the ICJ would exercise its advisory jurisdiction in relation to a legal question that is not a question of international law is another matter, as the Court has always considered that it could decline to exercise its jurisdiction for ‘compelling reasons’: see ICJ, Kosovo Advisory Opinion, pp. 415–​16, paras 29–​30. So far, those reasons have not been otherwise made explicit, but could arise if the Court were to be requested to address some legal question under the domestic law of a State. 22   Under Art. 7 of the 1907 Hague Convention XII, the International Prize Court had jurisdiction to decide cases on the basis of the provisions of any ‘treaty in force between the belligerent captor and a Power which is itself or whose subject or citizen is a party to the proceedings’. Absent such treaty, it had to apply ‘the rules of international law’, i.e. customary international law. Furthermore, ‘[i]‌f no generally recognized rule exists, the Court shall give judgment in accordance with the general principles of justice and equity’: under that Art. 7, the Prize Court had jurisdiction to settle ex aequo et bono in the absence of international legal rules, even in the absence of the parties’ agreement for that purpose. Convention (XII) Relative to the Creation of an International Prize Court (Hague Convention XII) (The Hague, 18 October 1907, 205 CTS 381). The drafters of the PCIJ Statute understood that States would equally be reluctant to accept the new Court’s jurisdiction if it was again the case; therefore, ‘general principles of law recognized by civilized nations’ were inserted in Art. 38 to meet the risk of non liquet that the ‘general principles of justice and equity’ were supposed to address under the Twelfth Hague Convention. The turn to positivism is obvious under Art. 38, since ‘general principles of law’ are understood to be principles common to the main domestic legal orders of ‘civilized nations’: the convergence of domestic laws makes ‘general principles of law’ qua international law somehow resting again on the implied consent of States, while the Court is prevented from resorting to natural law absent specific State consent for that purpose.

550    sources and the legality of international law since the duty to comply with it is no less than when the decision reached is the result of the application of pre-​existing rules of international law. The idea according to which judgments are binding because they would simply state what is already required by a binding rule of (international) law is thus partially defeated by the ICJ Statute itself. Because, absent any specific agreement between the parties in favour of an ex aequo et bono settlement, the ICJ may only decide disputes falling within its ratione personae and ratione materiae jurisdiction in accordance with international law, the real issue as far as the Statute is concerned is not so much what is ‘law’, but rather what is ‘international law’. In other words, it is important to contextualize Article 38 and to realize that its aim and purpose are not to list or describe the sources of law, but to shed light on the processes by which rules acquire a distinctive international legal character. Article 38 is not about legality as such, but about international legality, and regretting that it does not rest on an elaborate theory of legality is simply misplaced. In addressing how legality can be considered international, Article 38 is—​as was made clear in the first part of this chapter—​inevitably premised on a hidden theory of international subjectivity, which in turn dictates the processes through which international law arises. When Kelsen writes that ‘[i]‌nternational law can be defined solely by the way in which its norms are created’,23 he is of course correct because the way—​or rather, ways—​in which international norms are created distinctively differ from the ways in which legal norms arise in domestic legal orders. However, by focusing on rules, Kelsen somehow forgets to mention that such ways necessarily betray, or rather reflect, a certain understanding of the law-​making subjects of international law.24 But being entitled to social relations regulated under the law, i.e. being a legal subject, remains politically loaded in any legal order: it is a matter of substantive choice by the social body, eventually later regulated under the law. Furthermore, legal subjectivity can be passive (having rights or obligations), or active (being able to participate in the creation of legal rules), or both. To that extent, and despite its rudimentary character or imperfections, Article 38 is useful because it helps to identify which sets of words count as international law by clarifying who has the authority to make such law and how such law is made. Of course, because Article 38 establishes a ‘complete coincidence of lawmakers and those to 23   Hans Kelsen, Pure Theory of Law, trans. Max Knight from 2nd German edn (Berkeley: University of California Press, 1967), p. 335. 24   See Antônio Augusto Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium (Leiden: Martinus Nijhoff, 2010), p. 113, noting that the ‘process of formation of contemporary International Law is a challenge to its scholarship’ and ‘a basic issue which cannot be dissociated, e.g., from that of the expansion of international legal personality in International Law’. On the link between the issue of sources and the issue of subjects, see also Pierre d’Argent, ‘Le droit international: quand les sources cachent les sujets’, in Isabelle Hachez Yves Cartuyvels, Hugues Dumont, and Philippe Géraude, eds, Les sources du droit revisitées, vol. 4, Théorie des sources du droit (Limal: Anthémis, 2013), 243–​64.

pierre d’argent   551 whom law was addressed’,25 it fails to take account of the evolution of international law as far as its addressees are concerned. However, nothing in the way Article 38 refers to treaties, customary international law, or general principles prevents such evolution. Furthermore, as it stands, Article 38 does not prevent the extension of the active legal personality to international organizations, or other subjects, as lawmakers. The reason why Article 38 does not elaborate beyond States is due to the limitations inherent in the ratione personae contentious jurisdiction of the ICJ. In that sense, international legality under Article 38 is just a matter of conformity: sentences will be considered as having an international legal character if they conform to the processes it identifies to produce international law, such processes being themselves a reflection of the nature of the primary subjects of international law that can be parties to disputes coming within the jurisdiction of the Court. It is, of course, possible to consider that such understanding of what a source theory is about is too limited and that the various reasons for the law—​or to use Lassa Oppenheim’s words, the ‘cause’ of the law26—​should also be accounted for. However, trying to explain why there is (such a rule of) international law is a different matter altogether than identifying who can make it and how law is made. While the former begs the question of the material sources of the law, the two latter issues relate to the sources of the law in the formal sense—​and Article 38 is clearly confined to sources in a formal sense. Also, it is possible to consider that the notion of (international) legality conveyed by such a formal approach is far too reductive and that some assessment of conformity with moral requirements or substantive values should be included before concluding that rules deserve to be characterized as legal. A subtler version of the substantive approach conditions legality to the fact that the author of the law and/​or the procedure for its creation conform to some substantive requirements lying outside law itself. However, adding substantive legitimacy as a requirement for legality opens an issue that a formal understanding of sources necessarily considers settled by the very fact of conferring power to specific subjects or authorities in a certain way: they are entitled to make substantive choices about what the law should be. Despite being apparently content-​neutral, the formal listing of sources in Article 38 is far from being politically neutral: indeed, by indicating whose words can have an international legal character and under which conditions, it implicitly identifies certain subjects (authorities) with the power to make law and, at the very same time, it limits such power. In other words, Article 38 is both inclusive and exclusive:  it tells whose words can count as international law under which conditions and, conversely, whose words do not count as law or under which circumstances the words of those entitled to make law do not acquire an international law character.   Antonio Cassese, International Law, 2nd edn (Oxford: Oxford University Press, 2005), p. 153.   Lassa Oppenheim, International Law, A Treatise, vol. 1, 3rd edn (London: Longmans, Green and Co., 1920), pp. 19–​20. 25

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552    sources and the legality of international law By doing so, a provision like Article 38 draws a fine boundary between what is and what is not ‘international law’, thus establishing a dichotomy between the ‘inner’ and the ‘outer’. This allows for a rudimentary conception of international law as a legal order: it is a legal order insofar as it regroups all the rules having the same international pedigree. To determine if and to what extent such an order is ordained or organized is another matter. However, Article 38 could only truly carry the effects of inclusivity and exclusivity, to shape the international legal order, if it were exhaustive. But doubts abound in that regard:  unilateral acts of States, unilateral acts of international organizations, and other more informal normative phenomena sometimes categorized as soft law seem to blur the thin line delimiting international legal normativity, or make it rather porous. It is submitted that the challenges posed by those normative phenomena to the delimitation of international law resulting from Article 38 do not have to be exaggerated. Indeed, and as already mentioned above, unilateral acts of States are grounded in a basic good faith requirement that is common to treaty law, while unilateral acts of international organizations are predicated upon the basic instrument (most often a treaty) establishing the organization and its powers. Furthermore, the various informal instruments regrouped within the soft law category may be influential in all sorts of ways on different levels of domestic or international governance despite lacking any formal legal pedigree,27 but they may nevertheless acquire an international normative character through obligations of conduct duly established under treaties or as a matter of customary law.28 Because obligations of conduct require to act with due diligence,29 and because assessing whether best efforts were made needs to be contextualized in time and space, soft law standards will be used as benchmarks for the application of such obligations,30

27   See Joost Pauwelyn, Ramses A. Wessel, and Jan Wouters, eds, Informal International Lawmaking (Oxford: Oxford University Press, 2012), pp. 549. 28  In the Pulp Mills case, the ICJ referred to the ‘Integrated Pollution Prevention and Control Reference Document on Best Available Techniques in the Pulp and Paper Industry’ (‘IPPC-​BAT’) issued by the European Commission to assess whether Uruguay complied with its due diligence obligation to prevent pollution and protect and preserve the aquatic environment of the River Uruguay, as provided under Article 41 (a) of the 1975 treaty on the Statute of the river. The Court noted that ‘the Parties referred to [the IPPC-​BAT] as the industry standard in this sector’. By carefully referring to a consent-​based use of the instrument issued by the European Commission, the Court avoided addressing whether, absent such consent, the same benchmark could be used to assess compliance with the due diligence obligation under the River Uruguay treaty. Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, 89, para. 224. 29   See ICJ, Pulp Mills case; see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, 221, para. 430. 30   The reason why a standard is taken into account, and why another instrument is not considered relevant, is an issue of fact and evidence, not of law: a standard is considered as relevant for assessing compliance with a due diligence obligation because it is factually evidenced as being what similar entities, acting in similar circumstances of time and space, usually comply with.

pierre d’argent   553 being therefore indirectly subsumed under a classical source of international law. Therefore, despite (or maybe because of) its brevity and obscurity, Article 38 remains rather vital for the delimitation of international law. That said, nothing prevents the same obligation to be simultaneously subsumed under any of the three main sources referred to by Article 38 of the ICJ Statute (treaty, custom, general principles). Such normative parallelism is well known and has attracted comments in international scholarship.31 One practical result of the multiple normative nature of an international obligation is to enlarge the scope ratione personae of the said obligation: a specific obligation may not exist for a State under treaty law because that State is not a party to the said treaty, but the very same obligation may nevertheless exist for that non-​party State as a matter of customary law. In such a case, referring to the treaty provision to describe the obligation of the third State is just a matter of convenience and expediency. Another practical result of the eventual multiple nature of international obligations is to overcome the hurdle resulting from the limited jurisdiction ratione materiae of the court or tribunal seized of a dispute, as in the Nicaragua case.32 Despite its practicalities and usefulness, the fact that the same international obligation may be found under various sources cannot fail to undermine the reliability of any doctrine of sources. Regardless of its continued relevance for the delimitation of international law, Article 38 is not so helpful when it comes to the identification of international obligations, since the formal sources it lists need to be cumulatively explored in order to have a correct legal appraisal of any factual situation and make no mistake as to the respective rights or obligations of the various subjects involved. Such outcome leads to the question whether Article 38 could be considered as a rule of recognition, in addition to the fact that its exhaustive character is also open to question. Furthermore, and as already recalled, there is no hierarchy between the formal sources listed under Article 38 and no correlation between the normative force of a rule and the formal source by which it is conveyed. In particular, customary international law is usually jus dispositivum and can be derogated from by treaty, but, as the ICJ found in the Belgium v Senegal case, some customary norms are jus cogens and of a peremptory nature.33 For that reason, and leaving aside the obligations 31  Tomer Broude and Yuval Shany, eds, Multi-​Sourced Equivalent Norms in International Law (Oxford: Hart, 2011), p. 333. 32   Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Jurisdiction and Admissibility) [1984] ICJ Rep 392, 424, para. 73. 33  ICJ, Questions relating to the Obligation to Prosecute or Extradite, p. 457, para. 99: ‘In the Court’s opinion, the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens).’ There is a vast literature concerning the nature of jus cogens obligations from a source perspective. Debates have been going on to determine whether jus cogens is of customary nature or of a different normative nature. However, it is not my intention to discuss that issue in this chapter. Paragraph 99 of the Belgium v Senegal judgment on the merits quoted above seems to settle it, at least from a judicial perspective. The customary nature of jus cogens affirmed by the Court does not

554    sources and the legality of international law benefiting from Article 103 of the UN Charter—​be they contained in the Charter itself or in biding Security Council resolutions adopted under the Charter34—​ any hierarchical articulation between the formal sources is impossible outside an appraisal of the norms they each contain. As a result, the classical distinction between formal and material sources is ultimately somehow rather artificial under international law, not only because an unratified treaty or a report by a body can serve as evidence of the existence of an accepted rule of international law,35 but also because the substantive obligation contained within any formal source will dictate its rank within the international legal order. And a substantive obligation cannot be explained outside a reference to the reasons why it exists as it exists, and to the interests protected thereunder.

IV.  The Multiple Legal Character of Sources In international law and scholarship, theories of sources are deeply marked by a dichotomy between domestic law and international law. This dichotomy is reflected in (and reflects) the dual legal personality of the State, which is a legal subject of its own legal order and, at the same time, a legal subject of international law. However, in contrast to the simultaneous multiple legal natures of the State, the underlying understanding is that any rule or source of law has either a domestic or an international legal character, but not both at the same time. Classically, sources do not have a multiple legal character and do not appertain to different legal orders. Indeed, in the positivist tradition which is still very much influential, domestic law is seen as the result of the unilateral will of each sovereign State, while international law stems from the convergence of sovereign wills. For that reason, legal rules are either rules of domestic law or rules of international law, and sources are either sources of domestic law or of international law. Also, the rules and sources of each domestic legal order are distinct from each other, while each domestic legal order contains exclude that some features typical of customary law, most notably the persistent objector principle, do not apply in case of peremptory customary law. Furthermore, it does not exclude that a specific opinio juris is required for customary rules to acquire a peremptory character.   See Robert Kolb, L’Article 103 de la Charte des Nations Unies, vol. 367, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2014), 9–​252. 35   See Ian Brownlie, Principles of Public International Law, 6th edn (Oxford: Oxford University Press, 2003), pp. 3–​4 (8th edn, James Crawford, ed., Principles of Public International Law (Oxford: Oxford University Press, 2012), p. 21). 34

pierre d’argent   555 rules allowing for the domestic effect of rules stemming from international law (under constitutional doctrines relating to the incorporation of treaties and other sources of international law) or from other domestic legal orders (under conflict of laws rules). By contrast, international law is entirely self-​centred and usually treats domestic law as if it were facts, rather than normative commands.36 Of course, domestic law may be relevant for applying international rules,37 but it is not given effect as law and its legal nature is not effective by itself within international law. The only exception to this form of legal disdain and disregard for domestic law is to be found in Article 46 of the Vienna Convention on the Law of Treaties (VCLT).38 In the exceptional circumstance envisaged under that provision, a domestic norm can legally overrule an international norm (treaty). However, under Article 46, the ‘provision of . . . internal law regarding competence to conclude treaties’ considered of fundamental importance will not be recognized and given effect as such in international law; rather, its manifest breach can be claimed to result in imperfect consent.39 Despite the dichotomy and separation between domestic law and international law, some additional points of contact exist between the two, from a normative point of view. Indeed, domestic law can sometimes be the ‘source of a source’ of international law: general principles of law within the meaning of Article 38 (1) (c) of the ICJ Statute are said to be part of international law under the opening sentence of the same provision because they are derived from a comparative law exercise. The similarity between domestic legal solutions is proof of converging State intent expressed unilaterally in the form of internal law. However, the general principle resulting from the convergence of domestic rules is law qua international law, not qua domestic law. Despite other understandings of ‘general principles of law’,40 their international legal character is not challenged. The emergence of international organizations and the development of their unilateral acts did not fundamentally alter the dichotomy between domestic law and international law. Unilateral acts of international organizations are indeed adopted according to the provisions existing for that purpose in the constitutive instrument of the organization, those provisions fulfilling the role of rules of recognition by 36   Certain German Interests in Polish Upper Silesia (Germany v Polish Republic) (Merits) PCIJ Rep Series A No. 7 (1926), p. 19. 37   The admissibility of a diplomatic protection claim depends on the protected individual being a national of the claimant State, which requires turning to its own laws; the ratione personae jurisdiction of an investment tribunal depends on the investor being a national of one of the parties to the bilateral investment treaty, etc. 38   Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331). 39   For a judicial (non-​)application of Art. 46 of the VCLT, see Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria:  Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303, 430, para. 265. 40   On this understanding of ‘general principles of law’ and other interpretations of Art. 38 (1) (c), see Hugh Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), p. 93.

556    sources and the legality of international law pointing at organs and procedures for such adoption. In turn, some unilateral acts may provide for the adoption of other subordinate acts. The constitutive instrument determines also the binding force of the acts adopted by the organization. In such a construction, the validity of each subordinate act is simply a matter of (substantial and procedural) conformity with the instrument under which it has been adopted. To that extent, validity understood as conformity creates a normative hierarchy between the constitutive instrument and the acts of the organization, and eventually also between the latter and acts derived from them. As far as legality is concerned, the legal character of the normative production of international organizations has quite easily been traced back, through a kind of normative chain such as the one at play when assessing its validity, to their constitutive instrument, sharing the international law character of the latter. The Kosovo advisory opinion epitomizes such a classical approach: the Court ruled that despite its clear internal content and purpose, the Constitutional Framework for Provisional Self-​Government, being a UN Mission in Kosovo (UNMIK) regulation adopted by the Special Representative of the Secretary-​General, ‘possesses an international legal character’ by some sort of transitivity, as it ‘derives its binding force from the binding character’ of UNSC Resolution 1244 (1999), itself adopted under the UN Charter—​undoubtedly an instrument of international law.41 However, this classical understanding has not prevented some international organizations from proclaiming that their constitutive instrument, together with the secondary legislation produced under it, forms a separate legal order said to be autonomous from the domestic legal orders of its various Member States (which seems undisputable even under the classical approach recalled above) and from international law, even if derived from and affiliated with the latter. The European Union (EU) legal order is the case at point.42 As is well known, the Court of Justice of the European Union (CJEU) ruled in its early case law that the ‘Community constitutes a new legal order of international law’,43 but that, at the same time, ‘the Treaty instituting the EEC has created its own order which was integrated with the national order of the member-​States the moment the Treaty came into force’, so that ‘the law stemming from the treaty, [is] an independent source of law’.44 The dual nature of EU law, both international and somehow domestic or internal, is generally admitted in practice, including in arbitral practice. For  ICJ, Kosovo Advisory Opinion, p. 440, para. 88.   In that same legal order, instruments that are indisputably international in character (treaties contracted by the EU) are considered as an integral part of the EU legal order (see CJEU, Haegeman v Belgium, 30 April 1973, Case 181/​73, EU:C:1974:41) and sharing its nature for the purpose of infringement procedures (CJEU, Commission v Ireland, Mox Plant case, 30 May 2006, Case C-​459/​03, EU:C:2006:345). 43  CJEU, Van Gend en Loos v Nederlandse Administratie der Belastingen, 5 February 1983, Case 26/​62, EU:C:1963:1. 44  CJEU, Flaminio Costa v ENEL, 15 July 1964, Case 6/​64, EU:C:1964:66. 41

42

pierre d’argent   557 instance, EU law was considered as international law under the compromis for the setting up of the Iron Rhine arbitration,45 while it is said to be part of State laws for the purpose of the Channel Tunnel arbitration.46 In some International Centre for Settlement of Investment Disputes (ICSID) arbitration, the issue of the dual nature of EU law was heavily debated.47 It is clear that, in light of the classical approach recalled above, this dual nature is puzzling as far as sources theories or rules of recognition are concerned: while even the least important EU Commission’s decision could be considered as an instrument of international law if one adheres to the normative chain conception outlined above, the very same decision is part and parcel of the EU legal order which defines the substantive and procedural conditions for its adoption by an institution which is, itself, governed and established by (international) treaties. If one looks at the issue from the point of view of the legal order from which the Commission’s decision derives its binding force, the answer is not different:  the decision is binding because the EU treaties themselves are binding on the EU Member States as a matter of international law, while it is also legally binding because it conforms (in other words, it is valid as a matter of EU law) with the conditions set out in the treaties and the regulations adopted under it, which together form a distinct legal order that ‘integrate[s]‌with the national order of the member-​States’.48 When a legal instrument can be considered as appertaining to different legal orders assumed to exist as such, and therefore as having different legal natures because it fulfils law-​ascertainment criteria in each of them, the choice between any of those legal natures is a matter of context, not of any purportedly decisive formal or substantive factor. In particular, it will depend on the jurisdiction ratione personae of the court seized of a dispute in which that instrument is at stake. As recalled above, EU secondary legislation can be considered as an instrument of international law because of the normative chain linking it to the EU treaties from which it derives its binding force. However, it is the EU (or, say, domestic) legal nature that will, for instance, be relevant in World Trade Organization (WTO) proceedings when 45   Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway, (Belgium v Netherlands) (2005) 27 RIAA 35, Exchanges of notes of 22–​23 July 2003 constituting the arbitral agreement,< https://​pcacases. com/​web/​view/​1>, accessed 16 October 2016; see also Pierre d’Argent, ‘De la fragmentation à la cohésion systémique: la sentence arbitrale du 24 mai 2005 relative au «Rhin de fer» (Ijzeren Rijn)’, in Olivier Corten and Pierre Klein, eds, Mélanges en hommage à Jean Salmon (Brussels: Bruylant, 2007), 1113–​37. 46   The Channel Tunnel Group Limited and France-​Manche S.A. v United Kingdom and France, Partial Award of 30 January 2007, (2007) 132 ILR 1, para. 147. 47   AES Summit Generation Ltd & AES-​Tisza Erömü FT v Hungary, ICSID case No. ARB/​07/​22, Award (23 September 2010) (von Wobeser, Rowley, Stern), para. 7.6.6; European American Investment Bank AG (Austria) v Slovak Republic, PCA case No. 2010-​17, Award on Jurisdiction (22 October 2012) (Greenwood, Petsche, Stern), paras 64, 73; Electrabel S.A. v Hungary, ICSID case No. ARB/​07/​ 19, Decision on Jurisdiction, Applicable Law and Liability (30 November 2012) (Veeder, Kaufmann-​ Kohler, Stern), Part IV, p. 11, para. 4.40, 4.417–​4.166. 48  CJEU, Flaminio Costa v ENEL.

558    sources and the legality of international law the EU itself or any of its Member States is a disputing party:  in such proceedings, EU secondary legislation is considered just as any domestic law of any other WTO member, the claimant member alleging that the impugned EU act breaches WTO law, i.e. constitutes in fact an internationally wrongful act.49 By contrast, in other international judicial settings, the international legal character of EU law will tend to prevail. This is notably the case at the European Court of Human Rights (ECtHR). In the Bosphorus case, the ECtHR considered that ‘the general interest pursued by the impugned measure was compliance with legal obligations flowing from the Irish State’s membership of the European Community’ and that such legitimate interest was of ‘considerable weight’. Making reference to Article 31 (3) (c) of the VCLT, the Court went on to recall that ‘the Convention has to be interpreted in the light of any relevant rules and principles of international law applicable in relations between the Contracting Parties . . . which principles include that of pacta sunt servanda’.50 This finding does not clearly state that EU law is to be considered as international law in Strasbourg’s proceedings: the Court only states that obeying EU law is a legitimate interest under the Convention insofar as such compliance is owed as a result of the fundamental rules of treaty law. This does not mean that EU law is ‘international law applicable in relations between the Contracting Parties’ within the meaning of Article 31 (3)  (c) VCLT;51 rather, it is pacta sunt servanda which is such. However, because it is pacta sunt servanda which, under the Convention, serves as the legitimate reason to carry out obligations under EU law, one may think that such obligations have themselves an international legal character. After all, the Court’s finding is just a circumlocution to say that EU law is binding as a matter of international law. It is submitted that, were the EU to finally adhere to the European Convention on Human Rights (ECHR) as required under Article 6 (2) of the TEU after the draft accession protocol is renegotiated and acceptable to the CJEU,52 the ECtHR would have to reconsider the nature of EU law and treat it in a similar way as in WTO proceedings. Be that as it may, the debate about the true legal nature of an instrument is very often presented in exclusive terms. Determining whether a legal instrument appertains to international law or to the EU legal order can even be hotly debated as a matter of politics. In the run up to the British referendum of 23 June 2016 in which the people of the United Kingdom were called to decide on the ‘Brexit’ issue, Prime 49   See Graham Cook, A Digest of WTO Jurisprudence on Public International Law Concepts and Principles (West Nyack: Cambridge University Press, 2015), p. 195, referring to WTO, European Union—​Anti-​Dumping Measures on Certain Footwear from China, Panel Report (22 February 2012) WT/​DS405/​R, paras 7.423 & 7.858. 50  ECtHR, Bosphorus v Ireland (appl. no.  45036/​98), Judgment (Grand Chamber), 30 June 2005, Reports 2005-​VI, para. 150. 51   And it could not be such because all the State parties to the ECHR are not EU Member States. 52   See CJEU, Opinion 2/​13 (Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms), 18 December 2014, EU:C:2014:2454.

pierre d’argent   559 Minister David Cameron managed to bargain some concessions from the other EU Member States. The agreement reached on that occasion was laid down in a ‘Decision of the Heads of State or Government, meeting within the European Council, concerning a new settlement for the United Kingdom within the European Union’. The ‘Decision’ was appended as Annex 1 to the Conclusions of the European Council Meeting of 18 and 19 February 2016.53 Soon after, Michael Gove, the Justice Secretary and an avowed partisan of Britain opting out of the EU, declared the deal to be deprived of any binding force; he added that the CJEU could overturn and quash it.54 From a trained lawyer’s perspective, this is not without some internal contradiction: if the Decision has no legal effect, it could not be the object of annulment proceedings in Luxembourg; however, if it can be quashed by the CJEU, then it must logically appertain to the EU legal order and be binding under it. Contradicting the Justice Secretary, Downing Street made clear that the Decision was binding as a matter of international law and that it would, as a consequence, be duly registered as such at the UN, pursuant to Article 102 of the Charter.55 Furthermore, because the Decision was a piece of international law and not of EU law—​the Heads of State or Government had met within the European Council, but acted as the Member States’ representatives, not as the European Council—​, it was not susceptible to annulment proceedings at the CJEU. The Prime Minister based himself on the concurring legal opinions delivered by the Legal Counsel of the European Council,56 and by Sir Alan.57 Interestingly, Sir Alan opined also that while the Decision was a binding agreement under international law concluded in simplified form, rather than an instrument of EU law, and that it could not, for that very reason, be annulled by the CJEU, the Court would nevertheless have exclusive jurisdiction under Article 344 of the TFEU to settle any dispute between the Member States in relation to it, since it ‘is a text concerning the interpretation and application of the EU Treaties’. Such an ontological debate about the legal nature of the Decision, in the sense of its exclusive inclusion in one or the other legal orders, hides an issue of subjects   EUCO 1/​16, 19 February 2016.   Rowena Mason, ‘Attorney general rejects Gove claim that EU deal is not legally binding’, The Guardian, 24 February 2016. 55   As noted by Sir Alan Dashwood: ‘There are precedents for the adoption of such Decisions at the level of the Heads of State or Government of the Member States meeting within the European Council, to resolve legal issues that have been raised by a Member State. Such an instrument was used in December 1992 to address Danish concerns regarding aspects of the Maastricht Treaty (‘the Decision on Denmark’); and, again in June 2009 to address certain concerns of Ireland regarding the Treaty of Lisbon (‘the Decision on Ireland’). Both of those Decisions were registered with the UN Secretariat as treaties in accordance with Article 102 of the UN Charter.’ Sir Alan Dashwood QC, ‘A “legally binding and irreversible” agreement on the reform of the EU’, Henderson Chambers, 19 February 2016, , accessed 16 October 2016. 56   EUCO 15/​16 LIMITE JUR 64, 8 February 2016, Opinion of the Legal Counsel. 57   Dashwood, ‘A “legally binding and irreversible” agreement’. 53

54

560    sources and the legality of international law and is all the more fascinating that, from a bird’s-​eye perspective, the EU legal order can be seen as an experiment to replace international law—​invented in Europe but which, ‘twice in [a]‌lifetime’,58 dramatically failed to keep its promises of peace on the Continent—​by EU law between the Member States.59 The replacement of international law by EU law in the relations between Member States results from the extension of the EU competences:  each time a subject-​matter comes within the competences of the EU, Member States are deprived of the right to create common rules outside the EU machinery. Consequently, a completely different way of doing politics and making law together emerged. Served by specific institutions, EU law is envisaged as a more integrated and more robust legal order, and, despite it stemming from international law through treaties, it nevertheless proclaims itself as autonomous, and somehow distinct, from international law.60 To put it in Freudian (or, maybe, biblical) terms, one could say that the entire EU enterprise is about the son (EU law) ‘killing’ the father (international law). However, it is quizzical to note that when the son is in danger of collapsing or evaporating, the father (international law in the form of the Decision of February 2016) is called upon to try to ‘save’ the son. However, in the light of the result of the referendum held on 23 June 2016, this attempt seems to have failed, which automatically resulted in the termination of the February Decision under its own terms.

Research Questions • How is the ‘international’ legal character of a norm determined? • What does the multiple legal character of sources tell us about legality and validity?

Selected Bibliography Argent, Pierre d’, ‘Le droit international: quand les sources cachent les sujets’, in Isabelle Hachez, Yves Cartuyvels, Hugues Dumont, and Philippe Géraud, eds, Les sources du droit

  UN Charter, Preamble, recital 1.   Pierre d’Argent, ‘Arrêt “Kadi”: le droit communautaire comme droit interne’, Journal de droit européen 153 (2008): 265–​8. 60  CJEU, Yassin Abdullah Kadi, Al Barakaat International Foundation v Council of the European Union, 3 September 2008, Cases C-​402/​05 P and C-​415/​05 P, EU:C:2008:461, para. 317. 58

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pierre d’argent   561 revisitées, vol. 4, Théorie des sources du droit (Bruxelles: Publications des Facultés universitaires Saint-​Louis, Anthémis, 2013), 243–​64. Aspremont, Jean d’, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). Besson, Samantha, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2010), 163–​85. Kelsen, Hans, ‘On the Basis of Legal Validity’, trans. Stanley L. Paulson, American Journal of Jurisprudence 26 (1981): 178–​89. Thirlway, Hugh, The Sources of International Law (Oxford: Oxford University Press, 2014).

Chapter 26

SOURCES AND THE LEGALITY AND VALIDITY OF INTERNATIONAL LAW NATURAL LAW AS SOURCE OF EXTRA-​P OSITIVE NORMS

Mary Ellen O’Connell and Caleb M. Day*

I. Introduction International law, like all categories of law, incorporates both positive and natural law. Positive law results from designated material acts, such as the making of

*  Editors’ note: this chapter was originally meant to constitute a pair with another chapter discussing sources in natural law theories, but only one was finally submitted. It nevertheless fits with the chapter of Pierre d’Argent that examines the relationship between sources and the validity of international law because together, these two chapters, whilst written from different perspectives, provide the reader with useful and innovative insights into the various ways in which the sources contribute to the validity (and validation) of international law and the limitations thereof.

mary ellen o’connell and caleb m. day    563 treaties or the practices leading to customary international law. Other essential aspects of law, however, are not reducible to positive acts.1 For those aspects, natural law explanations are needed. Within international law, natural law provides a method for explaining three significant aspects of the law: why law commands compliance; the concept of jus cogens or ‘peremptory norms’; and the general principles of law—​ the third primary source of international law as set out in Article 38 of the Statute of the International Court of Justice (ICJ). Legal principles of equality, fairness, good faith, necessity, and proportionality, for example, are all general principles explained within natural law theory. These aspects of the law exist regardless of State will or the consent of the governed.2 They are extra-​positive elements discerned through the exercise of reason, observation of nature, and openness to transcendence.3 Despite the essential role of natural law (NL), discussion of NL had nearly come to an end by the 1960s. The nineteenth-​century turn to science privileged material evidence. NL was critiqued as open to subjective conclusions that merely justify the status quo or a judge or theorist’s personal interests, owing to the lack of material evidence or objective proof for NL claims.4 We argue, however, that subjectivity can be limited through a synthetic approach combining the three elements referenced above: reason, nature, and transcendence. We begin by demonstrating the importance of the elements historically, tracing their emergence, use, and contestation through history. We also show that the strongest NL theories have involved a synthesis of the three elements. We then articulate how this synthetic approach can work in today’s pluralist international community. NL is essential to a complete understanding of law, since positivism alone fails to answer fundamental questions as to what counts as law and why we have a duty to obey the law. ‘Legal positivism does not aspire to answer these questions . . . ’ .5 Natural law does, but succeeds only when employed integrally.

1   David Lefkowitz expresses the contrasting positivist view: law’s existence is ‘solely a matter of its social source without regard for its merit’; see ­chapter 15 by David Lefkowitz in this volume. 2   Legal positivists also seek to avoid narrow reliance on State will, suggesting ‘social source’ is broader than will or consent. In our view, to genuinely go beyond will or consent implicates natural law thinking. See c­ hapter 15 by David Lefkowitz in this volume; Richard Collins, ‘Classical legal positivism in international law revisited’, in Jörg Kammerhofer and Jean d’Aspremont, eds, International Legal Positivism in a Post-Modern World (Cambridge: Cambridge University Press, 2014), 23–​49, 24, 26–​8, 36–​44; Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–​ 85, 165–​6; Jean d’Aspremont and Jörg Kammerhofer, ‘Introduction: The Future of International Legal Positivism’, in Kammerhofer and d’Aspremont, eds, International Legal Positivism in a Post-​Modern World (Cambridge: Cambridge University Press, 2014), 1–​22, 4–​6, 13–​16. 3   ‘Transcendence’ refers to ‘[e]‌xistence or experience beyond the normal or physical level’. Oxford Dictionaries, , accessed 21 June 2016. 4   Collins, ‘Classical Legal Positivism’, pp. 25, n. 25, 32–​3, n. 33. See also respecting international law, Prosper Weil, ‘Towards Relative Normativity?’, American Journal of International Law 77 (1983): 413–​42. 5   Leslie Green, ‘Legal Positivism’, in Edward N. Zalta, ed., The Stanford Encyclopedia of Philosophy (Fall 2009 Edition), , accessed

564    sources and the legality of international law

II.  Discerning Three Elements in Ancient Thought ‘Glimmers of international law’ are detectible in some of our oldest historical records.6 Systems of obligation emerged in association with all recorded interstate systems. These systems reflected three sources of sanctions against norm violation: ‘divine sanction’, promising punishment from the gods; ‘social sanction’, enforced through positive customs and institutions; and ‘intellectual sanction’, involving rational argumentation about laws and rights.7 These sanctions together enforced substantive norms across diverse cultures.8 Religion, custom, and reason ‘fused’ in a ‘common effort’ to ‘create order . . . out of chaos, an effort which extended from mythopoeic cosmology to the ordering of the state’.9 The divine presence assured that the norms were superior to even powerful States and rulers, enabling belief in an inherent just order without suggesting specific rulers were inherently just. More detailed collections of principles governing interstate relations appeared in some regions, such as China during the Warring States era before 221 bce.10 However, a ‘systematic body of principles covering all aspects of international relations’ only became possible with the development of NL theories.11 NL was not applied comprehensively to interstate relations until later, as will be discussed below. Nonetheless, NL theories extended three concepts central to ancient international law. The first was appeal to reason as a common denominator grounding laws across cultures. The second was the notion of an ordered natural universe grounding normative interstate law.12 The third was transcendence placing law above earthly authorities, even when specific theological understandings of that transcendence differed among groups. 26 July 2016, cited in John Finnis, ‘What is the Philosophy of Law?’, American Journal of Jurisprudence 59 (2014): 133–​42, 138, n. 12. 6  Stephen Neff, Justice Among Nations:  A  History of International Law (Cambridge:  Harvard University Press, 2014), p. 7. 7   David Bederman, International Law in Antiquity (Cambridge: Cambridge University Press, 2001), pp. 48–​87. 8 9  ibid., p. 53.   ibid., pp. 85–​6; in the last statement, quoting David Lorton. 10 11  Neff, Justice, pp. 7, 17–​25.   ibid., pp. 7–​8. 12   Followers of David Hume (1711–​1776) have objected to grounding norms in natural facts, calling it ‘the naturalistic fallacy’ to confuse normative ‘ought’ statements with factual ‘is’ statements. Lefkowitz in this volume discusses this fact-​value distinction, which is central to Hans Kelsen’s positivism. However, natural law thinkers argue that normative evaluation is implied by factual description when descriptions are teleological, as discussed in section III: Developing the Three Elements in the Middle Ages. Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 2nd edn (Notre Dame: University of Notre Dame Press, 1984), pp. 56–​9; Philippa Foot, Natural Goodness (Oxford: Clarendon Press, 2001), pp. 2–​9; Jean Porter, Nature as Reason: A Thomistic Theory of the Natural Law (Grand Rapids: Wm. B. Eerdmans Publishing Co., 2004), pp. 123–​5.

mary ellen o’connell and caleb m. day    565 NL built on ancient Greek philosophies. Plato contrasted nature (physis) with positive laws and conventions (nomos), and employed a transcendent sense of ‘nature’ to reject claims that the current order necessarily reflects ‘natural justice’.13 Aristotle distinguished ‘legal justice’ from ‘natural justice’, and written ‘special law’ from unwritten, universal ‘general law’.14 The Stoics sought to live ‘consistently with nature’.15 They saw the natural universe as a single organism or city-​State, governed by a universal law. The Stoics associated this universal natural law with God, with fate, with a universal reason ordering nature, and with humans’ own ability to reason, which they considered quasi-​divine.16 Linking the principles governing the universe to a capacity available to all humans supported a ‘radically cosmopolitan, universalist’ vision of law.17 These concepts crystallized into an NL theory popularized by Roman philosopher, jurist, and politician Cicero (106–​43 bce), Hellenistic Jewish philosopher Philo of Alexandria (c. 25 BCE–​c. 50 ce), and other figures from diverse religious and philosophical perspectives. This shared theory was a synthesis of Stoic natural law with elements of Aristotelian and Platonic thought, forged during a period of eclecticism among the philosophical schools in the first and second centuries bce.18 These eclectics introduced transcendence into Stoic NL. The Stoics had seen divine reason as immanent in the natural world and inherent to the existing social-​political order. This subsumed human reason and NL into a deterministic material system, leaving little room for higher norms or free will.19 The new synthesis adopted the Platonic sense that NL and its divine lawgiver are transcendent to nature, even while ordering it. This affirmation of transcendence could accommodate diverse theological views: Greeks, Romans, Jews, and Christians associated transcendence variously with Zeus, Jupiter, or YHWH.20 Transcendence enabled freedom from deterministic fate, and a standpoint from which to measure and critique ‘social custom and political practice’.21 Transcendence functions like the divine sanction in ancient international law: affirming an inherent justice ordering nature that nonetheless stands above the existing order of nature, enabling radical critique of it. Exponents of this synthesis therefore did not suggest, as Aristotle had, that prevailing social conventions and norms spring directly from human nature.22 They believed human nature determines positive law only indirectly, via rational 13   Stephen Pope, ‘Reason and Natural Law’, in Gilbert Meilaender and William Werpehowski, eds, The Oxford Handbook of Theological Ethics (Oxford: Oxford University Press, 2005), 148–​67, 149–​50. 14  Neff, Justice, p. 40. 15   ibid., pp. 42–​52; Malcolm Schofield, ‘Stoic Ethics’, in Brad Inwood, ed., The Cambridge Companion to the Stoics (Cambridge: Cambridge University Press, 2006), 233–​56. 16   Richard Horsley, ‘The Law of Nature in Philo and Cicero’, The Harvard Theological Review 71 (1978): 35–​59, 54–​7. 17 18  Neff, Justice, pp. 59–​60.   Horsley, ‘The Law of Nature’, pp. 42–​50. 19 20 21   ibid., pp. 57–​8.   ibid., pp. 51–​7.  ibid., p. 58. 22  Porter, Nature, pp.  18-​21; Elizabeth Asmis, ‘Cicero on Natural Law and the Laws of the State’, Classical Antiquity 27 (2008): 1–​33.

566    sources and the legality of international law reflection and social negotiation. This means NL is both a legitimation of positive law and a moral check on it. Human laws are not NL, but they must agree with it. Unjust laws, which contradict NL, were not considered true laws. Cicero saw NL as closely connected to the ius gentium, laws Romans identified as common to peoples or nations.23 Cicero believed law winning wide agreement from all nations must surely arise from discerning the right reason of nature. However, he also believed that Rome’s constitution was more consistent with NL than any other.24 This illustrates an unavoidable feature of NL reflection: while NL is universal in applicability and scope, its interpreters are specific human beings, both guided and limited by their specific perspectives. In sum, this ancient NL synthesis combined three interrelated elements, which could guide and limit law rather than directly produce specific rules. First, NL is integrally connected to human reason, which enables normative and legal reflection among human beings from disparate cultures. Secondly, NL incorporates rational reflection on nature, both human nature and an ordered natural universe. Thirdly, NL depends on transcendence, understood differently according to particular natural law thinkers’ theological or philosophical views, but securing legal norms as superior to positive actions and authorities. These three strands extend, develop, or deepen features of ancient international law. We argue that all three are still essential to coherent NL thinking.

III.  Developing the Three Elements in the Middle Ages The NL tradition and its three-​part synthesis continued to develop throughout the medieval and modern eras. Most of this development was undertaken by Christians in Western Europe, though they had no monopoly on NL.25 For example, Islamic law scholar Anver Emon suggests both main schools of Muslim jurists from the ninth to the fourteenth centuries ce employed NL thinking, by treating rational reflection on the natural world as a source of law, alongside the Qur’an and hadith.26 Nonetheless, the explicit medieval NL tradition was primarily Christian and European. By the twelfth to thirteenth centuries, the Holy Roman Empire, the papacy, and NL were three ‘forces of unity’ in Western Europe.27 Scholastic theologians and canon lawyers, most notably Thomas Aquinas, produced the richest NL thought.28 Like the 24 25  Neff, Justice, pp. 45–​8.   Asmis, ‘Cicero’, pp. 22–​7, 31.  Neff, Justice, p. 59.   Anver Emon, ‘Islamic Natural Law Theories’, in Anver Emon, Matthew Levering, and David Novak, Natural Law: A Jewish, Christian, and Muslim Trialogue (Oxford: Oxford University Press, 2014), 144–​86. 27 28  Neff, Justice, pp. 52–​3.  ibid., p. 61. 23

26

mary ellen o’connell and caleb m. day    567 ancient synthesis, the medieval scholastics embraced an approach that fused transcendence, reason, and nature as sources of guidance and authority. They drew on Greco-​Roman sources, chiefly Cicero, Aristotle, and Roman jurists whose work had been preserved. They also followed earlier Jewish and Christian theorists in discerning NL thinking in the Bible, and in introducing biblical concepts into the NL synthesis.29 Aquinas and the scholastics developed the central features of the ancient synthesis. They saw moral and legal authority as grounded in human nature and an ordered, intelligible natural world.30 They also inherited Aristotle’s understanding of humans as naturally sociable, and States as natural and naturally independent.31 Being enshrined in human nature, the scholastics believed NL is universally accessible to, and binding upon, all human beings.32 However, NL does not spring directly from human nature as a ‘biological instinct’, but is accessed through reason.33 The scholastics’ primary definition of NL was the human capacity for practical reason, universal to all humans, but refined by education, experience, and intelligence.34 Practical reason discerns moral and legal norms through rational reflection on our nature as social animals.35 Though they emphasized reason, the medieval scholastics did not attempt to establish an entirely ‘self-​evident’ NL system based on reason alone.36 They continued the tradition’s emphasis on the transcendence of NL and its lawgiver, and identified this lawgiver with God, who created nature and inscribed it with rational principles. They saw nature, reason, and divine revelation as inextricably intertwined, mutually interpreting, and expressing the same divine ordering wisdom. Christian Scripture and theology, combined with reason and nature, influenced medieval NL reflection. For example, the principle of universal human equality emerged when Christian theology built on the teachings of some Stoics that human beings are naturally equal as possessors of divine reason.37 Cicero had called this human capacity a ‘divine image’, and the scholastics, noting a similar phrase in the Hebrew Bible (Genesis 1:27), developed this understanding to argue that ‘rational freedom and self-​direction’ must be safeguarded and revered in each person.38 Their conclusion, involving reason, nature, and transcendence, allowed sixteenth-​century NL thinkers to invoke equality   Horsley, ‘The Law of Nature’, pp. 36, 58–​9; Porter, Nature, pp. 7–​17. 31   Horsley, ‘The Law of Nature’, pp. 48–​9.  Neff, Justice, pp. 62, 74, 78. 32   Thomas Aquinas, Summa Theologica (New York: Benziger Bros, 1947), translated by Fathers of the English Dominican Province, Internet Sacred Texts Archive, I-​II, Q. 94, Arts 4, 6,, accessed 29 December 2015. 33 34 35  Neff, Justice, pp. 61–​2.  Porter, Nature, pp. 13–​16.   ibid., pp. 14–​16, 262–​5. 36   ibid., pp. 16–​17; Pope, ‘Reason’, pp. 148–​50. 37  Aquinas, Summa Theologica, I-​II, Q.  104, Art 5.  For varying perspectives on the Stoics and Christians on equality, see South-​West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Judgment, Second Phase) [1966] ICJ Rep 6, 304–​5 (Dissenting Opinion of Judge Tanaka); Porter, Nature, pp. 352–​3; Brent Shaw, ‘The Divine Economy: Stoicism as Ideology’, Latomus 44 (1985): 16–​54; Julia Annas, Intelligent Virtue (Oxford: Oxford University Press, 2011), pp. 58–​64. 38   Horsley, ‘The Law of Nature’, pp. 54–​7; Porter, Nature, pp. 342–​59, 368. 29

30

568    sources and the legality of international law as natural, against attempts to justify inequality, colonial subjugation, and slavery using Aristotle’s alternative reading of nature and reason.39 The scholastics’ use of transcendence assumed a Christian, or at least monotheistic, religious consensus with limited pertinence today. Nonetheless, transcendence functioned similarly for the scholastics as for the ancients: it provided a pre-​social norm for law, highlighting the contingency of human-​made laws, structures, and inequalities.40 Scholastic NL also incorporated reflection on nature, especially Aristotle’s teleological conception of human nature.41 Aristotle saw living beings as intrinsically ordered towards a certain end (telos), as a clock is ordered towards keeping time.42 This enables an internal, fact-​based mode of evaluation: things, including humans, can be evaluated by how well they serve the inherent function of the sort of thing they are. The human function or telos, according to Aristotle and Aquinas, is eudaimonia, a holistic happiness and goodness that combines ‘being well and doing well’.43 Following Cicero, the scholastics believed communal NL reflection on the human telos in the light of particular situations can generate specific laws and ensure they support the human good.44 Aquinas suggested NL reflection informs specific judgements in particular situations, and that legitimate positive law is consistent with NL and with the common human good.45 Again following Cicero, Aquinas linked NL closely to the ius gentium, which he saw as conclusions derived from NL.46

IV.  Internationalizing and Renegotiating the Three Elements in Modernity Of the three factors uniting much of medieval Western Europe—​empire, papacy, and natural law—​two were transformed through the Reformation and the Thirty Years’ War. However, NL, seemingly ‘a wispy, philosophical sort of thing’, actually  Neff, Justice, pp. 117–​125. It also allowed ICJ Judge Tanaka to argue that South African apartheid breached the inherent principle of equality before the law, as discussed below. 40 41  Porter, Nature, pp. 21–​3.   ibid., pp. 18–​19, 49–​50. 42  MacIntyre, After Virtue, pp. 56–​9, 147–​64. 43   Aquinas believed happiness is only perfected in unity with God in the after-​life, but may be partially realized through virtuous living in this life. ibid., p. 148; Thomas Aquinas, ST, I-​II, Qs., pp. 55–​67, 71-​81; Porter, Nature, pp. 155–​203. 44  Porter, Nature, pp. 49–​50. 45  Aquinas Summa Theologica I-​II, Q. 90, Art. 4; Pope, ‘Reason’, p. 151. 46  Neff, Justice, pp. 63–​7. 39

mary ellen o’connell and caleb m. day    569 grew in European thought.47 The concept of the ius gentium also evolved in this period, and together NL and the ius gentium gave rise to modern international law. As States replaced Christendom, thinkers increasingly applied NL, the ius gentium, or both to relations between nation States. The Spanish scholastic Francisco Suárez (1548–​1617) and the Dutch jurist Hugo Grotius (1583–​1645) were critical to this process.48 The ‘Grotian’ school held that NL is binding on the international community, but is insufficient to regulate all interstate relations.49 To supplement NL, the Grotians turned to the ius gentium, which they developed into a more comprehensive, independent, and international body of law.50 Unlike Cicero and Aquinas, Suárez and Grotius applied the ius gentium directly to interstate relations.51 The Grotians saw the ius gentium as a positive or ‘voluntary law of nations.’ However, they did not completely sever it from NL. They followed Aquinas in holding that the ius gentium must be broadly guided by NL and not contradict it, and that NL may ‘underdetermine’ specific judgments, allowing ‘freedom to operate’ in certain areas.52 They looked to the ius gentium in these areas. This newly independent and international ius gentium developed into the first ‘detailed body of specific rules’ of international law53—​rules that were still based upon the authority and normative limits of NL. A rival school, the ‘naturalists’, also developed detailed international law concepts, but sought to derive them more directly from NL. This school originated with English philosopher Thomas Hobbes (1588–​1679), but its most characteristic and influential exponent was German jurist and philosopher Samuel von Pufendorf (1632–​1694).54 The naturalists rejected the Grotians’ extension of the ius gentium into the interstate realm, seeing NL as sufficient. Pufendorf believed looking to NL led to a detailed body of international laws. He saw NL as a ‘solid science’ alongside the incipient natural sciences, suggesting NL’s conclusions are derived ‘from distinct principles’ so clearly that ‘no further ground is left for doubt’.55 Pufendorf and his followers saw NL as a universal body of specific rules, rather than as a universal human capacity whose specifics must be worked out in particular situations.   ibid., pp. 52–​3, 139–​41.   See also ­chapter 3 by Dominique Gaurier and c­ hapter 4 by Randall Lesaffer in this volume. 49 50  Neff, Justice, pp. 146–​7.   ibid., pp. 153–​66. 51   In this, Suárez and Grotius were preceded by Hermogenian and Isidore of Seville, who distinguished NL from the ius gentium in part by suggesting the latter governs States rather than individuals. Neff, Justice, pp. 46–​8, 63–​7. See also ­chapter 1 by Peter Haggenmacher in this volume on ius gentium in the medieval and modern scholastics. 52 53  Porter, Nature, p. 19; Neff, Justice, pp. 156–​7.  Neff, Justice, pp. 141. 54   ibid., pp. 173–​8. 55   Pufendorf, quoted in Porter, Nature, pp. 27–​8. See also Martti Koskenniemi, ‘Transformations of Natural Law, Germany 1648–​1815’, in Anne Orford and Florian Hoffmann, eds, The Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press, 2016), 59–​81, 79–​81, for an in-​depth discussion of this period in Germany, particularly the introduction of terminological and intellectual confusion over the term ‘natural’ in natural law. 47

48

570    sources and the legality of international law Subsequent thinkers developed detailed codes of international law, which related to NL in various ways. Stephen Neff places their views on a spectrum from exclusive emphasis on NL in governing international relations to exclusive emphasis on the ius gentium.56 ‘Grotians’ were distributed across the spectrum, except at the points of exclusivity at either end, as they affirmed both NL and the positive ius gentium. Naturalists occupied the extreme NL end of the spectrum, denying any role for the ius gentium. The extreme positivist end was largely empty until the nineteenth century. Across the spectrum, NL thinkers provided far more detail than their predecessors had about specific international laws. Early modern NL thinkers were also united in renegotiating the classic NL synthesis, essentially reducing its three elements to two.57 They were Christians who saw divine revelation as a source of moral norms. However, they saw transcendence as independent of reason and nature, in contrast to the medieval sense that reason, nature, and revelation were inextricably connected and mutually interpreting.58 Grotius demonstrated this new perspective by strongly affirming God’s authority and goodness just after suggesting law ‘would have force even if God did not exist’.59 This change took place as Europe was experiencing war and political upheaval, and undertaking conquest and colonization abroad, which brought unprecedented awareness of theological and moral pluralism.60 To craft a universally acceptable grounding for the new legal system of modern States, NL thinkers eschewed particular theological transcendence, looking to the more universal sources the burgeoning natural sciences also used: reason and nature. Some NL theorists see this shift as NL maturing, shedding its contestable theological idiosyncrasies to become what it had always promised to be: a truly ‘independent and rationalist system’.61 Jean Porter acknowledges that removing particular religious understandings of transcendence from NL was a rational response to the new, more pluralist ‘social and intellectual situation’.62 However, she notes that the NL tradition they inherited and secularized was importantly shaped by its history, linked to faith.63 Modern NL retained many concepts developed through this history, such as equality, but some specific medieval NL

 Neff, Justice, pp. 180–​2.   See ­chapter 3 by Dominique Gaurier in this volume, section V. 58 59  Porter, Nature, pp. 26–​7.  ibid. 60   Pluralism already existed between the Abrahamic religions in Europe, the Middle East, and North Africa, and between Christian and ‘barbarian’ Europeans. However, in sub-​Saharan Africa and the Americas, Europeans encountered more dramatic differences, relatively quickly. ibid., pp. 28–​32, n. 31. 61   Ernest Barker, quoted in Porter, Nature, pp. 28–​30; d’Aspremont and Kammerhofer, ‘Introduction’, pp. 12–​13. 62  Porter, Nature, p. 30. 63   Jean Porter, ‘A Tradition of Civility: The Natural Law as a Tradition of Moral Inquiry’, Scottish Journal of Theology 56 (2003): 27–​9, 37–​45. 56 57

mary ellen o’connell and caleb m. day    571 judgments could no longer be justified, as they depended on particular circumstances or theological claims.64 Moreover, removing transcendence did not successfully remove the challenge posed by pluralism.65 Western Europe and its colonies developed plural approaches to the elements of reason and nature, too. Evolutionary science and David Hume’s (1711–​1776) resistance to natural normativity threatened central NL concepts, such as the idea of nature and human nature as morally purposeful.66 Contemporary NL theorists argue that science actually enhances NL reflection, and that evolutionary biology supports NL’s teleological philosophy.67 Nonetheless, these debates highlight the significant modern pluralism in all three NL elements. Perhaps unsurprisingly, some lost confidence in NL altogether.68 After Grotius, scholarship on the normativity of international law increasingly narrowed towards exclusively positivist theories. The Swiss jurist Emer de Vattel (1714–​1767) acknowledged NL reflection, but believed it took place within the individual consciences of sovereigns. This dealt a blow to the concept that the law is superior to political communities or sovereigns. After Vattel, law was increasingly seen as simply what sovereigns willed, and international law as no more than the consensus of State will, unrelated to any higher source.69 Lassa Oppenheim (1858–​1919), a German legal scholar, was hugely influential with his view that international law is a positive system of law only, not superior to State will in ultimate questions. Into the early twentieth century, international law scholars, especially in Catholic-​ majority societies, such as Argentina, Austria, Brazil, Ireland, Italy, Portugal, and Spain, continued to acknowledge a role for NL. Yet, Oppenheim objected that NL ‘practitioners could not agree among themselves on the most basic questions about international law, let alone convince others’.70 NL indeed became less convincing, whether through disagreement, increasing interest in scientific method, or the decline of religion in intellectual life. By the 1930s, legal theorists in the US, the UK, and Germany were dismissing the possibility of any law superior to the positive acts of States.

64   Porter criticizes some modern natural lawyers for spuriously arguing for specific Christian beliefs using ‘supposedly universally valid rational arguments.’ ibid., pp. 43–​5. 65 66  Porter, Nature, pp. 28–​30.   Pope, ‘Reason’, pp. 153–​4, 159–​60. 67  Porter, Nature, n. 68, pp. 82–​125; Pope, ‘Reason’, pp. 159–​64; Alasdair MacIntyre, Dependent Rational Animals: Why Human Beings Need the Virtues (Chicago: Open Court, 1999). 68   See also ­chapter 3 by Dominique Gaurier and c­ hapter 4 by Randall Lesaffer in this volume. 69   Joachim von Elbe, ‘The Evolution of the Concept of the Just War in International Law’, American Journal of International Law 33 (1939): 665–​88, 682–​3. 70   Benedict Kingsbury, ‘Legal Positivism as Normative Politics:  International Society, Balance of Power and Lassa Oppenheim’s Positive International Law’, European Journal of International Law 13 (2002): 401–​37, 432.

572    sources and the legality of international law

V.  The Re-​Emergence of the Three Elements in Contemporary International Law The catastrophe of World War II drew some back to NL, including German scholars Gustav Radbruch and Theodor Adorno. They made the case that positive law, shorn of any connection to NL, had played a significant role in persuading large populations of the legality of Fascist policies. Hitler was elected ostensibly in compliance with the German constitution and was, therefore, the legitimate leader who could command obedience. The courts enforced the laws adopted by parliament. After the war, in the famous trial of the judges, a standard defence was that a judge’s job is to enforce the law developed following legally instituted procedures. Judging morality is not the job of a positive law court. Prosecuting German and Japanese leaders required confronting this defence. According to David Luban and co-​authors, Article 8 of the Nuremberg Charter relies on NL in restricting the defence of acting ‘pursuant to an order of his government or a superior’.71 Thus, NL ‘form[s]‌the most obvious justification for criminalizing “murder, extermination, enslavement, deportation, and other inhumane acts” . . . whether or not in violation of domestic law’.72 In 1946, Sir Hersch Lauterpacht also re-​presented law as a hybrid system of positive and natural law.73 Lauterpacht understood that all law consists of both forms, but argued that while this fact could be merely assumed with national legal systems, it had to be openly acknowledged in the case of international law. International law has a unique role in regulating relations in a system of diverse nations and cultures lacking regular governmental institutions of courts, legislature, and executive. At the international level, ‘the function of natural law, whatever may be its form, must approximate more closely to that of a direct source of law’.74 Lauterpacht did not provide an explanation of what exactly NL is, or how it can approximate a direct source of law. He did point to certain ‘features’ of NL that he considered essential to international law, including the comprehension of law as superior to ‘the totality of international relations’. He credited Grotius with endowing international law with ‘unprecedented dignity and authority by making it part not only of a general system of jurisprudence but also of a universal moral code’.75 71  David Luban, Alan Strudler, and David Wasserman, ‘Moral Responsibility in the Age of Bureaucracy’, Michigan Law Review 90 (1992): 2348–​92, 2352. 72  ibid. 73   Hersch Lauterpacht, ‘The Grotian Tradition in International Law’, British Yearbook of International Law 23 (1946): 1–​53, 22–​3. 74  ibid., pp. 22–​ 3.   75 ibid., p. 51.

mary ellen o’connell and caleb m. day    573 The United Nations’ Universal Declaration of Human Rights (UDHR) adopted in 1948—​another product of the war—​relied significantly on a core NL concept. French Catholic philosopher Jacques Maritain was instrumental in the UDHR’s drafting committee, which reached broad agreement on the content of universal rights, despite a lack of consensus on their philosophical basis.76 Maritain sought an extra-​ positive justification that could win widespread adherence, and found inspiration in the NL tradition, especially the notion of inherent human dignity.77 The concept of dignity could justify a robust list of human rights, while also, crucially, winning support from people with differing religious and philosophical perspectives. Human dignity would soon become a core international law concept. At Yale Law School, by the 1960s, Myres McDougal, Harold Lasswell, and their collaborators built an entire ‘school’ of international law around the concept. The New Haven School was not a forthright proponent of NL, but in addition to the centrality of human dignity, New Haven relied on the new behavioural sciences in a manner that could be described as a return to nature as a strand in legal understanding. Based on observations of human beings in society, the New Haven School taught that just laws promote eight goals: ‘security, wealth, respect, well-​being, skills, enlightenment, rectitude, and affection’.78 New Haven attracted prominent adherents but went into decline with the emergence in the late 1960s of a renewed theory of positive law. New Haven was criticized for failing to sufficiently respect positive law and for lacking objectivity. McDougal, for example, was a strong defender of the US war in Vietnam as a war fought to advance human dignity by promoting democracy and opposing communism. Oxford’s H. L. A. Hart helped put an end to much of the post-​war interest in NL.79 Hart’s now-​classic 1961 book, The Concept of Law, remains the standard explanation of law in Anglo-​American jurisprudence. It is adamantly positivist, and also rather sceptical about international law. Louis Henkin followed the same basic 76   Jacques Maritain, Man and the State (Chicago: The University of Chicago Press, 1951), pp. 76–​107 and Andrew Woodcock, ‘Jacques Maritain, Natural Law and the Universal Declaration of Human Rights’, Journal of the History of International Law 8 (2006): 245–​66, 260, 264–​6. Universal Declaration of Human Rights, UNGA Res 217A (III) (10 December 1948). 77   Woodcock, ‘Maritain’, pp. 248, 260, 262–​6. While Samuel Moyn rightly points out the modern developments contributing to the twentieth-​century articulation of human rights, Porter notes that a clear conception of natural or human rights was in place in the late medieval natural law tradition. Maritain discerned such a conception in Aquinas himself. Samuel Moyn, Christian Human Rights (Philadelphia: University of Pennsylvania Press, 2015), pp. 65–​100; Porter, Nature, pp. 342–​78. 78  Richard Steinberg and Jonathan Zasloff, ‘Power and International Law’, American Journal of International Law 100 (2006): 64–​87, 77. 79   There are indications that Hart was not the ardent positivist that, say, Oppenheim was. See his debate with Lon Fuller. Fuller argued that German legal scholars had been so committed to positivism for seventy-​five years that they failed to be concerned with the ‘inner morality of law’. Hart conceded that positive law could be so immoral as to require disobedience to higher law. H. L. A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71 (1958): 593–​629; Lon Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, Harvard Law Review 71 (1958): 630–​72.

574    sources and the legality of international law approach in his influential 1968 book on international legal theory, How Nations Behave.80 Henkin’s education and early experience focused principally on US law, especially the Constitution. He came to international law and human rights following the experience of four years in combat during World War II. He was a devout Jew, but strove to keep religious views out of his theoretical understanding of law. He was part of a generation that saw the way forward in a diverse world through the separation of church and State, belief and law. Positivism seemed to fit these requirements well. Australian legal scholar John Finnis of Oxford and Notre Dame, despite being a student of Hart’s, sought to preserve NL in legal theory. In his 1979 book Natural Law and Natural Rights, Finnis suggests NL derives not from natural facts or religious beliefs but from self-​evident ‘pre-​moral principles of practical reasonableness’.81 Practical knowledge is gained by examining agents’ reasons for acting. Such examination reveals that human beings pursue certain ‘basic values’ or goods.82 These goods rationally motivate characteristically humane, purposeful action. For Finnis, the goods include knowledge, procreation, beauty, excellence, peace, and connection to God or ‘some more-​than-​human source of meaning and value’.83 In an innovation, Finnis and the small group of ‘new natural law’ theorists accept Hume’s distinction between fact and value, deriving moral value only from other normative claims.84 They do not draw moral guidance from human nature, but from what they take to be self-​evident rational principles.85 This ‘natural law without nature’ approach leaves Finnis, like MacDougal and Lasswell, apparently unrestricted in reaching subjective conclusions about the goals law should support.86 The new natural lawyers also generally focus on national law, and some members are harshly critical of international law.87 This is curious, given the history of NL and international law, the unique capacity of NL to enable disparate cultures to reason about common normative and legal principles, and the new natural law theorists’ ostensible focus on universal reason. Yet, their exclusively rationalistic method,   Louis Henkin, How Nations Behave: Law and Foreign Policy (New York: Frederick A. Praeger, 1968).   John Finnis, Natural Law and Natural Rights, 2nd edn (Oxford: Oxford University Press, 2011), pp. 33–​4. 82   ibid., pp. 59–​99. 83   Germain Grisez, Joseph Boyle, and John Finnis, ‘Practical Principles, Moral Truth, and Ultimate Ends’, American Journal of Jurisprudence 32 (1987): 99–​151, 106–​8. 84 85  Finnis, Natural Law, pp. 33–​42.  Porter, Nature, pp. 37–​40, 127–​31. 86   Pope, ‘Reason’, pp. 155–​6. Beckett suggests that Finnis’ fixed list of goods is less open to manipulation than the vision of natural law offered by, for example, John Tasioulas, who for Beckett has moved ‘from a true (classical) natural law position to one reliant on a common consensus of evolving values . . . ’ . Jason Beckett, ‘Behind Relative Normativity: Rules and Process as Prerequisites of Law’, European Journal of International Law 12 (2001): 627–​50, 648. 87   Natural Law and Natural Rights does contain a chapter on customary international law. Not unlike Hart, Finnis finds the possibility of international law plausible. More recently, other ‘new natural law’ thinkers, especially Robert George, have been far more critical. 80 81

mary ellen o’connell and caleb m. day    575 which excludes openness to transcendence or accountability to shared nature, may make it difficult to justify law transcending the nation. Forthright scholarship on NL in international jurisprudence continued, however, in the work of scholars beyond the Anglo-​American world. In the 1980s, Alfred Verdross at the University of Vienna described a practical and secular NL method for deriving legal principles.88 He advised deducing NL principles from positive law: ‘general principles of natural law must be accomplished through application of rules of positive law, formulated through deduction from general principles (deductio ex principiis) or by the nearer determination (determinatio principiorum)’.89 Thus, the legal community’s positive law provides evidence of its most important commonly held norms, as the ius gentium did for Cicero. Evidence of persistent NL thinking is also seen in the discussion leading to the 1968 Vienna Convention on the Law of Treaties (VCLT). The drafters agreed to give the ICJ the job of determining whether an NL principle in the form of jus cogens might exist invalidating a treaty in whole or in part.90 The ICJ has acknowledged the existence of jus cogens but has yet to invalidate a treaty on the basis of it, nor has the court devoted any discussion in majority opinions to NL more generally. Two judges, however, have made detailed comments on natural law in dissenting opinions. In the infamous 1966 South-​West Africa Cases, the ICJ found the applicant States had no standing to challenge South Africa’s imposition of apartheid in the territory of South-​West Africa, which South Africa governed as a United Nations trust territory. In a dissent, Judge Kōtarō Tanaka of Japan found that the principle of equality before the law is part of international law derived from NL.91 He traced equality to Stoic and Christian ideas and observation of human nature, which reveals our ‘common possession of reason’.92 Tanaka looked to the sources of international law listed in Article 38 of the ICJ Statute—​itself part of positive law—​as a treaty provision. He noted that Article 38 incorporates ‘natural law elements’ by extending the sources of international law ‘beyond the limit of legal positivism’, and by indicating that Article 38 (1) (c) general principles are binding on all States, even those that do not recognize them.93 International law needs these NL functions to achieve ‘its supra-​ national and supra-​positive character’.94

  Alfred Verdross and Heribert Franz Koeck, ‘Natural Law:  The Tradition of Universal Reason and Authority’, in Ronald St. J. MacDonald and Douglas Johnston, eds, The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (The Hague: Martinus Nijhoff, 1983), 17–​50. See also, e.g., Christopher G. Weeramantry, Universalizing International Law (Leiden: Martinus Nijhoff, 2004). 89   Verdross and Koeck, ‘Natural Law’, pp. 20–​1. 90   Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331), Arts 53, 64–​66. 91  ICJ, South-​West Africa Cases, pp. 285–​ 315.   92  ibid., pp. 304–​5, quoting Hersch Lauterpacht. 93 94   ibid., pp. 298–​9.   ibid., p. 298. 88

576    sources and the legality of international law Writing almost fifty years later, Judge Antônio Augusto Cançado Trindade similarly argues that positivism is not a complete theory of law. He criticizes reliance solely on positivism for denying to international law inspiration from ‘beliefs, values, ethics, ideas, and human aspirations’.95 He argues that human conscience is a ‘source’ of international law, referring to human conscience as the recta ratio or right reason of international law.96 He understands the problem of subjectivism associated with NL, but asserts that subjectivism can be overcome through the ‘universal juridical conscience’.97 This statement begs the question of what this conscience is and how it operates. Cançado Trindade can point to results of the application of universal conscience, such as the Martens Clause,98 which calls for new means and methods of warfare to be subject to the dictates of human conscience. This and other examples, however, provide little practical guidance. What seems missing in recent accounts of NL is the third strand of the classic synthesis. The use of reason and, sometimes, the observation of nature are incorporated, but not transcendence. Even religious scholars, open to the existence of the divine, do not propose transcendence, because non-​religious people are assumed to lack appreciation of it. The challenge for NL theorists is to re-​incorporate transcendence into NL reflection without asserting contestable religious claims, as earlier Christian natural lawyers did. A way forward may lie in the observation that religion is not the sole path to extra-​positive concepts. A variety of disciplines are now seeking new ways to transcendence. The interest is palpable as people confuse areas of human endeavour long inspired by transcendent belief with transcendence itself. Embrace of the arts and a certain attitude to law itself are examples. Martti Koskenniemi, for example, has written that people look to such ideas as international law for a ‘vocabulary with a horizon of transcendence . . . a kind of secular faith’.99 Aesthetics—​the study of beauty—​provides an authentic opening to transcendence. Interest in aesthetics is flourishing in philosophy and theology. Aesthetics uses secular arguments for conceptualizing ideas independent of material evidence. The approach is in harmony with the world’s great religions and schools of philosophy, as well as the humanities, sciences, and social sciences.100

  Antônio Augusto Cançado Trindade, International Law for Humankind:  Towards a New Jus Gentium, 2nd edn (Leiden: Martinus Nijhoff, 2013), p. 139. 96 97   ibid., p. 141.   ibid., pp. 143–​5. 98   See the Preamble of the Hague Convention II with Respect to the Laws and Customs of War by Land and its Annex: Regulations Respecting the Laws and Customs of War on Land (The Hague, 29 July 1899, 32 Stat. 1803). 99   Martti Koskenniemi, ‘The Fate of Public International Law:  Between Technique and Politics’, Modern Law Review 70 (2007): 1–​30, 30. 100   Aesthetic theory or aesthetic philosophy refers centrally to ideas about and the study of beauty. Gardner provides this ‘prevailing’ view of aesthetics among philosophers: 95

The experiences that we have when we listen to music, read poetry and look at paintings or scenes in nature, have a distinctive immediate, emotional and contemplative character, and lead us to

mary ellen o’connell and caleb m. day    577 One central aesthetic insight involves the human capacity to experience a purely unselfish pleasure in the beautiful. Oxford philosopher and atheist Iris Murdoch observes, ‘we take a self-​forgetful pleasure in the sheer alien pointless independent existence of animals, birds, stones and trees. “Not how the world is, but that it is, is the mystical.” ’101 Unselfish pleasure demonstrates the capacity of people to truly care about others and the natural world, even when there is little or no personal gain involved. The human capacity for selflessness, our fitness for society, supports the authority of law that combines rules promoting self-​interest with rules solely for the good of others and the world.102 The good life is the unselfish life. This is known through the unselfish pleasure experienced in the contemplation of beauty, especially in nature. ‘The self, the place where we live, is a place of illusion. Goodness is connected with the attempt to see the unself, to see and to respond to the real world in the light of a virtuous consciousness.’103 Nature, the arts, altruistic acts, and spiritual practices can all provide ‘glimpses of the transcendent’ that can anchor NL, informing reason and the lessons of nature.104 In brief, NL is most persuasively understood as a synthesis incorporating reason, observation of nature, and openness to transcendence. The three strands are discursive. Reason can be used to deduce NL norms from positive law, as Verdross recommended. Observation of nature is an opening to beauty and the transcendent. Awareness of the transcendent guides reason in the discernment of natural law and its principles superior to the positive law. This three-​part understanding of natural law is integral to three areas of international law: jus cogens, general principles inherent in legal systems, and the basis of authority. Applying the synthesis to Cançado Trindade’s approach to jus cogens reveals that his understanding of substantive NL is consistent with classic NL theories, but describe what we experience in a special vocabulary, and to use terms such as beautiful, exquisite, inspiring, moving and so on. Philosophy employs the term ‘aesthetic’ to circumscribe this kind of experience. Sebastian Gardner, ‘Aesthetics’, in Nicholas Bunnin and E. Tsui-​James, eds, The Blackwell Companion to Philosophy (Oxford: Wiley-​Blackwell, 1996), 231–​56, 229; quoted in Pierre Schlag, ‘The Aesthetics of American Law’, Harvard Law Review 115 (2002): 1047–​118. For a wide-​ranging discussion of how beauty figures in a variety of disciplines, see Vittorio Hösle, ed., The Many Faces of Beauty (Notre Dame: University of Notre Dame Press, 2013). 101   Iris Murdoch, The Sovereignty of Good (London: Routledge/​Kegan Paul, 1970), p. 85. 102   The sole work in English found by the authors linking the authority of law to beauty is a brief reference in Costas Douzinas, ‘Prosopon and Antiprosopon: Prolegomena for a Legal Iconology’, in Costas Douzinas and Lynda Nead, eds, Law and the Image: The Authority of Art and the Aesthetics of Law (Chicago:  The University of Chicago Press, 1999), 36–​70, 53. Benjamin Berger, ‘The Aesthetics of Religious Freedom’, in Winnifred Fallers Sullivan and Lori G. Beaman, eds, Varieties of Religious Establishment (Burlington: Ashgate, 2013), n. 33, cites only Douzinas and co-​authors as having ‘considered the relationship between legal imagery and the authority of law’. 103  Murdoch, Sovereignty, p. 93. 104   Gesa Elsbeth Thiessen, ‘General Introduction’, in Thiessen, ed., Theological Aesthetics: A Reader (Grand Rapids: Wm. B. Eerdmans Publishing Co., 2004), 1–​9, 6.

578    sources and the legality of international law his account of procedural aspects of law flowing from NL is not. He is right that NL is relevant to some procedural principles, but as general principles, not as jus cogens. Duties such as good faith performance of legal obligations are general principles derived from NL, but the more technical aspects of procedure, such as the jurisdiction of courts to enforce particular rules, are not. They are positive law. Positive law procedural rules do not have the non-​derogable quality of NL norms; they can be changed through positive law method. For example, the jus cogens norm against slavery is absolute, but whether, how, and where a slaveholder is prosecuted are positive law questions. Positive law is not to be denigrated. It is the larger part of law. The point of this chapter is that it is incomplete. Law, including international law, is most persuasively understood as a hybrid of natural and positive law. The substantive jus cogens consist of the prohibitions on aggression, torture, slavery, genocide, apartheid, prolonged arbitrary detention, and certain war crimes.105 These are all fundamentally moral principles.106 The rule that two States may not deprive a third State of its rights is often cited as jus cogens.107 This sort of norm, like the procedural rules discussed above, is better classified as a general principle, not jus cogens. Nevertheless, this principle of third-​State rights is not changeable by the positive law. It is a general principle of NL, in the same category as good faith108 and equality.109 These general principles tend to be abstract, taking form from facts, in contrast to the specific substantive content of jus cogens. They may not be overridden by treaties or customary rules and are, therefore, explained by natural law, but they

105   Restatement (Third) of American Foreign Relations Law (1987), section 102, comment k; section 702 and, regarding civilian protection in war, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) [2012] ICJ Rep 99. 106  ICJ, Jurisdictional Immunities of the State. Simma and Alston, in an article on the sources of human rights, argue that jus cogens and general principles may be better sources for some human rights than customary international law. While they seem to recognize two separate sources—​jus cogens and general principles—​they do not distinguish the two. However, their actual examples of human rights norms are linked to the references to jus cogens norms as in Restatement (Third), section 702. Bruno Simma and Philip Alston, ‘Sources of Human Rights Law: Custom, Jus Cogens, and General Principles,’ Australian Year Book of International Law 12 (1992): 82–​108. For more recent comments by Simma on jus cogens, see Bruno Simma, ‘Universality of International Law from the Perspective of a Practitioner’, European Journal of International Law 20 (2009): 265–​97, 272–​4. Simma points out that jus cogens norms are now generally accepted in international law and that these norms are superior to other rules and principles, national or international. This aspect of hierarchy in international law aids coherence and unity in the system. 107   See e.g., Free Zones of Upper Savoy and the District of Gex (France v Switzerland) PCIJ Rep Series A/​B No. 46 (1932); Alfred Verdross, ‘Jus Dispositivum and Jus Cogens in International Law’, American Journal of International Law 60 (1966): 55–​63. 108   Alain Pellet, ‘Commentary to Article 38’, in Andreas Zimmerman, Christian Tomuschat, and Karin Oellers-​Frahm, eds, The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2006), 677–​792; 766; Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens & Sons, 1953). 109   Nils Melzer, Targeted Killing in International Law (Oxford: Oxford University Press, 2008), p. 294.

mary ellen o’connell and caleb m. day    579 are not so much ‘higher’ norms as foundational norms. International law could not be law without them. Still, they lack the moral quality characteristic of jus cogens.

VI. Conclusion The legal theory of positivism explains the sources of most law. The realm of NL is that which positivism does not explain. The positive law sources of international law are treaties, rules of customary international law, and the general principles developed from the legislation and common law of national legal systems. That leaves general principles inherent to legal systems, jus cogens, and the basis of legal authority to NL. The NL approach produces these aspects of international law through combining reason, reflection on human nature and the natural world, and openness to transcendence. These three strands have characterized NL descriptions for centuries and remain integral to NL method. In the modern era, the transcendent component of NL was supressed to meet the demands of secularism. Despite this, NL thinking nearly vanished from jurisprudence. Without transcendence, the understanding of why certain legal principles are superior to rules of positive law loses its rationale. Transcendence is essential but can be approached from secular as well as religious avenues. Aesthetic theory offers a secular path to transcendence. Through the aesthetic theory of beauty, legal theory regains reasons in support of law’s higher norms that command obedience even when entirely in the interest of others and the natural world and not in self-​interest or the national interest.

Research Questions • What has characterized the natural law approach throughout its history? Is natural law thinking necessarily tied to specific religious, cultural, or philosophical perspectives, references to which cannot be justified in today’s pluralist international community? Will a judge or scholar using the natural law approach inevitably produce merely subjective insights or answers, or does natural law have certain objective features that help to cabin subjectivity? Is removing some traditional aspect(s) of natural law, such as openness to transcendence, a necessary and helpful solution to these problems? Alternatively, can the classic natural law

580    sources and the legality of international law method be employed in a way that is open to all perspectives, while remaining coherent and useful for international law today? • How have natural law and its three elements—​reason, reflection on nature, and openness to transcendence—​been useful for law across history? Which aspects of contemporary international law cannot be explained by positive law, and therefore require a reference to natural law? How can the tripartite natural law approach we advocate explain the extra-​positive source of these aspects of international law?

Selected Bibliography Cançado Trindade, Antônio Augusto, International Law for Humankind: Towards a New Jus Gentium, 2nd edn (Leiden: Martinus Nijhoff, 2013). Douzinas, Costas, and Lynda Nead, eds, Law and the Image: The Authority of Art and the Aesthetics of Law (Chicago: The University of Chicago Press, 1999). Finnis, John, Natural Law and Natural Rights, 2nd edn (Oxford:  Oxford University Press, 2011). Horsley, Richard, ‘The Law of Nature in Philo and Cicero’, The Harvard Theological Review 71 (1978): 35–​59. Hösle, Vittorio, ed., The Many Faces of Beauty (Notre Dame:  University of Notre Dame Press, 2013). Lauterpacht, Hersch, ‘The Grotian Tradition in International Law’, British Yearbook of International Law 23 (1946): 1–​53. Murdoch, Iris, The Sovereignty of Good (London: Routledge/​Kegan Paul, 1970). Neff, Stephen, Justice Among Nations: A History of International Law (Cambridge: Harvard University Press, 2014). Porter, Jean, Nature as Reason: A Thomistic Theory of the Natural Law (Grand Rapids: Wm. B. Eerdmans Publishing Co., 2004). South-​West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Judgment, Second Phase) [1966] ICJ Rep 6, 250 (Dissenting Opinion of Judge Tanaka).

Section   XI V

SOURCES AND THE SYSTEMATICITY OF INTERNATIONAL LAW

Chapter 27

SOURCES AND THE SYSTEMATICITY OF INTERNATIONAL LAW A PHILOSOPHICAL PERSPECTIVE

Michael Giudice

I. Introduction International law, like many other kinds of law, has multiple sources, and where there are multiple sources of law questions naturally arise about the way(s) in which they are identified and related. It has also become second nature to seek answers to such questions in the familiar terms of the idea of ‘legal system’. Accounts of what we can call the ‘systematicity of international law’ are often developed in the context of modern sovereign States, in which the idea of legal system plays a central role in the explanation of the organization of multiple sources of law, and then applied, most often by way of adverse comparison, to other kinds of law, including international law. There are, of course, well-​known facts about international law which support this approach. For example, it is true that certain instruments of international law, such as Article 38 of the Statute of the International Court of Justice

584    sources and the systematicity of international law (ICJ),1 are easy to imagine as serving the role of collecting and organizing—​that is, systematizing—​the sources of international law. Article 38 identifies four general categories of sources of international law which the Court is to apply in rendering its decisions, and even if additional sources of international law need to be added, such as Security Council resolutions, unilateral declarations of States, acts of international organizations, and possibly standards developed by non-​governmental and non-​State organizations, it is still possible to conceive of the sources of international law in terms of an ordered list. For many legal theorists, as we will see below, it is also not difficult to find elements of systematicity at the international level, in the form of general rules of law creation (such as one finds in the Vienna Convention on the Law of Treaties (VCLT))2 and general rules of dispute resolution (such as those rules which establish the existence and operation of the ICJ). Systematicity seems, therefore, like a promising view. However, there are good reasons to challenge this dominant approach to thinking about the identity and inter-​relations of the multiple sources of international law. This is what I plan to do in this chapter. I shall maintain that there are some implicit features of the concept of legal system (on one dominant understanding) which significantly compromise its use in making sense of international law and its sources, and that for these reasons new theoretical tools ought to be explored and developed. The chapter is divided into the following sections. In section II:  The Idea of a Legal System, I introduce the idea of legal system in its most familiar context, the modern sovereign State. Here I shall use H. L. A. Hart’s account of legal system as a model, and identify both the explicit and implicit features of his account. Even though Hart wrote relatively little about international law, his general view of law and legal system has occupied a central place in legal theory, including international legal scholarship. So, while an account of the systematicity of international law certainly need not end with Hart’s view, there is good reason to begin with it.3 In section III: Legal Systems and Sources of Law, I examine the connection between the idea of legal system and the idea of legal sources, showing that while system and sources are often linked together, they are separable both analytically and in practice. In section IV: An International Legal System?, I turn to application to international law, deploying the account of system and sources developed in sections   Statute of the International Court of Justice (San Francisco, 26 June 1945, 33 UNTS 993).   Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331). 3   Unfortunately, it is beyond the scope of this chapter to discuss all notions of ‘legal system’ that have been introduced in relation to international law. For example, not discussed here is the idea that international law forms a legal system because international law rests on a basis of common consent among States. See Robert Y. Jennings and Arthur Watts, eds, Oppenheim’s International Law, vol. I, 9th edn (Harlow: Longman, 1992), p. 14. There is also the intriguing idea that international law forms a legal system because it has achieved a level of completeness, in the sense that ‘every international situation is capable of being determined as a matter of law’; ibid., p. 13 (emphasis in original; authors’ notes omitted). See also Hersch Lauterpacht, The Function of Law in the International Community (Oxford: Clarendon Press, 1933), pp. 60–​9. 1

2

michael giudice   585 II and III. My aim here is to show some of the significant limitations in using the concept of legal system to understand the sources of international law. I argue that while there are surface-​level considerations for thinking about international law’s sources as forming a system, deeper analysis leads in the opposite direction. In section V: An Alternative to the Concept of Legal System, I sketch the outlines of an alternative account of the sources of international law, which does not rely on the concept of legal system and its associated presumptions, and which shows that we ought to think about the sources of international law in a way which is more sensitive to their diffuse and fragmented nature. Finally, in section VI: Consequences for Legitimacy?, I trace some of the implications of my alternative account of the sources of international law for thinking about the legitimacy and political dimensions of international law.

II.  The Idea of a Legal System Questions about the systematicity of international law range over a variety of different concerns and issues. Is there more than one way in which international law might or might not be systematic? Must there be an international legal system for there to be international law? How are we to distinguish claims of systematicity which are of a descriptive-​explanatory nature from those that are aspirational? Even a brief survey will show that, just as it is with state-​focused legal theorists, not all international legal theorists operate with the same understanding of legal system. Some explanation of the general terrain will therefore be helpful before focusing particularly on Hart. First, one prominent way of understanding the idea of legal system derives from Hans Kelsen’s work.4 For Kelsen, the idea of legal system was a necessary postulate of reason, a kind of transcendental rationality which was required to make sense of the way in which States and State actors conceive of their activities of law creation and law application. According to Kelsen, treating norms as law required treating those norms as legally valid, which meant treating them as members of a legal system and so derivable from an ultimate source of law, the Grundnorm. Only by presuming an ultimate source of validity, which unifies a legal system, could States and State actors correctly conceive of themselves as operating with law. This view also leads Kelsen, as is well known, to the monistic view that if there is to be law all   See, e.g., Hans Kelsen, Pure Theory of Law, trans. Max Knight, 2nd edn (Berkeley: University of California Press, 1967). 4

586    sources and the systematicity of international law over the world, in different States, there must also be a single legal system, or single Grundnorm, which validates the law of all States.5 Second, the idea of a legal system has also been used to refer to a set of institutions and norms constituted by a coherent set of moral and political principles and ideals. In this sense, the idea of legal system cannot be divorced from ideas of moral and political value, which serve to underlie and justify the existence and content of law. At the domestic or State level Ronald Dworkin is most famous for developing this notion of legal system,6 while at the international level Allen Buchanan’s work on human rights, recognition, and self-​determination best exemplifies the commitment to a moralized notion of legal system.7 Third, in the specific context of international law, there is also a familiar idea of legal system used to refer to the common language or grammar created by international legal scholars. On this sense of legal system, Jean d’Aspremont offers the following helpful observation: it cannot be denied that international legal scholars have always constituted grammarians of the language of international law. By contrast with domestic law, the systematization of international law has primarily been an achievement of legal scholarship rather than of legal practice. International law would not have reached its current level of systemic development without the input of international legal scholarship.8

These are all important accounts of the idea of legal system, and deserve much more attention than I can give them here. However, they have key differences from the account I will pursue, which is based on Hart’s general jurisprudence. Unlike Kelsen’s theory, which seeks an account of law and legal system freed from any non-​ legal facts, and Dworkin’s and Buchanan’s arguments, which make international law crucially dependent on its moral value, Hart’s concept of legal system is thoroughly based on social facts which constitute the existence, content, and character of law. Regarding the concept of legal system as a common language and grammar created by international legal scholars, while such a concept is not strictly incompatible or incommensurable with a social fact theory, it is nonetheless also importantly different from Hart’s concept. The extent to which the systematization of international law performed by international legal scholars is accurate depends on the extent to 5   This ultimate Grundnorm might either rest in a single State, or in the international community itself. From the perspective of the Pure Theory of Law, there is no way to choose. Kelsen, Pure Theory, pp. 332–​3. 6   See Ronald Dworkin, Law’s Empire (Cambridge: Havard University Press, 1986). 7   See Allen Buchanan, Justice, Legitimacy, and Self-​Determination (Oxford: Oxford University Press, 2004), and James Crawford, The Creation of States in International Law, 2nd edn (Oxford: Oxford University Press, 2006). 8   Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011), pp. 210–​11. See also Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) (reissue with a new epilogue), pp. 567–​8.

michael giudice   587 which such systematization reflects the degree of systematization represented by the various social practices constituting international law. In this regard, it is important to test, against social facts, the extent to which the systematization performed by international legal scholars and legal professionals has come to be accepted among international legal actors.9 As I said, the account I shall assess has its roots in Hart’s general theory of legal system. Many of the key features of Hart’s theory are well known, and so can be presented briefly.10 First, his theory locates the ultimate existence conditions of a legal system and its basic sources in social facts. A legal system exists where there are special social practices, namely social practices where officials recognize and accept sources of law, and the rules contained in those sources, for themselves and for non-​official subjects. Second, the rules forming a legal system are of different kinds, and exist at different levels. There are what Hart calls ‘primary rules of obligation’, such as rules of the criminal law and tax law, which apply directly to the conduct of subjects, and ‘secondary rules’ of change, adjudication, and recognition, which apply mainly (but not exclusively) to the conduct of officials, and set out how disputes arising under primary rules and other legal rules are to be decided, as well as how primary rules and other legal rules are to be introduced, modified, and identified in the first place. Among these secondary rules, the rule of recognition plays the most important role in explaining how a legal system is unified, for the rule of recognition sets out the criteria which all rules of the system must meet if they are to be considered members of the legal system. As Hart says, ‘[i]‌t is this situation which deserves, if anything does, to be called the foundations of a legal system’.11 Third, where there is a legal system we can expect, as a matter of ‘natural necessity’,12 that issues of property, contracts and agreements, and the use of violence are all regulated. This is not to say, as Hart cautioned, that any specific rules can be expected, or that any specific standards of morality are reproduced in these rules, but only that some rules governing these social issues must be in place for a legal system to exist. So, for example, property might be individually or collectively owned, all or only some groups might enjoy freedom of contract, and criminal laws might or might not draw distinctions based on race and so apply either equally or unequally in a society. Fourth, legal systems claim supremacy over all other normative systems.13 While many social organizations, such as universities, sports leagues, and clubs are   See, e.g., the many fascinating case studies examined in Nils Jansen, The Making of Legal Authority (Oxford: Oxford University Press, 2010). 10   Hart’s account of legal system is found primarily in c­ hapters 5 and 6 of The Concept of Law, 3rd edn (Oxford: Oxford University Press, 2012). 11 12   ibid., p. 100.   ibid., p. 199. 13   In the ‘Postscript’, Hart writes: ‘the distinctive features of law are the provision it makes by secondary rules for the identification, change, and enforcement of its standards and the general claim it makes to priority over other standards’. ibid., p. 249. 9

588    sources and the systematicity of international law constituted by a union of primary and secondary rules, their rules do not claim, nor do they enjoy, supremacy over other normative systems operating at the same time and in the same space. They do not, in other words, claim or enjoy the kind of normative supremacy that State legal systems typically claim to possess. A fifth feature of Hart’s account of legal system follows quite naturally from the claim to supremacy. This is the idea that in some particular time and place there can only be one legal system in existence; that is, one ultimate rule of recognition which collects and unifies all the legal norms in effect over a society. As Hart explains, where there are multiple claims to supremacy, or multiple rules of recognition, each trying to establish legal order, the social situation will be inherently unstable, especially if the multiple rules of recognition validate conflicting or competing rules.14 The preceding features of Hart’s account of legal system are well known and have been extensively discussed. However, there are three other features of Hart’s account which have been much less explored. The reason for the lack of attention is not hard to find. Hart’s account of legal system drew squarely from investigation of the nature of a mature State legal system, viewed in isolation from other States and under conditions of stability. With this contextual backdrop, certain presumptions in Hart’s account of legal system were present, but remained largely out of sight. The first presumption is that for a legal system to exist, and for its borders to be determined, a determinate class of legal officials must be identified, as it is a special, determinate class of officials whose social practices amount to a rule of recognition which ties together a legal system. In Hart’s account the task of explaining and identifying who is to count as a legal official was never carried out, as he never offered more than a loose list of examples, fixing ideas where he had to by resort to appellate level courts alone.15 This strategy is, of course, quite understandable and perhaps defensible in the context of a single, stable, and mature State legal system with effective appellate courts, but it reaches its limits quite quickly when applied to contexts where there are multiple legal systems standing in relation to one another, and where there are comparatively weaker courts or fewer issues that are resolved by courts. International society, and international law, is one such context, and it is worth noting that Hart made no effort to consider whether we might find an international rule of recognition in the practices of the International Court of Justice (ICJ), or its ancestor, the Permanent Court of International Justice (PCIJ). Hart’s only observation about the ICJ was the familiar one, that it lacked compulsory jurisdiction, and so for this reason made it quite different from typical domestic courts. A second underappreciated feature of Hart’s account of legal system is what we might call the independence or autonomy of legal systems. This is the idea that legal systems are to be understood as self-​standing unions of rules, which do not depend, nor does the validity of their rules depend, on the existence or authorization of

 ibid., pp. 122–​ 3.   15  ibid., p. 256.

14

michael giudice   589 other legal systems or sources of law. In this way, legal systems are meant to settle their own borders, by distinguishing between what is law within the system and what is not law within the system, and so providing a kind of normative closure. The presumption of the independence or autonomy of legal systems is easy to miss in the context of theorizing a single, stable State, viewed in isolation from other States. In such a context, there is less need to worry about the borders, for one can assume that the borders are already fixed and the remaining task is simply to explain the nature of what is within the borders. Yet again, in other contexts, the presumption needs to be scrutinized. In Hart’s well-​known chapter on international law in The Concept of Law, he displays the presumption quite clearly, for he considers only the question of whether international law is unified by an independent and autonomous legal system, and not whether it might be in the nature of international law that it not be so independent or autonomous, but resting instead on (or perhaps inside) the legal systems of States.16 Indeed, there is something rather odd in thinking about international law in a way in which it is to be understood and characterized independently and autonomously from the legal systems of States. The oddity, I contend, is likely a product of the presumption of independence and autonomy Hart and others associate with the concept of legal system. A third and final presumption, which is not explicitly identified as such in Hart’s account, follows from several of the features already mentioned, but is important to identify on its own. This is the presumption that a legal system extends comprehensively over the social sphere in which it exists. Within the context of a single, stable State, this presumption is also easy to overlook. If we are considering the laws of sovereign States, it is quite natural to speak of, for example, ‘the Canadian legal system’, ‘the German legal system’, or ‘the Chinese legal system’. Of course, such expressions belie much complexity and variation, and the singular article ‘the’ suggests much uniformity and organization across a wide range of areas of law and institutions within States which may not really exist. Yet such expressions are also direct evidence of the presumption that if there are legal systems in Canada, Germany, and China, then those legal systems govern comprehensively; that is, across all of Canada, Germany, and China. Turning to Hart, the presumption is clearly present in his account of international law, as he considers only whether there is one international legal system. He does not consider whether there might be many international legal systems, such as a legal system of the World Trade Organization (WTO), a legal system of the United Nations, a legal system of international treaties based on the VCLT, etc., even though such organizations and normative structures exhibit quite plainly systems or unions of primary and secondary rules which govern issues such as the use of force, the ownership and transfer of goods, and 16   Later theorists have considered such an explanation (particularly in the context of the European Union). See Neil MacCormick, Questioning Sovereignty (Oxford: Oxford University Press, 1999), ch. 6, and John Gardner, Law as a Leap of Faith (Oxford: Oxford University Press, 2012), pp. 285–​6.

590    sources and the systematicity of international law the keeping of promises. Indeed, precisely because of the presumption, Hart could not consider such a possibility of multiple legal systems of international law, since this idea is antithetical to the very idea of legal system with its presumption of comprehensiveness.

III.  Legal Systems and Sources of Law In section II, I presented the core features, both the explicit and implicit ones, in Hart’s account of legal system. Although I introduced some of the implications of Hart’s account for thinking about international law, I shall turn to a fuller application to international law in section IV. What remains to be done in this section is to spell out precisely the connection between the concept of legal system elaborated so far and the idea of sources of law. With an account of this connection in hand, we will then be ready to turn to international law to see precisely what a system-​centred view of the sources of international law can and cannot offer. What is the connection between legal systems and sources of law? It is important to notice that the idea of a source of law is fairly ambiguous, so some disambiguation is required. ‘Source of law’ might refer, in a very general and loose sense, to the inspiration or motivation which explains why particular rules were chosen and why they came to have the shape, form, and content that they now have. In this broad sense, the desires, objectives, hopes, fears, and the sense of justice or fairness, perceptions of political acceptability, and economic analyses relied upon by law-​ makers might all be considered sources of law, as such sources could play a role in the explanation of why particular rules of law were created and why they came to have the shape, form, and content which they now exhibit. However, this is not the idea of a ‘source of law’ that I shall be concerned with here. Rather, I shall understand ‘source of law’ to mean those social practices and institutions which have come to be recognized as social practices and institutions which create law. So, to ask about a source of law is not, on this understanding, to ask what inspirations or motivations explain the existence and content of particular legal rules, but rather, it is to ask about where in society we are to find particular legal rules in the first place.17 This is not meant, of course, to be a novel account of the idea of sources of   The distinction I  am drawing here is similar to the distinction many draw between ‘material’ and ‘formal’ sources of law, especially at the international level. For discussion of that distinction, see d’Aspremont, Formalism, ch. 2, and Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2010), 163–​85, 170. 17

michael giudice   591 law, but it is meant to reflect the sense in which we speak of, for example, the practices of courts (such as the doctrine of precedent) and legislative institutions (such as a parliament) as sources of law, as it is in these places where particular legal rules are made and found. With this preliminary distinction in place, we can now fill out the picture of the relation between sources of law and legal systems. In section II, I wrote rather loosely that a legal system, on Hart’s account, is the union of primary and secondary rules. ‘Union’ is here meant to express the idea that legal systems function by tying together all the legal rules which are members of the legal system. But, of course, the picture is missing an important layer. Legal systems, at least those with which we are most familiar, do not unite all their member legal rules directly, but do so in a mediated fashion, by recognizing general sources or categories of rules, such as judicial precedents, statutes, regulations, and constitutional laws. Hart’s idea of the rule of recognition has been particularly helpful in explaining the layers of legal systems, sources of law, and specific legal rules, and how they relate together. A special class of legal officials recognize, as a socially accepted and practised rule, certain sources of law within their legal system, and within such sources is where we find the specific legal rules of a legal system. In legal systems where there are several sources of law, which is to say many if not most legal systems, the multiple sources of law will usually, perhaps typically, be ranked in order of priority or normative force.18 The precise connection between sources of law and practices of recognition is easy to miss but crucial to Hart’s account, and so merits further elaboration. In a key passage in The Concept of Law explaining the nature of the rule of recognition in even the simplest of societies, Hart makes the following vital observation: It may, as in the early law of many societies, be no more than that an authoritative list or text of the rules is to be found in a written document or carved on some public monument. No doubt as a matter of history this step from the pre-​legal to the legal may be accomplished in distinguishable stages, of which the first is the mere reduction to writing of hitherto unwritten rules. This is not itself the crucial step, though it is a very important one: what is crucial is the acknowledgement of reference to the writing or inscription as authoritative, i.e., as the proper way of disposing of doubts as to the existence of the rule.19

The expression ‘source of law’, when used to refer to basic sources of law such as constitutions, statutes, and judicial precedents, may give the impression that one has reached the foundations of law in a specific legal system. One might even say that the root expression ‘source’ suggests ‘foundation’ or ‘origin’ by its very nature. 18   It is worth noting that Hart always stopped short of claiming that a ranking of legal sources in a legal system was necessary. See Hart, The Concept of Law, pp. 95, 101, 105. Unfortunately, he provided no example of a legal system with multiple sources but no hierarchy. Indeed, the only example of a kind of law, discussed by Hart, where we do find multiple sources of law which are not ranked in order of priority is precisely an instance of law where Hart denied the existence of a legal system. This is, of course, the example of international law. 19   ibid., pp. 94–​5 (emphasis added).

592    sources and the systematicity of international law However, as Hart explains, for any settled source of law we might identify, such as a constitution, statute, or judicial precedent, we must always realize that it would not be a source of law but for the fact that it is regularly recognized or acknowledged as a source of law. Regular social practices of recognition therefore lie at the foundation or ultimate source of law, not particular settled sources, which are more akin to products rather than producers. It is this observation that explains the enduring value of Hart’s social fact account of legal systems. It is an observation which is also often overlooked in accounts not just of State law, but also of international law, as we will see below. It is also worth noting that I  have chosen in the paragraph above to write of ‘practices of recognition’, in the plural, rather than ‘rule of recognition’, in the singular. While Hart acknowledged that the idea of a rule of recognition was meant to serve as a kind of notional summary or shorthand for referring to a rather complex array of facts,20 his repeated use of the idea of ‘rule of recognition’ has unfortunately often given the misleading impression that the various practices of indeterminately identified officials do always unite in and amount to a singular rule wherever there is a legal system. I do not think this is a sound view, but I shall not debate this here.21 What is more important for present purposes is to note that if practices of recognition do not always settle on a single rule of recognition, the view that those sources of law which are recognized in some social situation always form a unified system is thereby compromised. More bluntly, practices of recognition might settle on a unified system of sources or they might not; it depends on social practice. As we will see in sections IV and V, this is an important observation for thinking about the sources of international law.

IV.  An International Legal System? For those who have raised the question of the application of Hart’s theory of a legal system to international law, a near consensus has emerged. While Hart might have been correct to note in 1961 that the facts did not warrant any observation that international law formed an international legal system,22 this is no longer true. We find,   ibid., pp. 110–​15.   See Keith Culver and Michael Giudice, ‘Making Old Questions New:  Legality, Legal System, and State’, in Stefan Sciaraffa and Wil Waluchow, eds, Philosophical Foundations of the Nature of Law (Oxford: Oxford University Press, 2013), 279–​300. 22   Jeremy Waldron, ‘Hart and the Principles of Legality’, in Matthew H. Kramer, Claire Grant, Ben Colburn, and Antony Hatzistavrou, eds, The Legacy of H. L. A. Hart (Oxford: Oxford University Press, 2008), 67–​84, 68–​9. 20 21

michael giudice   593 for example, in the introduction to The Philosophy of International Law, Samantha Besson and John Tasioulas writing: a set of primary legal rules may be regarded as law even in the absence of secondary rules, being deemed, in Hart’s phrase, a ‘primitive legal order’. This is the case if international law lacks a rule of recognition that can establish the validity of individual primary rules by reference to some ultimate rule of the system. This was Hart’s view of international law given his rejection of the Kelsenian a priori assumption of an international Grundnorm. While such a reductive view of international law may have been factually correct in 1961, it no longer is. General international law has internal rules that determine its own validity and may therefore be deemed an autonomous legal order, and this is true of international conventional law as much as of customary law.23

There are indeed many such examples of later legal theorists claiming that Hart was clearly wrong in supposing there are no international secondary rules, and so no international legal system.24 To focus matters, it will be useful to consider a recent article by one of Hart’s harshest critics on this issue.25 Jeremy Waldron describes Hart’s chapter on international law as in many ways displaying the mark of ‘obtuseness’.26 As Waldron maintains, it is rather easy to find international secondary rules. Regarding rules of adjudication, we need only look at the ICJ: The constitution of the International Court of Justice as a court is definitely an instance of a secondary rule as Hart understands this category of rule earlier in the book. The operation of such a court, with or without compulsory jurisdiction, cannot be understood except in terms of secondary rules.27

Similarly, secondary rules of change are also easy to spot: It is true that the international order lacks any institution that looks like a Parliament. It is true that it lacks exactly the kind of secondary rules that are necessary to constitute an institution of that sort. But again we cannot infer from this—​as Hart does—​that it lacks secondary rules of change altogether. For there may be other modes of legal change besides legislation. . . . As individuals in a municipal order may enter into contracts, so states in the international order may enter into treaties and vary their obligations to one another accordingly. Such powers would be unintelligible if the international order were just a system of primary rules.28

  Samantha Besson and John Tasioulas, ‘Introduction’, in Besson and Tasioulas, eds, The Philosophy of International Law, 1–​27, 10 (authors’ notes omitted). 24   David Lefkowitz, ‘(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach’, Canadian Journal of Law and Jurisprudence 21 (2008): 129–​48; Waldron, ‘Hart and Principles’; Besson, ‘Theorizing the Sources’; and Jeremy Waldron, ‘International Law: A “Relatively Small and Unimportant” Part of Jurisprudence?’, in Luís Duarte D’Almeida, James Edwards, and Andrea Dolcetti, eds, Reading H. L. A Hart’s The Concept of Law (Oxford: Hart, 2013), 209–​23. 25  Waldron, ‘International Law’.   26  ibid., p. 209. 27  ibid., p. 216.   28  ibid., pp. 216–​17. 23

594    sources and the systematicity of international law As Waldron continues, the VCLT is unmistakeably a set of secondary rules of change for international law: Not only that, but the international order has well-​established norms about treaty-​making like those set out in the Vienna Convention on the Law of Treaties. The 85 articles of that convention are all secondary rules: they cannot be understood in any other way.29

Interestingly, on the question of whether there is an international rule of recognition, Waldron is less concerned to find one, noting his prior doubt about whether the notion of a rule of recognition is even necessary, i.e., whether it adds anything to the notions of rules of adjudication and rules of change.30 He argues that even so, we can find instances or practices of recognition on the part of the ICJ, and on the part of States regarding the VCLT. But we ought not to presume, Waldron insists, too strong a threshold of unity in order for there to be an international legal system. Waldron explains: One point that Hart seems anxious to insist on is that the international order lacks a single rule of recognition to perform a ‘unifying’ function, providing not only the criteria we use to identify valid, binding treaties and valid customary norms, but ordering them into a structural unity whereby it is clear which ones have priority over others. . . . Systematicity is no doubt important, but it has to be acknowledged that almost all legal systems lack it to some degree or other.31

It is difficult to dispute Waldron’s observations. The ICJ is indeed constituted by and operates with the use of secondary rules of adjudication, and the VCLT is an irrefutable example of a suite of secondary rules of change. I would also not dispute the claim that international law lacks a great deal of systematicity, even though such a lack of systematicity can persist despite many practices of recognition. But do all these observations show that Hart was wrong about international law, and wrong particularly in the way in which he applied his own theory of legal system to international law? Probably not. Notice that the argument which Waldron deploys, and which many others do as well,32 is to find examples of secondary rules of international law, and then conclude that international law was therefore not a primitive legal order, or mere set of primary rules of obligation. But as I argued earlier, a union of primary   ibid., p. 217.   ibid., p. 219. See also Jeremy Waldron, ‘Who Needs Rules of Recognition?’, in Matthew Adler and Kenneth Himma, eds, The Rule of Recognition and the U.S. Constitution (Oxford: Oxford University Press, 2009), 327–​49. 31   Waldron, ‘International Law’, p. 220. 32   Besson writes, e.g., ‘[n]‌umerous secondary rules may be retrieved in international law nowadays’. Besson, ‘Theorizing the Sources’, p. 178. In an article on whether customary international law can be seen to have a rule of recognition, David Lefkowitz makes the following qualification: ‘[n]ote . . . that the argument of this paper depends only on the existence of a rule of recognition for customary international law, and not a single all-​encompassing rule of recognition at the base of the entire international legal order’. Lefkowitz, ‘(Dis)solving the Paradox’, p. 137. 29

30

michael giudice   595 and secondary rules is only one element, albeit a necessary element, in Hart’s concept of legal system. The other elements include: plausible claims of supremacy and comprehensiveness, according to which the rules of a legal system that are asserted enjoy some degree of supremacy over other types of norms, while covering some entire geographical or social space; independence, in which the rules of a legal system amount to an autonomous and separate order from other legal systems; and rules covering the subject matters of property, violence, and agreements. While Hart was not always explicit in identifying all the features of his concept of legal system at work, there is still good reason to believe he was committed to them, especially when viewed in the context of his discussion of international law. So, while Waldron and others are quite right to find secondary rules of international law in many places, the presence of secondary rules of international law is insufficient to show that there is a single international legal system, rather than multiple international legal systems, which as I noted earlier, becomes a difficult view to maintain given a concept of legal system which includes presumptions of supremacy and comprehensiveness.33 When viewed in light of all the elements of Hart’s concept of legal system, his conclusion regarding international law appears less far-​fetched than Waldron supposes. While there might be secondary rules of change and adjudication here and there, there may yet be no system-​wide secondary rules of change and adjudication, and therefore, by association, no single rule of recognition for all the sources of international law. At least, further argument would be required on the part of Waldron and others to show that such system-​wide rules exist. The connection to the sources of international law is important to draw out here. If there are no system-​wide secondary rules of change, adjudication, and recognition, the various sources of law—​customs, treaties, resolutions, etc.—​may be similarly disunified, even though, viewed on their own and in isolation, we are often able to find unions of primary and secondary rules for customary law, treaty law, and so on. Notice, however, that once we acknowledge that there are no system-​wide secondary rules, we might also have to accept the conclusion that it is misleading to speak of customary law, or treaty law, as single sources on their own. Rather, different customary practices, and different treaty regimes, might also exist in relative independence from each other, existing as island-​like legal sources. Still, there is something to be learned from the rather staunch reactions that later theorists, such as Waldron, have had towards Hart’s view of international law. The lesson is about alternative conceptual schemes. The concept of legal system, with 33   It seems clear that Waldron did not consider either the connection or the difference between secondary rules and legal systems. Throughout the article from which I have quoted he employs the expression ‘primitive system’, a logical contradiction of sorts within Hart’s framework, and in the concluding section he speaks of ‘international legal systems’, in the plural. Waldron, ‘International Law’, pp. 209, 217, 222. While there is, of course, an essential connection between secondary rules and the concept of legal system, the two should not be conflated.

596    sources and the systematicity of international law all the presumptions that we find visible in Hart’s account, seems to force a choice upon us when using it to make sense of specific kinds of law:  either we find no legal system, and conclude that there is only a primitive set of primary rules, or we find a legal system, thick with secondary rules whose union with primary rules ranges comprehensively, independently, and supremely over some social sphere of life. Neither option, however, is of much use in thinking about international law, as I believe the above investigation has shown. Thankfully, there are other ways to think about law. The concept of legal system might very well be the dominant and popular way in which to conceive the existence and character of law wherever it is believed to exist, but it need not be the only way, or best way. I believe Waldron was correct to write in terms of multiple international legal systems, and to say that systematicity comes in degrees, but the reasons for such statements actually point towards and recommend exploration of alternative—​that is, non-​system-​centred—​ ways of thinking about law, and international law in particular. In section V, I introduce an alternative conceptual way of explaining the character of international law, which explains more accurately the way the sources of international law are both connected and unconnected.

V.  An Alternative to the Concept of Legal System What might an alternative to the concept of legal system look like? Since the concept of legal system has enjoyed such a dominant and pervasive role in explaining the nature of law, dismantling its foundation is a significant undertaking, and a task well beyond the scope of this chapter. Instead, the best I can do is present the elements of an alternative view, and suggest how these provide better explanatory tools than Waldron’s indeterminate ideas of degrees of systematicity and multiplicity of legal systems in the context of explanation of international law and its sources. Fortunately, the elements of the alternative account I wish to present have already been introduced elsewhere. In Legality’s Borders,34 Keith Culver and I offered the beginnings of a view of law which has no central reliance on the ideas of legal system, hierarchy, supremacy, chains of validity, legal officials, or States.35 Instead,   Keith Culver and Michael Giudice, Legality’s Borders (Oxford: Oxford University Press, 2010).   While such ideas might still have their uses in explaining some forms of legal order, we argue that they are often ill-​suited for explanation of other forms of legal order, particularly for non-​State forms of legal order. 34 35

michael giudice   597 the inter-​institutional view, as we call it, finds law in the various combinations of content-​independent norms, norms of change, application, and enforcement, institutions which carry out activities of norm creation, application, and enforcement, and relations of mutual reference whereby institutions of various kinds interact with each other at varying levels of intensity in establishing legal order over various ranges of issues and across various levels and scopes of social life. Not all these elements are necessary for legal order to be present in some social situation, but only some combination. Most importantly, to find legal norms does not require finding a foundation (or tracing a chain of validity) in a legal system, of a State or non-​State kind, which has a distinct class of legal officials and which claims comprehensiveness and supremacy over other normative orders. The inter-​institutional account is a general, philosophical view of law and its sources, and its merits can only be assessed by testing it across a wide variety of legal phenomena. We have applied the view to contexts such as private transnational agreements, federal States (and particularly those with forms of indigenous self-​governance), and the European Union. Its success therefore depends on how well it can explain the existence and character of these instances of law, especially when viewed in competition with State-​and legal system-​based theories of law. While I will not rehearse these arguments here, I do wish to show some of the merits of the inter-​institutional view in making sense of the diverse sources of international law and their relative connections where these exist. A brief illustration should help to demonstrate the elements of the inter-​ institutional view as an alternative to system-​centred views of the sources of law. Consider the question of how best to understand the character of what we can call inter-​regime relationships in public international law. To simplify matters, consider in particular the relationship between three treaty-​based regimes in international law:  international trade law, international environmental law, and international human rights law. Here we can ask simply, do such regimes of international law form a legal system or not? Or, alternatively, are such regimes part of a single legal system? A system-​centred approach to the question of the relationship between international trade law, international environmental law, and international human rights law, would no doubt find it easy to conceive of them in terms of systematicity. They are, after all, treaty-​based, created in accordance with the provisions set out in the VCLT, and treaties are in turn listed as a single category of source of international law under Article 38 of the ICJ Statute. How could such sources of law not be considered part of the same legal system? Such an approach could also be characterized as a top-​down approach, in which the content of international law and its sources are first assembled as a whole and traced to a single foundation, then relationships between particular sources are subsequently derived. To give an example, this is the approach adopted by Joost Pauwelyn, in his rich and insightful book on how WTO law relates to other rules of international law, including international environmental

598    sources and the systematicity of international law law and international human rights law.36 Briefly, Pauwelyn develops his account in the following steps. First, he argues that treaty-​based regimes, such as WTO law, are not to be understood as autonomous legal systems, but instead as branches or sub-​systems of general international law. Second, treaty-​based norms do not all give rise to obligations of the same kind on the part of States.37 Some treaty-​based norms, such as WTO norms, create ‘reciprocal’ obligations, in which the obligations contained in multilateral treaties are to be understood as a sum or collection of bilateral obligations between pairs of States only. Other treaty-​based norms, such as those found in environmental treaties and human rights treaties, create ‘integral’ obligations, in which the obligations contained in multilateral treaties are owed to all other parties to the treaty (and in some instances non-​party States as well) as a collective. The difference between reciprocal and integral obligations is a function of the content or subject matter of the norms contained in the treaties and the interests they serve. Reciprocal obligations aim to serve interests between two States, such as economic interests in trade with each other, while integral obligations are not so restricted, and are meant to serve interests which are shared widely, such as protection of the environment and human rights. Third, the difference between types of obligations, as Pauwelyn argues, has consequences for the ways in which WTO law, for example, ought to be applied and interpreted. Since integral obligations concern matters of common and so greater interest, in cases of conflict with reciprocal obligations integral obligations ought to prevail. The preceding summary of Pauwelyn’s account naturally omits much of the detail of his arguments. In general, there is of course much value to his approach, as it helps to make plain one very important way in which the sources of international law could and perhaps ought to be viewed (indeed, I have no dispute with the way in which Pauwelyn develops his conceptual framework for navigating conflicts of norms between WTO law and non-​WTO law). But viewed in this way, system-​ centred approaches such as Pauwelyn’s tend to look more like ideal-​based or aspirational perspectives on the sources of international law, rather than a ground-​level look at the social reality of actual instances of inter-​regime relationships in all of their complexity and variability.38 To explain further, his project of developing a conceptual framework for handling disputes which involve conflicts between WTO rules and non-​WTO rules must be understood against the backdrop of a weak and mixed history of WTO institutions recognizing and referring to non-​WTO rules,   Joost Pauwelyn, Conflict of Norms in Public International Law (Cambridge: Cambridge University Press, 2003). 37   ibid., pp. 52–​88. 38   It is important to note that by ‘ideal-​based’ or ‘aspirational’, I do not in any way mean to suggest ‘idealistic’ or ‘utopian’. Pauwelyn’s framework for resolution of conflict of norms across international trade, environment, and human rights law is realistic, and he provides several examples of instances where such resolution seems to be possible. I mean only to rely on a basic distinction between fact and value as two alternative (although complementary) perspectives. 36

michael giudice   599 such as those found in environmental and human rights treaties.39 So while there may be good conceptual reasons for thinking that the WTO can and ought to recognize non-​WTO rules, Pauwelyn’s account remains prescriptive. The extent to which there are relations of mutual reference between WTO and non-​WTO institutions is essentially an empirical matter. Notice also that even if the relations of mutual reference between WTO and non-​WTO institutions were to approach completion, the degree of systematicity achieved (if we would like to put it in such terms) would still be a result of a thick web or network of regular patterns of mutual reference. The degree of systematicity achieved would not be, in other words, a result or function of the settled sources of international law or the fact that WTO treaties and non-​ WTO treaties both fall under the same general category or source of international law, i.e., treaty law. In contrast, the inter-​institutional view could be characterized as a bottom-​up approach to questions about inter-​regime relationships in international law. It would look first to see whether there are content-​independent norms, particularly those addressing issues of property, promises, and the use of violence, that are observed in some social context. It would look next to see which specific institutions are involved in the creation, application, and enforcement of such norms, and the degree to which such institutions mutually refer to each other in their operations. In the example of international trade, environment, and human rights law, an inter-​institutional approach would find content-​independent norms,40 together with institutions within each treaty regime which are involved in the creation, application, and enforcement of such norms, and which mutually refer to each other within their respective regimes. Of particular interest for the inter-​institutional view, and for us, is whether and to what extent there are relations of mutual reference between institutions across the respective treaty regimes. From a historical perspective, here we would find, I believe, little regularity and much variation. For example, while there is evidence that things are changing, institutions of the WTO, such as its panel and Appellate Body, have a rather poor record of recognizing norms and institutions from the treaty regimes of environmental and human rights law.41 In this way, the legal order between international trade, environmental, and human rights law enjoys a kind of loose or fragmented existence internationally, or in other words, a weak or low degree of systematicity. However, the inter-​institutional view is able to go beyond the rather blanket and metaphorical assessments of fragmentation and low-​degree systematicity, by explaining how such fragmentation is to be investigated and how it might be overcome. It does so not by looking to the nature 39   See e.g., Robert Howse and Makau Mutua, ‘Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization’, Institute for Agriculture and Trade Policy (26 September 2000), , accessed 10 September 2016. 40   The fact of being created by and found in treaties is itself a kind of content independence. 41   See again, Howse and Mutua, ‘Protecting Human Rights’.

600    sources and the systematicity of international law of general and specific sources of international law and attempting to derive relationships, as an international lawyer or court might do,42 but rather by tracing the patterns of interaction between institutions and assessing their relations of mutual reference. Such interaction might of course be quite spotty, uneven, and unstable in various ways, but the inter-​institutional view will be able to tell us precisely how and why this is so. I do not want to give the impression that this is all we might say about inter-​ regime relationships, or that there is only value in looking at such contexts through the lens of the inter-​institutional view. Instead, I shall offer two brief observations, one to clarify my account and the other to connect it to the main argument of this chapter. First, it is important to note that the perspective of the inter-​institutional view, and the perspective generally taken up in this chapter, is not a judicial perspective. It can be acknowledged that there is a rather natural association between a system-​centred perspective and a judicial perspective, in which a court attempts to work with a systemic view of the sources of law to decide some dispute in a coherent way. This is an important perspective, but it should often be characterized as an aspirational or prescriptive perspective, about the way in which the international community ought to address some specific issue. In contrast, the inter-​institutional view investigates the extent to which such a judicially constructed, systemic view of law corresponds to the social reality of sources of law in particular contexts. Second, the inter-​institutional view disrupts quite significantly the potential (or perhaps hope) for systematicity which might seem possible when considering the standard sources of international law identified, for example, in Article 38 of the ICJ Statute. In that article, international conventions, customs, general principles, judicial decisions, and teachings are all listed as sources of international law that the court shall apply in rendering its decisions. While many dispute the usefulness of thinking about the sources of international law in relation to Article 38,43 theoretically it seems conceivable that such sources could be ordered and ranked in some systemic fashion. What the inter-​institutional view does, however, is add to, yet at the same time disrupt this list of sources: it adds inter-​institutional practices of recognition, among international and national institutions, to the sources of international law, yet, such inter-​institutional practices of recognition are often unstable, uneven, and contingent (that is, unsystematic). As we have seen, the inter-​institutional reality of inter-​regime relationships in public international law challenges the potential for systemic unity among the standard sources of international law, and for that reason motivates, among other things, exploration of alternative descriptive-​explanatory explanations to those offered by system-​centred views of international law. 42   Pauwelyn’s approach is avowedly court-​or tribunal-​centred. See Pauwelyn, Conflict of Norms, pp. 7–​8, 91. 43   R. Y. Jennings, ‘The Identification of International Law’, in Bin Cheng, ed., International Law: Teaching and Practice (London: Carswell, 1982), pp. 3–9, 3, 9, and d’Aspremont, Formalism, p. xxii.

michael giudice   601

VI.  Consequences for Legitimacy? The perspective taken up in this chapter has been of a morally and politically neutral kind, but it is worth explaining some of its moral and political implications, since evaluatively neutral and evaluatively committed approaches are complementary as I  see them. So, what might happen to accounts of the legitimacy of the sources of international law if we opt for my alternative inter-​institutional theory instead of systematicity?44 In one respect, the difference is minimal. Even for those who accept the idea of legal system as a basic conceptual framework for thinking about the sources of law, questions of legitimacy are to be answered by looking first at the micro-​level to specific norms, institutions, and their interactions, then building up, in an aggregative way, to macro-​level assessments of the legitimacy of legal systems. For such system-​centred theorists, assessments of the legitimacy of law, including international law, can be made in a piecemeal fashion, whereby some norms or institutions might be legitimate while others are not, leading to a mixed overall assessment.45 I  believe that the inter-​institutional view is a better complement to or better highlights the piecemeal nature of the legitimacy of international law, but I will not pursue that argument here. In a second respect, there is also no dispute between the inter-​institutional view and the system-​centred view regarding the need for consistency and resolution of conflicts of norms across different regimes of international law. Here I fully agree with Pauwelyn that trade norms ought to give way to norms of environmental and human rights law in cases of conflict, because of the relative importance of environmental and human rights values. Suppose, however, that there is nothing to choose between the answers given by either the inter-​institutional view or the system-​centred view to questions about the legitimacy and consistency of sources of international law as these exist and interact across various regimes. There is nonetheless a third respect in which the inter-​ institutional view is, I believe, superior to the system-​centred view. Recall that, on the system-​centred view, to believe that a legal system exists is to accept the view that the law of some domain (and so its legal system) claims and enjoys supremacy over and independence from other normative orders. Within individual States, such claims might, of course, be entirely understandable and politically justifiable, under the presumption that the law of the State is meant to govern supremely and comprehensively within the State. But, when thinking about the relationship between States and international law, there is a significant political obstacle in conceiving   For fuller discussions of the idea of legitimacy in thinking about international law, see ­chapter 31 by Detlef von Daniels, ­chapter 32 by Nicole Roughan, ­chapter 33 by Richard Collins, and ­chapter 34 by José Luis Martí in this volume. My own understanding of legitimacy is closest to Roughan’s. 45  See John Tasioulas, ‘Human Rights, Legitimacy, and International Law’, American Journal of Jurisprudence 58 (2013): 1–​25, 14–​15. 44

602    sources and the systematicity of international law of international law as a supreme, independent, and comprehensive legal system, for such a conception clashes in no uncertain terms with the deep commitment to sovereignty asserted by States.46 If it is possible to conceive of the sources of international law in a way which does not rely on the ideas of supremacy and independence, then it might become easier, i.e., politically more feasible, for States to understand and accept their relationships with international law. This is not to say, of course, that we should invent whatever conceptual view of law will best serve our moral and political purposes. This is a rather dangerous strategy, but in any event, it is not the way the argument for the inter-​institutional view works. The inter-​ institutional view depends on its merits as a social fact explanation of the reality of the interaction between institutions, norms, and sources of law. But since political possibilities and visions depend to a certain extent on one’s conceptual framework (the wrong conceptual framework can narrow our political vision or blind us to certain political possibilities), we have more than enough reason to explore alternative conceptual explanations.

VII. Conclusion Naturally, the ultimate viability of the inter-​institutional view is to be measured in terms of its descriptive-​explanatory power, not just in the context of inter-​regime relationships in public international law, but across a truly wide range of contexts and issues in international law. It is also to be compared to, or at least balanced against system-​based explanations. This is important to remember. I am not suggesting that there is no value left in thinking about international law through the lens of legal system (in its several senses), only that we ought not to think about international law solely in terms of legal system. The concept of legal system has occupied a central role in legal theory, and has delivered many insights. In the context of theorizing the sources of international law, however, the concept of legal system has tended to have a rather polarizing, and to that extent, counter-​productive effect, as we have seen above. The sources of international law, and international law more generally, might not be of the nature that makes the concept of legal system or systematicity appropriate in all respects. For this reason, alternative conceptual schemes ought to be considered.

46  Consider, e.g., the well-​known reactions by constitutional courts and other institutions of Member States of the European Union (EU) to the supremacy claims made for EU law by the Court of Justice of the European Union.

michael giudice   603

Research Questions • In what ways is the idea of systematicity a reliable guide to thinking about the sources of international law? • Is the idea of a system of international sources of law best understood as a judicial norm of interpretation, akin to the values of consistency, completeness, or coherence?

Selected Bibliography Aspremont, Jean d’, Formalism and the Sources of International Law. A  Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). Crawford, James, The Creation of States in International Law, 2nd edn (Oxford:  Oxford University Press, 2006). Culver, Keith, and Michael Giudice, Legality’s Borders (Oxford:  Oxford University Press, 2010). Hart, H. L. A., The Concept of Law, 3rd edn (Oxford: Oxford University Press, 2012). Kelsen, Hans, Pure Theory of Law, trans. Max Knight, 2nd edn (Berkeley:  University of California Press, 1967). Lauterpacht, Hersch, The Function of Law in the International Community (Oxford: Clarendon Press, 1933). MacCormick, Neil, Questioning Sovereignty (Oxford: Oxford University Press, 1999). Pauwelyn, Joost, Conflict of Norms in Public International Law (Cambridge:  Cambridge University Press, 2003). Waldron, Jeremy, ‘International Law: A “Relatively Small and Unimportant” Part of Jurisprudence?’, in Luís Duarte D’Almeida, James Edwards, and Andrea Dolcetti, eds, Reading H. L. A Hart’s The Concept of Law (Oxford: Hart, 2013), 209–​23.

Chapter 28

SOURCES AND THE SYSTEMATICITY OF INTERNATIONAL LAW A CO-​C ONSTITUTIVE RELATIONSHIP?

Gleider I. Hernández*

I. Introduction One long-​held article of faith of the international legal discipline is that the object of our engagement, international law, exists and operates as a fully fledged legal system, on a par with municipal legal systems. The Enlightenment ideal of legal systems, the structure and operation of which can be observed in a detached, scientific manner, has emerged as a sort of totem, an aspiration for international lawyers seeking to affirm the relevance of international law on the global plane. As such, international law’s systematicity has traditionally been presumed to be an article of faith, asserted as logically necessary but only in passing, before moving on to one’s substantive *  The author is grateful for the valuable research assistance and proofreading of Dr Giedre Jokubauskaite.

gleider i. hernández   605 argument.1 Perhaps due to our underlying anxieties about international law’s fragility, its systematicity is regarded as essentially axiomatic, as though it would be ‘hard not to think about international law in a way that doesn’t invoke some idea of structure or system’.2 The Hague Academy Lectures, the zenith of many international law professors’ careers, are replete with such thinking, with significant general courses focusing on a grand unity of the international legal system.3 Three examples of the elision between unity and systematicity are particularly striking. In the 1980s, Georges Abi-​Saab had put forward a strongly functionalist conception of international law’s systematicity: ‘dès qu’il existe une différentiation de fonctions ou de catégories [de normes internationales], cela implique nécessairement qu’elles sont reliées ou articulées d’une certaine manière les unes par rapport aux autres, qu’il existe une structure ou une architecture qui sous-​tend et qui se dégage de cette articulation particulière des normes’.4 In the 1990s, Karl Zemanek drew a distinction between the concept of an ‘international legal system’ from that of an ‘international legal order’. Whilst the former term refers to the existence of a body of legal rules structured as a proper system, the concept of a ‘legal order’ is broader, presupposing the existence of a social basis (in application of the maxim ubi societas, ubi jus), legal subjects, and certain basic, if decentralized, functions.5 The point is simple: whether an international legal order or system, international law is

1   See e.g., Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994), p. 1: ‘[i]‌nternational law is not rules . . . [i]t is a normative system’; it is a ‘system’ that secures a ‘desirable degree of societal order’; Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford: Oxford University Press, 2003), pp. 84–​104; Anthony A. D’Amato, ‘International Law as an Autopoietic System’, in Rüdiger Wolfrum and Volker Röben, eds, Developments of International Law in Treaty-​Making (Berlin: Springer, 2005), pp. 335–​400. 2   Matthew Craven, ‘Unity, Diversity, and the Fragmentation of International Law’, Finnish Yearbook of International Law 14 (2003): 3–​34, 6. 3   See e.g., Pierre-​Marie Dupuy, L’unité de l’ordre juridique international, vol. 297, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2002), pp. 1–​489. 4   Georges Abi-​Saab, Cours général de droit international public, vol. 207, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1987), pp. 9–​463, 106. 5  See Karl Zemanek, The Legal Foundations of the International System:  General Course on Public International Law, vol. 266, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1997), 1–​335, 29–​42. Paul Reuter, Principes de droit international public, vol. 103, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1961), 425–​652, 460, suggested that ‘a legal order’, a body of rules ‘mises en ordre’, was more of an ‘effort’ rather than a ‘point de départ’. See also Bin Cheng, ‘Custom: The Future of General State Practice in a Divided World’, in Ronald St J. MacDonald and Douglas M. Johnston, eds, The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Leiden: Martinus Nijhoff, 1983), 513–​54, 516, 519–​20, who suggested that the ‘international legal order’ was in fact ‘the structure which results from the existence and operation of the international legal system’. See also Pierre-​Marie Dupuy, ‘The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice’, NYU Journal of International Law and Politics 31 (1999): 791–​807, 793: ‘[a]‌“legal order” may be defined as a system of norms binding on determined subjects which trigger some pre-​established consequences when the subjects breach their obligations’ . . . ‘the existence of the international legal order should not be challenged’.

606    sources and the systematicity of international law organized into a structure which possesses systemic qualities, at least in ‘methodological or analytical’ terms.6 Finally, in this present decade, James Crawford rejected the categorization of international law as ‘merely a miscellany of primary rules’, contending that international law’s systematicity is established ‘as a function of a social process between States and other persons—​a key aspect of the structuring of human relations beyond the State’.7 He describes it as a fully autonomous legal system with a recognizable form, a form based in ‘common fundamental ideas’: the basic constructs of personality, sources, treaties, interpretation, and responsibility.8 Perhaps one need not concern oneself unduly with international law’s purported systematicity: as Joseph Raz has suggested, the term ‘legal system’ is not a technical term, but instead, it is a way of informing thinking about how law works,9 or conceiving of ‘intricate webs of interconnected laws’,10 a sufficient volume of conventional and customary law, ‘moderated by common rules of interpretation’,11 that suffices to fit the appellation of ‘legal system’.12 This pragmatism is echoed by Martti Koskenniemi: ‘[i]‌t is often said that law is a “system”. By this no more need be meant than that the various decisions, rules, and principles of which the law consists do not appear randomly related to each other.’13 Nevertheless, once one ventures beyond the basic proposition that a legal order such as international law constitutes  Anastasios Gourgounis, ‘General/​ Particular International Law and Primary/​ Secondary Rules:  Unitary Terminology of a Fragmented System’, European Journal of International Law 22 (2011): 993–​1026, 998. 7   James Crawford, Chance, Order, Change: The Course of International Law (The Hague: Brill, 2014), ch. 6 (‘International Law as a System’), p. 138. See also James Crawford, ‘International Law as an Open System’, in James Crawford, International Law as an Open System: Selected Essays (London: Cameron May, 2002), preface and p. 28: it suffices to regard ‘international law in the modern period as providing a formal structure, based on sovereignty, negotiation and consensus, on which we are building in a variety of ways’. 8  Crawford, Chance, Order, Change, p. 146, citing to James Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford: Oxford University Press, 2012), p. 16. In a wry moment, Crawford concedes that the international legal system is a superstructure, ‘but only in the Marxist sense that all law is a superstructure’. 9   See Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979), pp. 78–​9. 10   Joseph Raz, The Concept of a Legal System (Oxford: Clarendon Press, 1970), p. 183. 11  Crawford Chance, Order, Change, p. 140. 12   See also Hugh Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), p. 2: a ‘working definition’ of law as ‘a system of precepts governing relations between a defined groups or entities (the “subjects” of law)’; or Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th edn (London: Routledge, 1997), p. 6, defining international law as a ‘system of law designed primarily for the external relations of states [which] does not work like any internal legal system of a state’; Shabtai Rosenne, The Perplexities of Modern International Law: General Course on Public International Law, vol. 291, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2001), 1–​471, 40: ‘international law is a comprehensive and sophisticated legal system that, despite its voluntarist basis, operates exclusively in the international political environment where the principal actors are sovereign independent States’. 13   ILC, Report of the Study Group of the International Law Commission on the Fragmentation of International Law, finalized by Martti Koskenniemi, 13 April 2006, UN Doc. A/​CN.4/​L.682, paras 27, 39. See also ILC, Report on the Work of its Fifty-​Second Session (1 May–​9 June and 10 July–​18 August 6

gleider i. hernández   607 a legal system, inevitably questions arise as to what precisely makes it a system; the kind of system that it is; and whether there are wider implications to asserting the systematic nature of international law. It is in response to these wider questions that contestable notions such as theories of normative hierarchy,14 a (more-​or-​ less) complete set of secondary rules,15 or the more controversial ‘globally shared’ or communitarian values and interests,16 have been used to justify international law’s systematic character, but perhaps again more in the line of assertion rather than reasoned justification. There exists a rich vein of contemporary scholarship calling for an epistemologically and socially richer depiction of international legal structures. The two editors of this Handbook have considered the concept, with Samantha Besson calling for new thinking about international law through the prism of the rule of law and democratic theorizing,17 and Jean d’Aspremont calling for a theory of international law rooted in social practices.18 Maksymilian Del Mar has questioned whether international law’s systematicity might be rooted alternately in a set of normative ‘system values’.19 In a recent contribution, Mario Prost has challenged the very use of the term ‘system’, suggesting its misuse ‘in a highly indeterminate and unstable manner which invokes both formalism and substance, legal reasoning and values, axioms and social facts’.20 These are fascinating and enduring questions for international legal scholarship. However, this contribution will be decidedly more modest in its scope, and will 2000), UN Doc. A/​55/​10, ‘Risks ensuing from the Fragmentation of International Law’ (Gerhard Hafner), p.  143:  whatever international law’s lack of comprehensive structure, it can at least be described as an ‘unorganized system’. 14   Mireille Delmas-​Marty, Trois défis pour un droit mondial (Paris: Seuil, 1998), p. 104: unity is an inherent characteristic of law (‘[l]‌e droit a l’horreur du multiple. Sa vocation c’est l’ordre unifié et hiérarchisé, unifié parce que hiérarchisé. Et l’image qui vient à l’esprit des juristes, c’est la pyramide des normes, construite pour l’éternité, plutôt que celle des nuages, fussent-​ils ordonnés.’). 15   H. L. A. Hart, The Concept of Law, 3rd edn (Oxford: Oxford University Press, 2012), ch. V, pp. 91–​3. 16   See e.g., Dupuy, L’unité; Christian Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century, vol. 281, Collected Courses of the Hague Academy of International Law (Leiden:  Brill/​Nijhoff, 1999), 9–​436; Antonio Cassese, ‘A Plea for a Global Community Grounded in a Core of Human Rights’, in Cassese, ed., Realizing Utopia:  The Future of International Law (Oxford: Oxford University Press, 2012), 136–​46. 17   Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–​85. 18   Jean d’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’, British Yearbook of International Law 84 (2014): 103–​30; Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). 19   See e.g., Maksymilian Del Mar, ‘System Values and Understanding Legal Language’, Leiden Journal of International Law 21 (2008): 29–​61, 30: ‘No picture of legal work—​no matter how socially and epistemologically rich—​is ever purely descriptive. On the contrary, such a picture is always informed by what the theorist understands and promotes as the functions of legal work.’ 20  For an excellent recent survey on this point, see Mario Prost, ‘System’, in Jean d’Aspremont and Sahib Singh, eds, Concepts for International Law—​ Contributions to Disciplinary Thoughts (Cheltenham: Edward Elgar, 2017) (forthcoming).

608    sources and the systematicity of international law focus on the relationship between systematicity theory and the doctrine of international legal sources, a crucial and necessary element in any wider theorizing on the systemic qualities of international law. Though I  agree with Michael Giudice that the concept of legal system, as pressed into service from a domestic law mould, sits uneasily with the complexity of international law,21 perhaps the problem also sits with the conceit that the concept of ‘legal system’ remains in its quintessence fixated with the domestic legal form, rather than understanding the domestic legal form as being a mere expression of a more complex concept. This was H. L. A. Hart’s own Achilles’ heel in relation to international law, and an understanding of systematicity which does not start and end with the domestic legal paradigm is a necessary departure. What is more, I disagree with Giudice’s view that the concepts of legal system and legal sources are wholly separable;22 instead, I take the view that legal systematicity and the sources of law are mutually productive concepts:  they are co-​constitutive. As such, I wish to illuminate the role that sources doctrine plays in construing international law as a system. I propose to study the recursive relationship between sources doctrine and debates over international law’s systematicity (what in German is often referred to as ‘System-​denken’), which have coloured international law scholarship for centuries and continue to influence it today. I argue that sources doctrine is a part of such System-​denken; it reinforces and buttresses international law’s claim to constitute a legal system, and that the legal system demands and requires that legal sources exist within it. My argument is that it is in fact this recursivity which creates a form of normative closure which itself constitutes the legal system. Next, I explore the necessary role of individuals and institutions, and in particular the role of officials, in perpetuating that relationship. This should indicate that international law’s systematicity and any doctrine of international legal sources are in a mutually constitutive relationship, privileging unity, coherence, and the existence of a unifying inner logic which transcends mere interstate relations and serves to constitute a functioning system, buttressed by the work of its officials. These officials in turn depend on the toolbox of sources available to them through Article 38, which depends in turn on its use and application by legal officials, in particular judicial institutions. An interesting case study in this respect is the necessary interventions of legal agents in advancing customary international law. I conclude with a few observations about the mutually productive relationship between officials, sources doctrine, and the systematic nature of international law.

  See chapter by 27 by Michael Giudice in this volume.   See ­chapter 27 by Michael Giudice in this volume: legal sources are ‘those social practices and institutions which have come to be recognized as social practices and institutions which create law. So, to ask about a source of law is not, on this understanding, to ask what inspirations or motivations explain the existence and content of particular legal rules, but rather, it is to ask about where in society we are to find particular legal rules in the first place.’ 21

22

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II.  Conceiving of International Law as a System Conceptualizing international law as a system, though appearing axiomatic today, is in fact a rather recent phenomenon, emerging at the same time as the emergence of Enlightenment thought in legal scholarship and practice throughout the nineteenth century. Such System-​denken has proven enduring within international legal scholarship. In this section, I propose briefly to examine both the crystallization of depicting international law as a legal system, and the lasting effects of this vision to the present day.

1. The Enduring Notion of Systematicity: A Nineteenth-​Century Construction The nineteenth century represented the decisive culmination of a centuries-​long move away from naturalist theorizing about international law, embracing new methods and, most significantly, an epistemology centred on observation, induction, and a distinct new emphasis on utilitarian logic.23 International lawyers at that point began to conceive of international law as a socially constructed object, a set of practices, doctrines, and rules with properties amenable to objective investigation. One of the particularly influential traditions which has contributed to the debate on international law’s systematic character has been that of Germany.24 Though the emphasis on ‘rationality, systematic coherence, logical consistency, building on first principles, obsession with taxonomy, abstractness, precision and clarity of concepts that characterizes German legal culture’ plays somewhat to stereotypes,25 nineteenth-​and twentieth-​century debates by German-​trained legal scholars were both striking and influential in their ruminations on the systematic qualities of international law.26 From Georg Friedrich von Martens, August Heffter, and Johann 23   See Stephen C. Neff, Justice among Nations: A History of International Law (Cambridge: Cambridge University Press, 2014), ch. III, where he chronicles the decisive shift to positivism. See also, generally, Martti Koskenniemi, The Gentle Civilizer of Nations (Cambridge: Cambridge University Press, 2005), for the consequences of such a move for the international legal profession. 24   See Eyal Benvenisti, ‘The Conception of International Law as a System’, German Yearbook of International Law 50 (2008): 393–​405, 394. 25   Stefan Vogenauer, ‘An Empire of Light? Learning and Lawmaking in Germany Today’, Oxford Journal of Legal Studies 26 (2006): 627–​63, 657. 26   On the notion of System-​denken as a central contribution of the German heritage of international law, see Martti Koskenniemi, ‘Between Coordination and Constitution: International Law as a German Discipline’, Redescriptions—​Yearbook of Political Thought, Conceptual History and Feminist Theory 15

610    sources and the systematicity of international law Kaspar Bluntschili, extending also to German-​speaking émigrés such as Francis Lieber, Lassa Oppenheim, Georg Schwarzenberger, and Hans Kelsen,27 an emphasis has remained on a coherent system of laws, one which can rationally resolve potential conflicts and outcomes and through which the system can maintain and protect itself. That systemic ideal from the Germanic tradition has endured through various strands of mainstream international legal scholarship, particularly within Europe. Though obviously other European traditions, in particular the British and the French, have diverged in respect of other foundational questions, they have not necessarily called into question the depiction of international law as a system.28 For all this, it is true that thinking about international law as a system has not been universal: the formal differences between international law and municipal legal orders have also led to emphatic denials of international law’s systematic qualities.29 In the twentieth century, there have been new challenges, for example, the American critique of European formalism,30 or what d’Aspremont has witheringly termed the ‘culture of non-​order called “pluralism” which makes no claim on the systematization of international law’.31 Nevertheless, as section 2 below demonstrates, systematicity as a concept endures in portrayals of international law. (2011): 45–​70, who refers, in particular, to the work of Lassa Oppenheim, ‘The Science of International Law: Its Task and Method’, American Journal of International Law (1908): 313–​56; Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts (Tübingen:  J. C.  B. Mohr, 1920); Alfred Verdross, Die Einheit des Rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung (Tübingen: J. C. B. Mohr, 1923); Hersch Lauterpacht, The Function of Law in the International Community (Oxford: Clarendon Press, 1933). 27   Benvenisti, ‘The Conception of International Law’, p.  395; see also Martti Koskenniemi, ‘Into Positivism: Georg Friedrich von Martens (1756–​1821) and the Origins of Modern International Law’, Constellations 15 (2008):  189–​207; and Armin von Bogdandy, ‘Constitutionalism in International Law: Comment on a Proposal from Germany’, Harvard Journal of International Law 47 (2006): 223–​42. 28   This is perhaps due, in the British international law tradition at least, to the outsized influence of Oppenheim and Lauterpacht. To take one classic example, the last edition of Robert Y. Jennings and Arthur Watts, eds, Oppenheim’s International Law, 9th edn (Harlow: Longman, 1992), vol. 1, p. 12, contends that the working of international law suggests that as a system of laws it is ‘complete’. ‘Completeness’ is a term strongly redolent of Lauterpacht’s own writing: see Hersch Lauterpacht, The Function of Law, especially pp. 66 ff. I have written extensively on the essential judicial role in the purported completeness of the international legal system; see Gleider I. Hernández, The International Court of Justice and the Judicial Function (Oxford: Oxford University Press, 2014), ch. VIII. 29   See e.g., John Austin, The Province of Jurisprudence Determined (London:  John Murray, 1832), who denied the existence of international law qua law because it did not emanate from a single, global sovereign; Georg Wilhelm Friedrich Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood (Cambridge: Cambridge University Press, 1991), para. 330: ‘the relationship between states is a relationship of independent units which make mutual stipulations but at the same time stand above these stipulations’. 30   Duncan Kennedy, ‘The Hermeneutic of Suspicion in Contemporary American Legal Thought’, Law and Critique 25 (2014): 91–​139, 92. 31   D’Aspremont, ‘The Idea of “Rules” ’, p. 6, referring to Neil Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative Orders’, International Journal of Constitutional Law 6 (2006): 373–​96, 391.

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2. The Enduring Appeal of System-​Denken in International Law Thought The brief historical excursion aimed to demonstrate the long historical pedigree of conceiving of international law as a system. But conceiving international law as a system is not relevant merely to recounting an intellectual history of our discipline. In constructing international law as a self-​standing, closed legal order, systematization represented a strategic positioning of international law: ‘systematizing became a project to save international law from politics and to affirm the presence of law in inter-​state relations’.32 Perhaps for this reason, the portrayal of international law as a system, encompassing a set of stable and identifiable laws, concepts, and procedures, and existing independently from its social and political context, remains the dominant position. For example, Article 15 of the Statute of the International Law Commission (ILC) refers that institution to the ‘systematization of rules of international law’,33 which in practice has been understood as a task of classification and codification within a single frame;34 a task the ILC, amongst others, took seriously when it intervened in the widespread fragmentation debates of the first decade of the twenty-​first century.35 The ILC, in framing its Report on Fragmentation, explained that it understood the task of legal reasoning to constitute a quintessentially ‘purposive activity’, intended to establish how the ‘systemic relationship between the various decisions, rules and principles should be conceived’.36 Specifically with respect to the act of legal interpretation, it ‘builds systemic relationships between rules and principles by envisaging them as part of some human effort or purpose’; such ‘systemic thinking penetrates all legal reasoning, including the practice of law-​ application by judges and administrators’.37 Though the ILC indicated that a certain pragmatism was at times necessary (‘[i]‌n conditions of social complexity, it is

  Prost, ‘System’.   Statute of the International Law Commission (ILC Statute), UNGA Res. 174 (II) (21 November 1947), as amended, Art. 15. 34   See Craven, ‘Unity’, p. 11, who emphasizes the codificatory aspects of the ILC’s practice. 35  ILC, Fragmentation Report. See also Bruno Simma and Dirk Pulkowski, ‘Of Planets and the Universe:  Self-​Contained Regimes in International Law’, European Journal of International Law 17 (2006): 483–​529, 499; Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention’, International and Comparative Law Quarterly 54 (2005): 279–​320. 36   ILC Fragmentation Report, paras 34, 33, referring to Hart, Ronald Dworkin, and Neil McCormick in this regard. At para. 34, it continues by emphasizing that legal reasoning is not a ‘mechanic application of apparently random rules, decisions or behavioural patterns’ but ‘the operation of a whole that is directed toward some human objective’. 37   ibid., para. 35. This is redolent of Dupuy’s reliance (L’unité, p. 39) on ‘l’utilisation des mêmes règles secondaires, de reconnaissance, de production et de jugement’ to reproduce the formal unity of the international legal system. This is hardly a novel argument, but recurs regularly, as The Hague Lectures of Zemanek, Abi-​Saab, and Crawford above demonstrate. 32 33

612    sources and the systematicity of international law pointless to insist on formal unity’),38 from the outset of the Report, its reasoning belied an enduring faith in the legal form. In its own words: law that would fail to articulate the experienced differences between fact-​situations or between the interests or values that appear relevant in particular problem-​areas would seem altogether unacceptable, utopian and authoritarian simultaneously.39

It is evident from the ILC’s framing of the fragmentation debate that it adopted a conceptual structure for the international legal system which was essentially relational, privileging systemic unity and the resolution of internal conflicts between legal principles. Coherence, it concluded, was a ‘formal and abstract virtue’, connected with the aims of ‘predictability and legal security’.40 As it expressly declared, the real debate was on ‘the wealth of techniques in the traditional law for dealing with tension or conflicts between legal principles . . . [which] seek to establish meaningful relationships between such rules and principles . . . ’ .41 If systematicity is understood thus, it is a concept that serves to privilege the harmonization, or ‘surface coherence’,42 of international law. As section III: Conceiving of the International Legal System: The Role of Sources will demonstrate, sources theory enjoys pride of place in such a conception of systematicity, both providing the techniques or tools through which an actor can intervene to ensure the system’s coherence, and vesting that actor with the requisite legitimacy in the eyes of other key actors.

III.  Conceiving of the International Legal System: The Role of Sources It is now that I turn to the thrust of my argument: the place of sources in conceiving of international law as a system. There are three prongs to my analysis covered in this section: first, illuminating the co-​constitutive relationship between sources doctrine and systematizing international law; secondly, understanding the role of legal officials or agents within sources doctrine as embedded in Article 38; and finally, to argue that within this concept of systematicity, the social practices of legal officials are not merely facilitative, but a necessary feature of the system itself. Section IV: Concluding Remarks, which uncovers this mutually productive relationship between sources, officials, and systematicity, illustrates their inter-​ operation within the process of forming customary international law.   ILC Fragmentation Report, para. 16.    39 ibid.   40  ibid., para. 491.  ibid., para. 18.   42  Del Mar, ‘System Values’, p. 37.

38 41

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1. The Co-​Constitutive Relationship between Sources and Systematicity For some time, to conceive of a system of law has been regarded as conceiving of a system of inter-​related rules of a legal character, in varying degrees. In its modern form, at least in the English-​speaking world, there is no doubt that such thinking about legal systems derives from the classic union of primary and secondary rules in Hart’s The Concept of Law. But why tread such well-​worn ground, especially in the light of trenchant criticism?43 There are in fact several compelling reasons, not least the pervasive view, even today, that the sources of international law constitute a set of rules.44 First, the Hartian union of rules firmly embeds the systematic character of a legal system in the existence and the union of his duty-​imposing rules of conduct (primary rules) and standards and procedures according to which the primary rules are ascertained, introduced, interpreted, and terminated and the fact of their violation determined (secondary rules).45 In turn, these rules derive their validity from Hart’s famous ‘rule of recognition’: ‘[t]‌o say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system’.46 Because the rule of recognition is the only source for all other rules in a legal system,47 and a legal system requires that rule in order to ascertain the existence of all other rules,48 one sees an interesting elision in respect of the rule of recognition: it is simultaneously the source of all other valid rules and a necessary condition for identifying the existence of a legal system.49 43   See e.g., Jason Beckett, ‘The Hartian Tradition in International Law’, Jurisprudence 5 (2008): 51–​83; Gerald J. Postema, A Treatise of Legal Philosophy and General Jurisprudence (Dordrecht: Springer, 2011), pp. 298–​99, pointing to the imprecision of Hart’s writing style on this crucial distinction; and Fleur Johns, Non-​Legality in International Law: Unruly Law (Cambridge: Cambridge University Press, 2013), p. 8: the primary–​secondary distinction resting in the ‘tendency to try to confer upon international law some delimited time, space and subject matter for its “proper” (albeit not autonomous) operation’. 44  See e.g., ILC, First Report on Formation and Evidence of Customary International Law by Michael Wood, Special Rapporteur, 17 May 2013, UN Doc. A/​CN.4/​663, para. 38: ‘as in any legal system, there must in public international law be rules for identifying the sources of the law. These can be found for present purposes by examining in particular how States and courts set about the task of identifying the law.’ See also International Law Association, Final Report of the Committee on Formation of Customary (General) International Law, ILA London Conference (2000), para 6: ‘the Committee considered that the rules about the sources of international law, and specifically this source, are to be found in the practice of States’. 45  Hart, The Concept of Law, pp. 214, 232. See generally chs V–​VI, where his concept of legal system is most fully elaborated. 46   ibid., p. 100. For a useful summary, see ­chapter 27 by Michael Giudice in this volume. 47 48  Hart, The Concept of Law, p. 93.   ibid., pp. 107–​8. 49   It was precisely for this reason that in The Concept of Law, p. 236, Hart denied the systemic character of international law: ‘there is no basic rule providing general criteria of validity for the rules of international law. . . . The rules which are in fact operative constitute not a system but a set of rules, among which are the rules providing for the binding force of treaties.’ See Besson, ‘Theorizing the

614    sources and the systematicity of international law If that is true, sources and the very existence of a legal system are in a co-​ constitutive relationship, one requiring the other for its existence; as Joseph Raz has argued, in every legal system there must exist a rule of recognition, though that rule of recognition need not encompass all the criteria of validity of that legal system.50 If the rule of recognition is a necessary condition for the existence of a legal system, such a rule is one of relevance, serving ultimately for the identification of a finite enumeration of sources. As Besson has put it, any conceptual analysis of sources as secondary rules rests on that rule of recognition, which is required both to assess the validity of all rules within the system and to ascertain the existence of the legal system itself.51 Redolent of Kelsen’s Grundnorm, if there is a single rule of recognition, that so-​called ‘source of sources’ will not itself be legal.52

2. The Socially Constructed Status of Article 38 This brings us to the particular question of the status of Article 38 of the Statute of the International Court of Justice (ICJ) within the international legal system, and its place as an authoritative enumeration of the sources of international law.53 It must be recalled from the outset that, formally at least, Article 38 is not the source of authority of the sources of international law, but rather, an instruction to the ICJ as to which sources of law it may apply: what Jörg Kammerhofer calls its lex arbitri.54 It has been wryly observed by d’Aspremont that international law scholarship has with great pains avoided any sustained analysis as to the ‘source of sources’, preferring instead a ‘rule-​based approach’ to sources which eschews theoretical rumination on foundational questions about the international legal system.55 Sources’, p.  178, characterizing Hart’s position as ‘largely obsolete’, contending that there are a great many secondary rules in treaty and customary international law. 50  Raz, The Concept of a Legal System, p. 809: ‘[a]‌criterion of validity is a set of conditions set by law, satisfaction of which is sufficient for being a law of the system’. 51   Besson ‘Theorizing the Sources’, p. 180. 52   ibid., pp. 180–​1. It should be noted, however, that you need not have only one rule of recognition; a legal system may have several such rules without discomfort: see Raz, The Concept of a Legal System, pp. 810–​11. Several chapters in this volume consider the rule of recognition in more depth: see in particular ­chapter 15 by David Lefkowitz, ­chapter 16 by Jörg Kammerhofer, ­chapter 17 by Jean d’Aspremont, ­chapter 18 by Frederick Schauer, and ­chapter 27 by Michael Giudice. 53  Statute of the International Court of Justice (ICJ Statute) (San Francisco, 26 June 1945, 33 UNTS 993). 54   Jörg Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (Abingdon: Routledge, 2011), pp. 207–​10. 55   D’Aspremont, ‘The Idea of “Rules” ’, p. 109. See also Jean d’Aspremont, ‘The International Court of Justice and the Irony of System Design’, Journal of International Dispute Settlement (2016), p. 20, where he makes the same point—​and suggests that what it also does is allow international lawyers to view their system as ‘strictly legal’, thus dispensing with any further social/​theoretical enquiries regarding their system.

gleider i. hernández   615 For all this, questions remain about the authority or status of Article 38. Surely, it cannot merely derive its authority by virtue of the widespread ratification of Article 38 by States; that would reduce it to nothing more than the customary evolution of a treaty provision.56 And yet, the enumeration contained in Article 38 is widely accepted both in practice and within mainstream international legal scholarship as a complete, general statement on the sources of international law.57 The editors of this Handbook have both questioned such faith on Article 38, with d’Aspremont complaining that such treatment has elevated Article 38 wrongly, as ‘a sort of constitutional rule about the rules of international law’,58 and Besson maintaining that acceptance and practice by States is insufficient for establishing its validity as the ‘source of sources’, with something more being required.59 That missing quality would be, it would seem, found within the social practices which constitute the system itself.

3. The Necessary Social Practice of Legal Officials An important recent argument highlighting the mechanisms of system construction in international law is d’Aspremont’s ‘social theory’ of sources, which grounds the validity of sources in the practice of law-​applying authorities, not the will of States in fixed and static rules. His model does not negate the role of States; after all, States’ bureaucracies and especially their ministries of foreign affairs are manned by international lawyers. Within such a theory of sources, law-​ascertainment criteria necessarily evolve in line with social practice, thus accommodating to the practice of such law-​applying authorities and moving, when relevant, beyond the ‘banner’ of Article 38 of the ICJ Statute. But whose social practice is relevant? D’Aspremont’s thesis rests on an argument that the sources of international law are better understood as a set of ‘communitarian constraints’,60 used by the ‘epistemic’ or ‘interpretive’ community of international lawyers which shares a language of communication and an internalized   On this point, see ibid., p. 17: a key problem with a rule-​based approach to sources is that it presupposes that the making of primary and secondary rules is the same process. 57  See e.g., Patrick Dailler, Matthias Forteau, Nguyen Quoc Dinh, and Alain Pellet, Droit International Public, 8th edn (Paris: LGDJ, 2009), pp. 1003–​4; Malcolm N. Shaw, International Law, 7th edn (Cambridge: Cambridge University Press, 2014), 50; James Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford: Oxford University Press, 2012), p. 5; Alain Pellet, ‘Article 38’, in Andreas Zimmermann, Karin Oellers-​Frahm, Christian Tomuschat, and Christian J. Tams, eds, The Statute of the International Court of Justice. A Commentary, 2nd edn (Oxford: Oxford University Press, 2012), 731–​870, 745–​7; Alan Boyle and Christine Chinkin, The Making of International Law (Oxford: Oxford University Press, 2006), p. 262. 58  D’Aspremont, ‘The Idea of “Rules” ’, p.  111. He continues:  ‘[c]‌onstruing article 38 as a meta-​ provision on sources of international law has further contributed to the prevalence of the idea of ruleness of the sources of international law’. 59   Besson, ‘Theorizing the Sources’, p. 181. 60   D’Aspremont, ‘The Idea of “Rules” ’, p. 123. I have also argued in favour of viewing the body of international lawyers in academic, practice, activism, and other vocations as an epistemic or interpretive 56

616    sources and the systematicity of international law system of principles which defines and constrains the type of legal arguments accepted as valid.61 This is a normative move, one which puts the law-​applying authorities—​an amorphous concept at best in Hart’s own social thesis—​at the forefront of any international legal system: international law’s systematicity is derived from social practice, and the interpretative practices of law-​applying officials become constitutive of the existence of the legal system itself.62 Koskenniemi would seem to agree: ‘[e]‌very rule needs, for its application, an auctoritatis interpositio that determines what the rule should mean for a particular case, and whether, all things considered, it is right to apply it or perhaps have recourse to the exception’.63 Such a construction, he maintains, would allow for the distillation of the ‘mind set’ of the international legal professional, through a critical understanding of the intervention of law-​applying officials. Koskenniemi’s argument returns us once again to Hart’s theory on systematicity as a theory of legal systems rooted in social fact. Hart’s concept of a legal system requires there to exist specific social practices, in particular the existence of legal officials who act to safeguard the existence and continued relevance of that system. Within most legal systems, that role falls naturally to law-​applying agencies, those entrusted with the application and interpretation of primary rules. It is worth recalling that Hart refers unsystematically to the practice of courts, legislatures, officials, or private citizens. However, a careful reading reveals that the only behaviour which is necessary for the existence of a legal system is that of the ‘officials’ of the system—​his law-​applying officials as embodied, quintessentially, in the office of the judge, whom are empowered specifically to decide on what is legal, and to distinguish the legal from the extra-​legal.64 The process and problems of designating or community: see Gleider I. Hernández, ‘The Responsibility of the International Legal Academic: Situating the Grammarian in the “Invisible College” ’, in Jean d’Aspremont, Tarcisio Gazzini, André Nollkaemper, and Wouter Warner, eds, International Law as a Profession (Cambridge: Cambridge University Press, 2017), 160–​88. For a different view, see Matthias Goldmann, ‘Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority’, German Law Journal 9 (2008): 1865–​1908, 1879–​81, arguing that the ‘international public authority’ approach, by encompassing the standard-​setting and normative approach of international public institutions instead can serve to harmonize existing sources doctrine with the realities of international law-​making. 61   The canonical texts on such communities include Stanley Fish, Is There a Text in this Class? The Authority of Interpretive Communities (Cambridge: Harvard University Press, 1980), p. 5; see also Owen Fiss, ‘Objectivity and Interpretation’, Stanford Law Review 34 (1982): 739–​63; and Emanuel Adler, Communitarian International Relations: The Epistemic Foundations of International Relations (New York: Routledge, 2005), p. 15; and Peter M. Haas, ‘Introduction: Epistemic Communities and International Policy Coordination’, International Organization 46 (1992): 1–​35. 62   D’Aspremont, ‘The Idea of “Rules” ’, p.  117. For the blurring of the distinction between citizens and officials, see d’Aspremont, Formalism, pp. 209–​13, and Mario Prost, The Concept of Unity in Public International Law (Oxford: Hart, 2012), p. 128. 63  Martti Koskenniemi, ‘Constitutionalism as a Mindset:  Reflection on Kantian Themes about International Law and Globalisation’, Theoretical Inquiries in Law 8 (2007): 9–​36, 9–​10. 64  Hart, The Concept of Law, ch. V, as confirmed in H. L. A. Hart, ‘Kelsen’s Doctrine of the Unity of Law’, in Howard E. Kiefer and Milton K. Munitz, eds, Ethics and Social Justice (Albany: State University of New York Press, 1970), 171–​99.

gleider i. hernández   617 identifying the international legal system’s ‘legal officials’ has already been explored by Richard Collins,65 and will not be further explored here. However, there is much to be said about the argument that the foundation of the international legal system is not its primary and secondary rules, but on its sources and their treatment by designated legal officials, as a specific subset of the epistemic community of international lawyers. Sources emerge as a necessary condition for the existence of a legal system: the validity of any rule derives not from its source, but instead, within the framework—​the system—​which establishes their social foundations. As David Kennedy has pointed out, this is itself a normative move: [i]‌n order to fulfil the desire for an autonomous system of normative sources, argument about the sources of international law, like sources doctrine itself, includes strands associated both with normative autonomy and normative authority. Sources argument is interesting both because it pursues a rhetorical strategy of inclusion and because it manages the relations between these two rhetorical strands so as to ‘solve’ the problem of sources discourse as a whole.66

The intimate, symbiotic relationship linking the sources of a legal system with those officials or agents entrusted with their application indicates the social and institutional dimensions of a legal system, transcending merely form. Sources doctrine plays an important part in endowing or designating actors with their part within the system, not least because legal sources represent the tools with which such officials can discharge their role. The corollaries flowing from my claim above are not merely in relation to systematicity, but also to the resilient character of the system and its capacity to endure change. As Eyal Benvenisti has suggested, ‘[t]‌he systemic or constitutional conception of international law supplies relatively independent bureaucracies and judiciaries with doctrines that enable them to expand their authority while maintaining coherence and consistency through broad interpretation of treaties and the development of customary international law’.67 In this regard, the very act of designating organs or officials to take note of what the law is constitutes an implicit authorization of courts (and as a logical corollary, other duly authorized law-​applying agents) to develop international law beyond the intention of States. Distilled to its essence, and perhaps a further avenue of research would be opened on this point, the system has begun to acquire an autopoeitic quality of self-​reproduction, in the sense propounded by Niklas Luhmann.68 In fact, one could go as far as does Anthony  Richard Collins, ‘The Problematic Concept of the International Legal Official’, Transnational Legal Theory 6 (2015): 608–​34, and see generally Richard Collins, The Institutional Problem in Modern International Law (Oxford: Hart, 2016). 66   David Kennedy, ‘The Sources of International Law’, American University Journal of Law and Policy 2 (1987): 1–​96, 23. 67   Benvenisti, ‘The Conception of International Law’, p. 397. 68   Niklas Luhmann, Social Systems (Stanford: Stanford University Press, 1995), pp. 35, 167; see also Niklas Luhmann, A Sociological Theory of Law, trans. Elizabeth King-​Utz and Martin Albrow, 2nd 65

618    sources and the systematicity of international law D’Amato, who suggested that this quality of self-​perpetuation is ‘recursively linked’ to the existence of the system itself, lending it a ‘purposive dimension’ of self-​organization of disparate interacting elements: in essence, self-​perpetuation is one of the main purposes of the existence of the system itself.69 The circle between officials, sources, and the legal system itself is, on this point, squared.

4. The Recognition of Customary International Law by Systemic Officials A neat illustration of the co-​constitutive relationship between sources and officials within the international legal system is encapsulated in the ascertainment of customary international law. There are two specific mechanisms worth identifying here. First, the identification of heretofore-​unrecognized rules of customary international law is, as a matter of social reality, often left to international courts and tribunals, the formal imprimatur of which is regarded as validating, even if it in a declaratory sense.70 Their determination and systematization of what constitutes relevant or irrelevant practice vests them with an important validating role, as well as considerable discretion to do so. Nowhere is this more apparent than when the ICJ makes a pronouncement stating that a legal standard is part of customary international law; the mainstream view both in scholarship and in practice remains that such a finding will be determinative of the question.71 This is the case even despite the Court’s rather taciturn and solipsistic treatment of customary law, frequently declaring rules to be valid customary law without acknowledging relevant material practice.72 But if anything, such a practice in engaging with law’s sources without edn (London:  Routledge, 2014), p.  81. See further Gunther Teubner, Law as an Autopoietic System (Oxford: Blackwell, 1993); and Luhmann, ‘The Coding of the Legal System’, in Gunther Teubner and Alberto Febbrajo, eds, State, Law and Economy as Autopoietic Systems: Regulation and Autonomy in a New Perspective (Milan: Giuffrè, 1992), 145–​68.   D’Amato, ‘International Law as an Autopoeitic System’, p. 338.  Hersch Lauterpacht, The Development of International Law by the International Court (London: Stevens & Sons, 1958), p. 368: ‘[i]‌n few matters do judicial discretion and freedom of judicial appreciation manifest themselves more conspicuously than in determining the existence of customary international law’. See also Iain Scobbie, ‘The Theorist as Judge: Hersch Lauterpacht’s Concept of the International Judicial Function’, European Journal of International Law 8 (1997): 264–​98. 71   See generally Christian J. Tams and James Sloan, eds, The Development of International Law by the International Court of Justice (Oxford: Oxford University Press, 2013); Antonio Cassese, ‘The International Court of Justice: It is High Time to Restyle the Respected Old Lady’, in Cassese, ed., Realizing Utopia, 239–​49, 240. For a more developed form of this argument, see Gleider I. Hernández, The International Court of Justice and the Judicial Function (Oxford: Oxford University Press, 2014), pp. 91–​3. 72  See e.g., Theodor Meron, ‘Revival of Customary International Law’, American Journal of International Law 99 (2005): 817–​34, 819: ‘[n]‌otably absent from many of these cases . . . is a detailed discussion of the evidence that has traditionally supported the establishment of the relevant rules 69 70

gleider i. hernández   619 the need for justification, would seem to bolster judicial authority, reinforcing its normative, content-​independent authority as a law-​interpretive actor within the system that is international law.73 A second illustration can be framed through Anthea Roberts’ ‘reflective interpretative concept’ of custom, which demonstrates the mutually productive relation between those who claim the authority to apply the law and the construction of the international legal system. Roberts posits that judicial institutions can deploy a ‘dimension of fit’ in their reasoning process.74 Through this criterion, she brings in what is in effect a Dworkinian, or possibly Rawlsian, notion for reconciling plausible interpretations of custom based on a purposive approach to international law. Roberts’ ‘dimension of fit’, it is asserted, allows for the devising of guidelines to reconcile practice and principles over time, allowing reconciliation to occur at specific points and taking account of the fluidity of the system. As she claims, again in terms strongly redolent of Ronald Dworkin, ‘[t]‌he best interpretation is the one that makes the practice appear in the best light, judged according to the substantive aspirations of the legal system’.75 If Roberts’ interactional theory holds, the relation between legal source, an official’s claim to authority, and the systemic qualities of the legal system has never been clearer. But the question inevitably arises as to the standard against which an assessment of custom is fitted. Here, Roberts has little to say, invoking in passing a ‘dimension of substance’ to suggest that a coherent explanation can draw from extra-​ legal sources ranging from lex ferenda to ethics and morality, to resolve a choice between two plausible explanations.76 It is true that she raises a distinction between ‘facilitative’ rules, which merely facilitate coexistence and cooperation, and those in the ‘middle of the spectrum’, which in addition involve moral considerations, such as environmental duties to prevent transboundary harm.77 Again, however, these examples do not entirely settle the question; are these systemic values which serve to define and to constitute international law, or wider values which extend beyond the legal system itself? That hint of values may be grounded in the ideal of law as a normative order, linking the quality of law-​making processes through which we identify valid legal norms—​in essence, secondary sources—​to the requirements

as law’. It must be said that at times, the Court fares better: in Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) [2012] ICJ Rep 99, the ICJ did consider and assess a large swathe of practice which had been submitted by the parties.   See Hernández, Judicial Function, ch. VI.  See Anthea Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’, American Journal of International Law 95 (2001): 757–​91, 774–​5. 75  ibid., p.  771 (emphasis added), drawing extensively from Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986). But as Thirlway would point out in The Sources, ch. III, those aspirations identified by the observer, perhaps as a privileged member of the international law epistemic community, also exist in the opinio juris of States themselves. 76 77   Roberts, ‘Traditional and Modern Approaches’, p. 781.   ibid., p. 782. 73

74

620    sources and the systematicity of international law associated with the ‘rule of law’: clarity, publicity, certainty, equality, transparency, and fairness.78 However, that evergreen question as to whether there is a moral or value-​laden basis remains highly contested, both from the mainstream positivist and from critical legal perspectives, and though a fuller treatment of such objections is beyond the scope of this work, it should suffice to point out that the conferral of such discretion on a law-​applier itself privileges a choice of values.

IV.  Concluding Remarks I have suggested that sources doctrine is a necessary component to conceiving of international law as a system; these form the set of tools with which systemic officials can intervene to safeguard, perpetuate, and develop the international legal system. Again, that relationship is co-​constitutive: sources, system, and officials all require one another to exist. In Giudice’s accompanying chapter, he put forward an alternative, ‘inter-​institutional’ conception of legal system, looking beyond the domestic legal form as the archetype, which seeks in a bottom-​up manner to locate international law in the practices of existing institutions (and not merely courts) and their relations with one another.79 Surely a renewed focus on the interaction between institutions, norms, and sources within the international legal system, as they operate in reality, is to be welcomed, not least because it departs from analysing international law through a domestic law lens. But I do not think that thinking about international law’s systematicity presupposes that ‘on the system-​centred view, to believe that a legal system exists is to accept the view that the law of some domain (and so its legal system) claims and enjoys supremacy over and independence from other normative orders.’80 Contemporary thinking about social systems and legal systems has moved far beyond the modernist, opaque ideal of an autonomous, self-​standing system. Though certainly an inter-​institutional account has some purchase in its emphasis on social practice, it is perhaps unduly formal in its emphasis on systemic autonomy. Instead, I would suggest that to conceive of international law as a system is to accept the co-​constitutive relationship between the legal form (in terms of sources and rules) and the social practices of law-​creating 78   Besson, ‘Theorizing the Sources’, p. 172, drawing from Nigel E. Simmonds, ‘Law as a Moral Ideal’, University of Toronto Law Journal 55 (2005) 61–​92; Jeremy Waldron, ‘The Concept and the Rule of Law’, Georgia Law Review 43 (2008): 1–​61. At ‘Theorizing the Sources’, p. 173, Besson does concede that when States act as law-​makers, they act not only as subjects of international law, but also as its officials, to a degree conceding the social thesis as well. 79   See ­chapter 27 by Michael Giudice in this volume.    80 ibid.

gleider i. hernández   621 actors, law-​applying officials, and the subjects of the system. Though clearly such an approach represents a necessary departure from the notion of legal system as nothing more, and nothing less, than a body of valid and binding rules, one might hope that it will allow international lawyers to reflect on—​and challenge—​our basic assumptions about the nature and function of the international legal system, and the social dynamics which sustain and generate the system. In so doing, perhaps we can at last reconcile our position within the system as that of professional actors whose political agendas colour and contribute actively to the formation of the legal system, and take seriously Koskenniemi’s exhortation for a more reflective, politically aware stance in our engagement with the substance of international law itself.81

Research Questions • If international law is a socially constructed system, to which actors ought one to look in order to understand the processes and forms through which the system is constructed and maintained? • Is the concept of system in international legal thinking rooted in foundational concepts relating to the very nature of law and legal systems, or is it in fact historically contingent, culturally contingent, or related to the distribution of power in the international society?

Selected Bibliography Abi-​Saab, Georges, Cours général de droit international public, vol. 207, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1987), 9–​463. Crawford, James, Chance, Order, Change: The Course of International Law (The Hague: Brill, 2014), ch. 6. D’Amato, Anthony A., ‘International Law as an Autopoietic System’, in Rüdiger Wolfrum and Volker Röben, eds, Developments of International Law in Treaty-​Making (Berlin: Springer, 2005), 335–​400.   Of many contributions, see especially the Epilogue in Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) (reissue with a new epilogue), especially p.  607, containing an exhortation to use our professional competences to understand, expose, and unmask the structural biases inherent in the international legal system itself. 81

622    sources and the systematicity of international law Aspremont, Jean d’, Formalism and the Sources of International Law. A  Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). Dupuy, Pierre-​Marie, L’unité de l’ordre juridique international, vol. 297, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2002), 1–​489. Hart, H. L. A., The Concept of Law, 3rd edn (Oxford: Oxford University Press, 2012). ILC, Report of the Study Group of the International Law Commission on the Fragmentation of International Law, finalized by Martti Koskenniemi, 13 April 2006, UN Doc. A/​CN.4/​L.682. Prost, Mario, The Concept of Unity in Public International Law (Oxford: Hart, 2012). Teubner, Gunther, Law as an Autopoietic System (Oxford: Blackwell, 1993). Zemanek, Karl, The Legal Foundations of the International System: General Course on Public International Law, vol. 266, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1997), 1–​335.

Section  XV

SOURCES AND THE HIERARCHY OF INTERNATIONAL LAW

Chapter 29

SOURCES AND THE HIERARCHY OF INTERNATIONAL LAW THE PLACE OF PEREMPTORY NORMS AND ARTICLE 103 OF THE UN CHARTER WITHIN THE SOURCES OF INTERNATIONAL LAW

Erika De Wet*

I. Introduction In domestic legal systems, some norms are of a constitutional nature, thereby stemming from a source that is hierarchically superior to others and would always prevail in situations of conflict with norms stemming from subordinate sources.1 These *  This work is based on the research supported by the South African Research Chairs Initiative of the Department of Science and Technology and National Research Foundation of South Africa (Grant No 98338). 1   In this contribution, the term norm refers to binding rights and obligations. See Erika de Wet and Jure Vidmar, ‘Conflicts between International Paradigms: Hierarchy versus Systemic Integration’, Global Constitutionalism 2 (2013): 196–​217, 197.

626    sources and the hierarchy of international law superior sources are underpinned by the value system of a certain constitutional polity.2 The current contribution questions whether there is also a hierarchy among the sources of international law and if so, whether such a hierarchy is important for resolving conflicts between obligations stemming from different sources.3 Would certain sources of international law have constitutional features in the sense that rights and/​or obligations stemming from these sources would consistently prevail over conflicting rights and obligations stemming from other sources? If so, would this imply that these sources reflect the fundamental values of the international legal order?4 The contribution thus addresses hierarchy between sources from a functional perspective in the sense that it examines the practical implications of such a hierarchy.5 Mainstream thinking in international law does not attribute a hierarchy to the sources listed in Article 38 (1) of the Statute of the International Court of Justice (ICJ), which remain the focal point for determining the rights and obligations of States by international dispute resolution bodies.6 For example, leading textbooks note that this Article does not contain any explicit reference to a formal hierarchy; that is a hierarchy based on the form in which the particular source is moulded.7 In fact, a provision proposed during the drafting process in accordance with which the ICJ had to apply the sources in the order in which they were listed in Article 38, was rejected.8

2   See Dinah Shelton, ‘Normative Hierarchy in International Law’, American Journal of International Law 100 (2006): 291–​323; Hans Kelsen, General Theory of Law and State (New York: Russell and Russell, 1961), p. 115. 3   Erika de Wet and Jure Vidmar, eds, Hierarchy in International Law: The Place of Human Rights (Oxford: Oxford University Press, 2012), pp. 2–​3. 4   For an overview of the debate, see inter alia, Erika de Wet, ‘The Constitutionalization of Public International Law’, in Michel Rosenfeld and Andras Sajo, eds, The Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012), pp. 2109–​30; Jan Klabbers, Anne Peters, and Geir Ulfstein, The Constitutionalization of International Law (Oxford: Oxford University Press, 2009). 5   See ­chapter 30 by Mario Prost in this volume for an analysis of informal hierarchies. 6   Article 38 (1) of the Statute of the International Court of Justice (ICJ Statute) (San Francisco, 24 October 1945, 33 UNTS 993) determines as follows: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59 judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 7   Hugh Thirlway, ‘The Sources of International Law’, in Malcolm Evans, ed., International Law (Oxford:  Oxford University Press, 2010), 95–​121, 97; James Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford: Oxford University Press, 2012), p. 21. 8   Thirlway, ‘Sources of International Law’, p. 114.

erika de wet   627 At the same time, the order in which the sources are mentioned is not entirely irrelevant, as treaties and custom are the most important sources in practice.9 The general principles of law referred to in Article 38 (1) (c) are secondary to treaties and custom in terms of practical relevance. The ‘general principles of law’ concern the legal norms which find a place in most of the municipal legal systems and would therefore be inherent to most legal systems.10 The drafters included the ‘general principles of law’ as a fall-​back source in those instances where neither a treaty nor a customary norm was applicable to the case at hand. The Permanent Court of International Justice (PCIJ) made infrequent reference to general principles of law,11 while the ICJ has thus far never relied on the ‘general principles of law’ for resolving a dispute. Treaty and customary norms have provided a sufficient basis for its decisions.12 Similarly, judicial decisions and writings have a subsidiary function as a source. This is indicated by the fact that they are explicitly described in Article 38 (1) (d) as ‘subsidiary means’ for determining the law. They are nonetheless important for informing the interpretation of treaty and custom, as is also reflected by this author’s frequent reference to inter alia leading textbooks.13 Their authority would in part relate to the expertise of their authors, who are often also experienced practitioners, arbitrators, and/​or judges with first-​hand knowledge of international dispute settlement processes.14 More complex is the question if and to what extent the relationship between the sources referred to in Articles 38 (1) (a) and (b)—​treaties and custom—​is subjected to a hierarchy. Textbooks frequently note that the order of appearance in Article 38 (1) (a) and (b) is no indication of a hierarchy between them. After all, the same obligation is often found in both treaty and customary law and therefore exists side by side. A well-​known example is the prohibition of the use of force which is contained in Article 2 (4) of the United Nations Charter (UN Charter) as well as customary law.15  Crawford, Brownlie’s Principles of Public International Law, p. 22. See also Thirlway, ‘Sources of International Law’, p. 97. 10   Robert Y. Jennings and Arthur Watts, Oppenheim’s International Law, vol. 1, 9th edn (Oxford: Oxford University Press, 2008), p. 36. 11  See extensively Roman Kwiecień, ‘The Permanent Court of International Justice and the Constitutional Dimension of International Law: From Expectations to Reality’, in Christian Tams and Malgosia Fitzmaurice, eds, Legacies of the Permanent Court of International Justice (Leiden: Martinus Nijhoff, 2013), 361–​99, 385 ff. 12   Thirlway, ‘Sources of International Law’, p.  114; Jennings and Watts, Oppenheim’s International Law, pp. 37–​8. 13   Malcolm Shaw, International Law, 6th edn (Oxford: Oxford University Press, 2008), p. 123. 14   It is arguable that Art. 38 (1) (d) has evolved in practice to include also non-​binding international instruments known as soft law. For an analysis of soft law as a source of international law, see ­chapter 21 by Matthias Goldmann in this volume. 15   Charter of the United Nations (UN Charter) (San Francisco, 26 June 1945, 1 UNTS XVI). See inter alia Jennings and Watts, Oppenheim’s International Law, p. 26; Shaw, International Law, p. 124; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, 95; Crawford, Brownlie’s Principles of Public International Law, p. 23. 9

628    sources and the hierarchy of international law Moreover, textbooks on international law frequently suggest that any conflicts between treaty and customary obligations are resolvable by means of the traditional conflict rules that is lex specialis derogat legi generali and lex posterior derogat legi priori.16 These rules are not intended to attribute a superior status to any specific customary and/​or treaty obligation as such, and as a result they would always prevail over other obligations in cases of conflict. Instead, they are intended to provide ad hoc solutions to conflicts of norms stemming from treaty and/​or customary sources (or any combination thereof) in a manner that gives recognition to the specific case at hand. In this context, it is important to keep in mind that a norm conflict—​and by extension the conflict between the sources from which the norm stems—​can either be of a broad or narrow nature. A narrow conflict describes those situations where giving effect to one international right or obligation unavoidably leads to the breach of another obligation or right.17 A broad definition, on the other hand, refers to situations where compliance with a right or obligation under international law does not necessarily lead to a breach of one, but rather to a limitation of some or all the rights and/​or obligations at stake through interpretation.18 In relation to lex specialis, this would imply that where a treaty was specifically designed to replace or concretize a general customary obligation, one would have to interpret the customary principle in light of the treaty obligation if possible, or in case of incompatibility give precedence to the treaty principle.19 In the same vein, a treaty obligation may be interpreted in accordance with or displaced by a subsequent rule of customary international law in line with the lex posterior principle, where its effects are recognized in the subsequent conduct of the parties.20 This further implies that a treaty or customary obligation that prevails in one situation for being the lex specialis or having been adopted later in time, could subsequently find itself in a situation where it is displaced by another obligation which is even more  Shaw, International Law, p.  123; Thirlway, ‘Sources of International Law’, p.  113; See also International Law Commission (ILC), Report of the Study Group of the International Law Commission on the Fragmentation of International Law, finalized by Martti Koskenniemi, 13 April 2006, UN Doc. A/​CN.4/​L.682, para. 11, which referred to these principles as a standard technique of legal reasoning. 17   See Wilfred Jenks, ‘The Conflict of Law-​Making Treaties’, British Yearbook of International Law 30 (1953): 401–​53. 18   De Wet and Vidmar, ‘Conflicts between International Paradigms’, p. 197; Andreas Paulus and Johann Leiss, ‘Article 103’, in Bruno Simma, Daniel-​Erasmus Khan, Georg Nolte, and Andreas Paulus, eds, The Charter of the United Nations. A Commentary, vol. II, 3rd edn (Oxford: Oxford University Press, 2012), 2110–​37, 2118. They refer to the principle of systemic integration, also in Art. 31 (3) (c) of the Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331). Norms should be interpreted as far as possible in a way that allows for the maximum applicability of all. 19   See also Crawford, Brownlie’s Principles of Public International Law, p. 22; Thirlway, ‘Sources of International Law’, p. 114. 20   In accordance with Art. 30 (3) of the VCLT, this rule only applies where the parties to the latter treaty are identical to those of the former treaty. See also Crawford, Brownlie’s Principles of Public International Law, p. 23; Jennings and Watts, Oppenheim’s International Law, p. 26; Shaw, International Law, p. 124. 16

erika de wet   629 specific or later in time. This in turn indicates that one is not dealing with an obligation stemming from a source that is by its nature hierarchically superior to other sources, in the sense that it will always prevail in situations of conflict with norms stemming from other sources. However, closer scrutiny reveals that the lex specialis and lex posterior principles are rarely applied by national, regional, or international courts and tribunals when resolving conflicts between international obligations.21 This relates to the fact that in modern international law conflicts typically manifest themselves between obligations stemming from different specialized regimes (sub-​regimes) of international law and—​by implication—​between the sources within which these regimes are anchored. These conflicts arise particularly between human rights treaty obligations on the one hand and other sub-​regimes, on the other. While in practice, these other sub-​regimes are mostly treaty-​based (e.g., obligations pertaining to extradition and non-​refoulement; international peace and security; trade and investment; and environmental law), they can also be anchored in customary law (e.g., obligations pertaining to State immunity).22 It is difficult to see how the lex specialis rule could resolve conflicts of this nature. As indicated above, lex specialis implies that whenever two or more obligations deal with the same subject matter, priority should be given to the one that is more specific. However, this would only become relevant where one of the conflicting obligations indeed represented a lex generalis. Where the conflicting obligations all stem from different specialized treaty or customary-​based regimes within international law, one is in fact confronted with one lex specialis versus another.23 The lex posterior principle, as articulated in Article 30 of the Vienna Convention on the Law of Treaties of 1969 (VCLT), implies that when all the parties to a treaty are also parties to an earlier treaty on the same subject, the earlier one would only apply to the extent that its provisions are compatible with those of the later treaty.24 The applicability of this principle is, however, complicated by the fact that it remains unclear how it should apply to subsequent treaties that do not have identical parties.25 In addition, there remains disagreement as to what would constitute treaties ‘relating to the same subject-​matter’. If the principle is applied strictly, inter-​regime conflicts (and by implication between their respective sources) would fall outside the scope of the lex posterior principle.26 On the other hand, if the principle implied that treaties deal with the same subject matter when the fulfilment of the obligation   De Wet and Vidmar, ‘Conflicts between International Paradigms’, pp. 305–​6.   De Wet and Vidmar, Hierarchy in International Law, p. 5; De Wet and Vidmar, ‘Conflicts between International Paradigms’, p. 198. 23   ILC, Fragmentation Report, paras 129, 152; Andreas Ziegler and Bertram Boie, ‘The Relationship between International Trade Law and International Human Rights Law’, in De Wet and Vidmar, Hierarchy in International Law, 272–​99, 290. 24   Article 30 (1) of the VCLT; see also ILC, Fragmentation Report, paras 229–​30. 25 26   ILC, Fragmentation Report, para. 234.   ibid., para. 253. 21

22

630    sources and the hierarchy of international law under one treaty affected the fulfilment of the obligation under another, the lex posterior principle would be applicable.27 But even in these situations a straightforward prioritization on the basis of the chronological order is rare.28 The question thus arises how conflicts between international obligations stemming from different treaty and/​or customary regimes are to be resolved in the absence of any formal hierarchy between Article 38 (1) (a) and (b) of the ICJ Statute and given the limited utility of the principles of lex specialis and lex posterior. Specifically, one needs to consider whether such conflicts could be resolved through the acknowledgement of a substantive hierarchy of certain obligations. Stated differently, are there obligations or categories of obligations in international law which, due to their special content or nature, have acquired a superior standing and as a result they would prevail over other, conflicting international obligations? If so, does this elevate the specific category or sub-​regime of treaties and/​or custom from which these obligations stem to a hierarchically superior position vis-​à-​vis other sources of international law? The most prominent candidate in this respect concerns the concept of peremptory norms (jus cogens) as concretized in Article 53 VCLT. An additional possible instance of hierarchy follows from Article 103 of the UN Charter.

II.  The Relationship between Peremptory Norms and the Sources of International Law The concept of peremptory norms of international law (jus cogens) was developed particularly in the work of the International Law Commission (ILC) on the law of treaties,29 and afterwards transformed into positive law by the VCLT. As is well known, Article 53 of the VCLT reads as follows:30 A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of

27  ibid., para. 254; Riccardo Pavoni, ‘Human Rights and the Immunities of Foreign States and International Organizations’, in De Wet and Vidmar, eds, Hierarchy in International Law, 71–​113, 78. 28   ILC, Fragmentation Report, paras 254 and 272; Pavoni, ‘Human Rights and the Immunities of Foreign States’, pp. 78–​9. 29  Giorgio Gaja, The Protection of General Interests in the International Community, vol. 364, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2012), 9–​184, 47. 30   See Art. 53 of the VCLT.

erika de wet   631 general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

On top of that, Article 64 of the VCLT declares that ‘[if] a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates’.31 The notion of peremptory norms of international law thus developed within the treaty context for the purpose of treaty invalidation.32 However, it has subsequently been invoked and recognized beyond this context.33 In fact, it is in particular due to the invocation of the concept in other areas of international law that has resulted in the identification of a limited number of peremptory norms by judicial bodies and in doctrine.34 According to the ILC, the most frequently cited candidates for jus cogens status include: (a) the prohibition of aggressive use of force; (b) the right to self-​defence; (c) the prohibition of genocide; (d) the prohibition of torture; (e) crimes against humanity; (f) the prohibition of slavery and the slave trade; (g) the prohibition of piracy; (h) the prohibition of racial discrimination and apartheid, and (i) the prohibition of hostilities directed at civilian population (‘basic rules of international humanitarian law’).35

In this context, one must remember that Article 53 of the VCLT did not identify any norms having peremptory status. This relates to the fact that at the time of its adoption the concept was regarded with suspicion by some Western countries (notably France), while enjoying more support among the (then) socialist and newly independent States.36 Article 53 of the VCLT was thus negotiated to leave it to the ‘international community as a whole’ to identify those international law norms belonging to the category of jus cogens. This process of identification has led to much debate, also as to the category of sources to which peremptory norms would belong. According to one line of   See Alfred Verdross, ‘Forbidden Treaties in International Law’, American Journal of International Law 31 (1947): 571–​7, 571–​2. See also Alfred Verdross, ‘Jus Dispositivum and Jus Cogens in International Law’, American Journal of International Law 60 (1966): 55–​63, 55–​6. 32   See ­chapter 25 by Pierre d’Argent in this volume for an analysis of sources and the legality and validity of international law. 33   See extensively Gaja, ‘The Protection of General Interests’, p. 47 ff. See also Erika de Wet, ‘The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law’, European Journal of International Law 15 (2004): 97–​121, 98–​9. 34   Gaja, ‘The Protection of General Interests’, p. 52. 35  See ILC, Fragmentation Report, para. 374. See also ‘Draft Articles on the Responsibility of International Organizations:  Commentary on Art 26’, YILC (2011) vol. II, part  2, pp.  120–​1; ‘Draft Articles on the Responsibility of States for Internationally Wrongful Acts: Commentary on Article 40’, YILC (2001) vol. II, part 2, pp. 283–​4, paras 4–​6. 36   Eric Suy, ‘Article 53:  Treaties conflicting with a peremptory norm of general international law (“jus cogens”)’, in Oliver Corten and Pierre Klein, eds, The Vienna Conventions on the Law of Treaties. A Commentary, vol. II (Oxford: Oxford University Press, 2011), 1224–​33, 1225. See also Jure Vidmar, ‘Norm Conflicts and Hierarchy in International Law: Towards a Vertical International System?’, in De Wet and Vidmar, eds, Hierarchy in International Law, pp. 13–​41, 26. 31

632    sources and the hierarchy of international law reasoning, jus cogens obligations are not grounded within the law itself, but in metaphysical principles of justification.37 Peremptory obligations are regarded as a manifestation of the fundamental values of the international community, which exist independently from the will of States.38 These values are closely linked to human dignity and human rights and are described by some as constituting international public policy.39 In accordance with this line of reasoning, peremptory norms thus stem from a separate source that is hierarchically superior to other sources of international law and represent constitutional norms of the international legal order.40 Given the close link between human rights and the values underpinning peremptory norms, this would further imply that human rights treaties, as concretizations of pre-​existing constitutional rights, have a superior standing vis-​à-​vis other treaties (and treaty regimes).41 This reasoning, which is reminiscent of natural law thinking of the seventeenth century, is vulnerable to arbitrary conclusions as to what constitutes the underlying values of the international community.42 On the one hand, it is true that the purpose of invalidating (treaty) norms that conflict with jus cogens would be the protection of the most fundamental values of the international community. Peremptory norms therefore do represent constitutional values of the international community.43 On the other hand, attempts to determine norms representing these values independently from the will of States lead to arbitrary conclusions. It would then be left to international judges to identify and expand the category of jus cogens norms in accordance with their own perception of fundamental values.44   Gleider I. Hernández, ‘A Reluctant Guardian: The International Court of Justice and the Concept of “International Community” ’, British Yearbook of International Law 83 (2013): 13–​60, 38–​9. 38   ILC, Fragmentation Report, para. 361. 39   Moritz Baumgärtel, Dorothea Staes and Francisco J. Mena Parras, ‘Hierarchy, Coordination, or Conflict? Global Law Theories and the Question of Human Rights Integration’, 4 May 2014, p. 2,, accessed 26 May 2016. See extensively also Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford: Oxford University Press, 2006). 40   Baumgärtel et al., ‘Hierarchy, Coordination, or Conflict?’, p. 5; Michael Byers, ‘Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules’, Nordic Journal of International Law 66 (1997): 211–​39, 212, 223. 41   See the analysis by Stephen Baumgard, ‘Human Rights as International Constitutional Rights’, European Journal of International Law 19 (2008):  757–​75. See also the dissenting opinion of Judge Tanaka in the South-​West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Judgment, Second Phase) [1966] ICJ Rep 6, 298. 42   Gaja, ‘The Protection of General Interests’, pp. 53–​4. See also ILC, First Report on Jus Cogens by Dire Tladi, Special Rapporteur, 8 March 2016, A/​CN.4/​693, para. 52. 43   See Pierre-​Marie Dupuy, ‘Some Reflections on Contemporary International Law and the Appeal to Universal Values:  A  Response to Martti Koskenniemi’, European Journal of International Law 16 (2005): 131–​7, 133. 44  Gaja, ‘The Protection of General Interests’, p.  54. But see Antonio Cançado Trindade, ‘Jus Cogens:  The Determination and the Gradual Expansion of its Material Content in Contemporary International Case-​Law’, in XXXV Curso de Derecho Internacional Organizado por el Comité Juridico Interamericano—​2008 (Washington D.C.: Secretaria general de la OEA, 2011), who supports the role of judges in identifying and developing jus cogens. 37

erika de wet   633 The better view is that peremptory norms do not constitute a separate source of rights and obligations, but a specific category of customary international law. In order to acquire peremptory status, a norm first has to be recognized as customary international law, after which the international community of States as a whole further has to agree that it is a norm from which no derogation is permitted.45 Peremptory norms would therefore be subject to ‘double acceptance’ by the international community of States as a whole.46 The link between peremptory norms and customary international law is clearly depicted in Articles 53 and 64 of the VCLT, which refer four times to peremptory norms as a ‘norm of general international law’.47 Although the peremptory status of a specific norm does not require its acceptance as such among all States, the threshold for gaining peremptory status is high, as it requires at least the acceptance of a large majority of States. The fact that complete consensus among States is not a requirement for the emergence of a peremptory norm further implies that the (very small number of) States not in agreement can nonetheless be bound against their will by peremptory obligation.48 For example, the claim of South Africa’s government that it was a persistent objector to the prohibition of racial discrimination and apartheid was universally rejected with the argument that peremptory law does not exempt persistent objectors.49 In the case of a peremptory norm, the will of an individual State can be overruled by the collective will, underpinned by the fundamental values of the international community of States.50 On the whole, State consent nonetheless remains highly relevant, as States participate in and consent to the customary process by means of which peremptory norms come about.51 An overview of case law reveals that the concept of jus cogens has gained recognition with international and domestic judicial bodies since the late 1990s.52 Even so, very few judgments have applied peremptory norms as a mechanism for the 45   Shelton, ‘Normative Hierarchy in International Law’, pp. 300, 314–​15. It is, of course, possible that a norm of jus cogens finds its way into a treaty, as is the case with most of the obligations on the ILC’s list referred to above. She also explains that non-​derogability as such is not decisive for whether a norm qualifies as peremptory. 46   Vidmar, ‘Norm Conflicts and Hierarchy’, p. 25. 47   Gaja, ‘The Protection of General Interests’, pp.  54–​5. At the time of writing, the ILC Special Rapporteur on jus cogens had not expressed views on whether customary law constitutes the basis of peremptory norms, as he planned to deal with this issue in his second report due in 2017. ILC, First Report on Jus Cogens, paras 53, 75. 48   Vidmar, ‘Norm Conflicts and Hierarchy’, p. 26. 49   Byers, ‘Conceptualising the Relationship’, p. 222. 50   See Shelton, ‘Normative Hierarchy in International Law’, p. 299. 51   See Byers, ‘Conceptualising the Relationship’, pp.  225–​6, 228. He also notes that jus cogens is sometimes referred to as general principles of law, i.e. those principles common to most national legal orders. However, as national laws often also reflect concretizations of customary international law, general principles of law and custom would often overlap. 52   See extensively De Wet and Vidmar, Hierarchy in International Law.

634    sources and the hierarchy of international law resolution of conflicts between obligations stemming from different sources of international law. This applies equally to conflicts between treaty obligations and conflicts between treaty and customary obligations. 53 The ICJ for its part referred explicitly to jus cogens in a majority decision for the first time in the year 2006.54 Since then, it has on occasion reaffirmed the concept.55 However, in all these instances the recognition of the concept was essentially rhetorical (symbolic) and was not decisive for the case at issue.56 Instead, the ICJ prefers to rely on technical and narrowly tailored grounds for answering questions before it.57 Specifically, the ICJ did not accept that the jus cogens status of an obligation in and of itself provides jurisdiction before it, nor does it have any other ‘automatic’ effect. The question whether the ICJ has jurisdiction instead depends on whether the relevant States have accepted the ICJ’s jurisdiction as provided for in Article 36 of the ICJ Statute. The fact that a violation of a peremptory obligation is at issue does not in and of itself compensate for the absence of such consent.58 Moreover, most ICJ judges do not (yet) seem to be convinced that (the human rights values underpinning) peremptory norms would weigh heavier than procedural barriers under international law that regulate admissibility and jurisdiction.59

  Vidmar, ‘Norm Conflicts and Hierarchy’, pp. 14–​15.  See Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep 6, 32. Earlier decisions do, however, contain implicit references to peremptory norms. See inter alia Military and Paramilitary Activities in and against Nicaragua, para. 190. 55  See notably Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43; Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) [2012] ICJ Rep 99, 141, para. 95. 56   Hernández, ‘A Reluctant Guardian’, pp. 30 ff. 57  Geoffrey Gordon, ‘Innate Cosmopolitan Dialectics at the ICJ:  Changing Perceptions of International Community, the Role of the Court, and the Legacy of Judge Álvarez’, Leiden Journal of International Law 27 (2014): 309–​30, 326. 58  See also Jure Vidmar, ‘Rethinking Jus Cogens after Germany v.  Italy:  Back to Article 53?’, Netherlands International Law Review 60 (2013): 1–​25, 14 ff. 59  ICJ, Jurisdictional Immunities of the State, paras 92–​5; ICJ, Armed Activities on the Territory of the Congo, paras 64, 125; see also Hernández, ‘A Reluctant Guardian’, p. 55; Stefan Talmon, ‘Jus Cogens after Germany v. Italy: Substantive and Procedural Rules Distinguished’, Leiden Journal of International Law 25 (2012): 979–​1002, 987 ff. Exceptions can be found in domestic court decisions, but also remain few and far apart. See notably Ferrini v Germany, No. 5044/​04, Rivista di diritto internazionale 87 (2004): 539, ILDC 19 (IT 2004), 128 ILR 659 (11 March 2004), which ultimately led to Jurisdictional Immunities of the State. The Italian court gave significant weight to the values underpinning jus cogens obligations and the need for enforcing these values effectively, resulting in immunity being lifted. The same argument was inherent in the minority decision in the Al-​Adsani decision of the ECtHR. ECtHR, Al-​Adsani v United Kingdom (appl. no.  35763/​97), Judgment (Grand Chamber), 21 November 2001, Reports 2001-​XI, Joint Dissenting Opinion of Judges Rozakis and Caflisch, Joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić; as well as the dissenting opinions of Judges Cançado Trindade and Yusuf in Jurisdictional Immunities of the State. 53

54

erika de wet   635

III.  The Relationship between Article 103 of the UN Charter and the Sources of International Law Outside the area of jus cogens the main contender for claiming a hierarchically superior status in the international legal order would be obligations under the UN Charter. Article 103 determines that in the case of a conflict between obligations under the UN Charter and obligations for Member States under any other international agreement, their Charter obligations shall prevail. This can be interpreted as a source-​based hierarchy, since the precedence of Charter obligations stems from a treaty.60 Stated differently, by ratifying the UN Charter, States accepted that all obligations under the Charter—​including binding decisions of the United Nations Security Council (UNSC)—​would take priority over any other conflicting treaty obligation and therefore would be superior to them.61 Moreover, although Article 103 only refers to prevalence over conflicting treaty obligations, organizational and State practice confirm that UNSC obligations also take precedence over customary obligations.62 Not all authors agree that Article 103 establishes a source-​based hierarchy of norms. Some suggest that Article 103 rather constitutes a conflict rule, which merely results in setting aside a specific situation of irreconcilable conflict between a UN Charter obligation and other obligations from treaty and/​or customary sources.63 As discussed above, a conflict rule implies that the prevalence of a specific treaty or customary obligation depends on whether, in the circumstances of the case, it 60  See Marco Milanovic, ‘Norm Conflict in International Law:  Whither Human Rights?’, Duke Journal of Comparative and International Law 20 (2009): 69–​131, 78–​9; De Wet and Vidmar, ‘Conflicts between International Paradigms’, p. 206. 61   Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom and United States (Provisional Measures) [1992] ICJ Rep 114, 126, paras 39, 42; Paulus and Leiss, ‘Article 103’, p. 2124. 62   A concrete example includes the UNSC resolutions addressing piracy before the coast of Somalia and which were adopted under Chapter VII of the Charter. These resolutions inter alia permit States to pursue suspected pirates in the territorial waters of Somalia. This is a clear deviation from both treaty and customary norms pertaining to the law of the sea. See e.g., UNSC Res 1846 (2 December 2008), para. 10, which has most recently been extended by UNSC Res 2246 (10 November 2015), para. 14. But see Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures Against Wrongful Sanctions (Oxford: Oxford University Press, 2011), who argues that the UNSC cannot permit States to deviate from customary international law. See also Paulus and Leiss, ‘Article 103’, p. 2133. 63   ILC, Fragmentation Report, para. 335; Antonios Tzanakopoulos, ‘Collective Security and Human Rights’, in De Wet and Vidmar, Hierarchy in International Law, 42–​70, 66. See also Robert Kolb, who makes a similar argument, describing Article 103 as a ‘priority rule’; Robert Kolb, L’Article 103 de la Charte des Nations Unies, vol. 367, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2014), 9–​252, 9 ff.

636    sources and the hierarchy of international law indeed qualifies as lex specialis or lex posterior. However, in accordance with Article 103, Charter obligations should, as a general rule, set aside other, conflicting international obligations.64 This in turn implies that States have attributed a hierarchically superior status to Charter obligations through the inclusion of Article 103. The motivation for this hierarchy can be found in the importance which States attribute to the purposes of the United Nations, notably the maintenance of international peace and security, as well as its role in maintaining the unity of the international legal order.65 Judicial practice nonetheless reveals that Charter obligations do not always prevail in practice in cases of a norm conflict. The Kadi decisions of the Court of Justice of the European Union (CJEU),66 as well as the Nada and Al-​Dulimi decisions of the European Court of Human Rights (ECtHR) illustrate that the superiority of Charter obligations are only acceptable as long as the UNSC acts in accordance with what States (including judicial organs acting on their behalf) perceive to be the correct interpretation of the Charter.67 This rejection of a strong hierarchy of Charter obligations in practice may weaken the efficacy of the enforcement of UNSC sanctions, but also underscores that the UN Charter remains anchored within the law of treaties. States retain a decisive role in interpreting the (limits of the) scope of Charter obligations, including the supremacy clause in Article 103.68 The hierarchically superior position attributed to the UN Charter combined with its almost universal membership and stringent requirements for amendment, have led some authors to describe it as the constitution of international community.69 According to Articles 108 and 109 of the UN Charter, amendments come into force for all members when they have been adopted by a two-​thirds majority of the United Nations General Assembly and ratified by two-​thirds of the Member States, including the permanent members of the UNSC. Given the improbability of   See Paulus and Leiss, ‘Article 103’, pp. 2120, 2135, who underscore that the suspending effect only applies in case of irreconcilable conflict that could not be avoided through harmonious interpretation. 65   See e.g., Lord Bingham in R (on the application of Al-​Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent) [2007] UKHL 58 [2008]; 1 AC 332; ILDC 832 (UK 2007), para. 34; Paulus and Leiss, ‘Article 103’, p. 2136. 66  CJEU, Yassin Abdullah Kadi, Al Barakaat International Foundation v Council of the European Union, 3 September 2008, Cases C-​402/​05 P, and C-​415/​05, EU:C:2008:461; European Commission & the Council of the European Union v Yassin Abdullah Kadi, 18 July 2013, Cases C-​584/​10 P, C-​593/​10 P, and C-​595/​10 P, EU:C:2013:518. 67  ECtHR, Nada v Switzerland (appl. no. 10593/​08), Judgment (Grand Chamber), 12 September 2012, Reports 2012-​V, paras 180 ff; ECtHR, Al-​Dulimi and Montana Management Inc. v Switzerland (appl. no. 5809/​08), Judgment (Second Chamber), 26 November 2013 (case referred to the Grand Chamber which delivered judgment on 21 June 2016), paras 118 ff. In these instances (States represented by) the CJEU and ECtHR expected the UNSC to act in accordance with international human rights standards comparable to those maintained by the EU and the European Convention of Human Rights. 68   See also Paulus and Leiss, ‘Article 103’, pp. 2116, 2136. 69   See particularly Bardo Fassbender, ‘The United Nations Charter as Constitution of The International Community’, Columbia Journal of Transnational Law 36 (1998): 529–​619, 577 ff. 64

erika de wet   637 achieving such ratification by all permanent members, the UN Charter seems to be almost unamendable.70 However, these constitutional qualities (that is, high threshold for amendment) do not imply that the UN Charter is a source unto itself, divorced from the principles of treaty law. This becomes clear if one considers that the amendment procedures foreseen in the UN Charter has been complemented by amendments through State practice (informal amendment), which is a common feature of treaty law.71 An early example of amendment through practice was the general acceptance (in the form of acquiescence) by United Nations members of the UNSC practice in accordance with which the abstention by a permanent member does not prevent the adoption of a UNSC resolution.72 This practice effectively amounted to an amendment of the wording of Article 27 (3) of the UN Charter, which requires UNSC decisions to be taken by the ‘affirmative vote of nine members including the concurring votes of the permanent members’. A more recent example concerns Article 4 (h) of the Constitutive Act of the African Union (AU), according to which the AU can intervene militarily in any of its Member States in case of war crimes, genocide, and crimes against humanity. This right is articulated without reference to prior authorization by the UNSC, as explicitly required by Article 53 (1) of the UN Charter.73 Article 4 (h) can therefore also be interpreted as an attempt to amend the UN Charter by States through practice.

IV. Conclusion International law has developed as a horizontal system of rights and obligations without hierarchies amongst the sources of international law. Over time the international legal order has developed some hierarchical features, notably in the form of customary-​based jus cogens norms, as well as the treaty-​based Charter obligations due to Article 103. The shortlist of predominantly human rights obligations which   Fassbender, ‘The United Nations Charter as Constitution’, pp. 578 ff. For the only three amendments to date, see Georg Witschel, ‘Article 108’, in Simma et al., eds, The Charter of the United Nations, 2201–​31, 2217 ff. 71   Witschel, ‘Article 108’, p. 2204. 72   Legal Consequences for States of the Continued Presence of South Africa in Namibia (Southwest Africa) Notwithstanding Security Council Resolution 276 (Advisory Opinion) [1971] ICJ Rep 16, 22, para. 22; Witschel, ‘Article 108’, p.  2214. But see Fassbender, ‘The United Nations Charter as Constitution’, pp. 588–​9, who is reluctant to accept amendments to the Charter through State practice. 73   The Constitutive Act of the African Union (AU Constitutive Act) (Lomé, 11 July 2000),, accessed 30 March 2016. 70

638    sources and the hierarchy of international law have acquired jus cogens status represent the fundamental values underpinning the international legal order, while the obligations under the UN Charter represent the importance which States attribute to international peace and security. Closer scrutiny reveals, however, that the role of these hierarchies in the resolution of norm conflicts in international law remains limited. Moreover, as most peremptory norms concern human rights obligations, this also implies that human rights obligations as a sub-​category of international law (and by extension the human rights treaty regimes) have not yet gained a superior position vis-​à-​vis other treaty regimes. This in turn confirms that an international legal order based on human dignity is not yet a reality. Its contours, of which hierarchy amongst sources would constitute an important dimension, have emerged. However, for the time being these contours have not yet evolved into clear boundaries that demarcate the role of the different sources of international law in upholding human dignity as a fundamental value of the international community. Within an international legal order that is still rooted in States’ consent, the consensus required for this evolutionary process is still in the making.

Research Questions • Is there a functional hierarchy between the sources of international law? • Do peremptory norms and the Charter of the United Nations belong to the traditional sources of international law enumerated in Article 38 (1)  (c) of the ICJ Statute, or constitute separate sources?

Selected Bibliography Conklin, William, ‘The Peremptory Norms of the International Community’, European Journal of International Law 23 (2012): 837–​61. De Wet, Erika, ‘Jus Cogens and Obligations Erga Omnes’, in Dinah Shelton, ed., The Oxford Handbook of International Human Rights Law (Oxford: Oxford University Press, 2013), 541–​61. De Wet, Erika, and Jure Vidmar, eds, Hierarchy in International Law. The Place of Human Rights (Oxford: Oxford University Press, 2012). Dupuy, Pierre-​ Marie, ‘Some Reflections on Contemporary International Law and the Appeal to Universal Values:  A  Response to Martti Koskenniemi’, European Journal of International Law 16 (2005): 131–​7.

erika de wet   639 International Law Commission, First Report on Jus Cogens by Dire Tladi, Special Rapporteur, 8 March 2016, UN Doc. A/​CN.4/​693. International Law Commission, Report of the Study Group of the International Law Commission on the Fragmentation of International Law, finalized by Martti Koskenniemi, 13 April 2006, UN Doc. A/​CN.4/​L.682. Kolb, Robert, L’Article 103 de la Charte des Nations Unies, vol. 367, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2014), 9–​252. Koskenniemi, Martti, ‘International Law in Europe: Between Tradition and Renewal’, European Journal of International Law 16 (2005): 112–​24. Paulus, Andreas, and Johann Leiss, ‘Article 103’, in Bruno Simma, Daniel-​Erasmus Khan, Georg Nolte, and Andreas Paulus, eds, The Charter of the United Nations. A Commentary, 3rd edn, vol. II (Oxford: Oxford University Press, 2012), 2012–​223. Shelton, Dinah, ‘Normative Hierarchy in International Law’, American Journal of International Law 100 (2006): 291–​323. Talmon, Stefan, ‘Jus Cogens after Germany v.  Italy:  Substantive and Procedural Rules Distinguished’, Leiden Journal of International Law 25 (2012): 979–​1002.

Chapter 30

SOURCES AND THE HIERARCHY OF INTERNATIONAL LAW SOURCE PREFERENCES AND SCALES OF VALUES

Mario Prost

I. Introduction The discipline of international law, like all academic disciplines, is constructed around a set of accepted truths, intuitions, and histories. One of them is that the international legal order is fundamentally an anarchical order, not so much in the sense of it being chaotic and disorderly, but because it lacks a centralized and hierarchically structured law-​making and law-​enforcing authority.1 Domestic legal systems benefit from highly developed and sophisticated institutional machineries 1   This is anarchy as defined by Hedley Bull, i.e. a system of States that knows of no higher level of authority over States, and yet forms a society in which common rules and institutions provide elements of order. See Hedley Bull, The Anarchical Society—​A Study in World Politics, 2nd edn (New York: Columbia University Press, 1977).

mario prost   641 endowed with the power of legislation and lawful coercion. International law, by contrast, is thought to be a largely horizontal system of governance in which juridical authority and the exercise of key legal functions (law-​making, law determination, and law enforcement) are fragmented and decentralized.2 Horizontality—​or the lack of hierarchy—​is considered by most legal scholars a central fact of international life and the starting point for theorizing about international law. Nowhere is this more obvious, perhaps, than in the doctrine of sources. Conventional accounts of international law-​making depict an eclectic and uncoordinated system in which States—​as sovereign equals—​create rules for themselves through various techniques and processes which can be engaged simultaneously or in competition with one another, no process being intrinsically superior, normatively, to the other.3 No constitution prevailing over ordinary statutes, no statutory law superior to common law, no decisions of higher courts binding on the decisions of lower courts: sources of international law are said to be of equal rank and status, so that a norm derived from one source is not as a matter of principle of a higher value than a norm formed under another source. The concept of a formal, a priori hierarchy of sources is thus, on this view, alien to the structure of the international legal order.4 The functional equivalence of sources should not, however, obscure the fact that international legal thought and practice are replete with varied forms of hierarchies which, though not necessarily openly acknowledged as such, nevertheless run deep in the system and inform the ways in which international law is conceptualized, made, and applied. International law-​making processes, to start with, structurally favour some actors, voices, and experiences (e.g. States, great powers, white men, transnational capital, etc.) whilst marginalizing others (e.g. non-​State groups, small powers, brown women, labour, etc.). Despite a broad commitment to legislative equality, the international system accommodates, and indeed at times institutionalizes, inequalities in the making of international law. These material hierarchies of influence are not, of course, exclusive to international law. Law—​whether domestic or international—​is always the outcome of power struggles. In any legal system, powerful agents are subject to the law, but can mobilize their resources (material, 2   See e.g., Antonio Cassese, International Law, 2nd edn (Oxford: Oxford University Press, 2005), pp. 5–​6; Malcolm Shaw, International Law, 7th edn (Cambridge: Cambridge University Press, 2014), p. 4; Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th edn (London: Routledge, 1997), p. 3. 3  See Alan Boyle and Christine Chinkin, The Making of International Law (Oxford:  Oxford University Press, 2007), p. 100, who describe the system of sources as ‘eclectic, unsystematic, overlapping, and often poorly coordinated’. 4   See e.g., James Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford: Oxford University Press, 2012), p.  22; Mark Villiger, Customary International Law and Treaties—​A Study of their Interactions and Interrelations with Special Consideration of the 1969 Vienna Convention on the Law of Treaties (Dordrecht:  Martinus Nijhoff, 1985), p.  35; Michael Akehurst, ‘The Hierarchy of the Sources of International Law’, British Yearbook of International Law 47 (1975): 273–​86, 274–​5.

642    sources and the hierarchy of international law cultural, economic, and otherwise) to influence the legislative process and produce favourable outcomes. That there is no formal, pre-​determined hierarchy among recognized sources of international law in no way indicates, therefore, that the international system is a level playing field. In the international system, as in all legal systems in the world, dominant actors and social forces influence the law-​making process and the distributive consequences flowing from it.5 What I  want to argue here, however, is something slightly different, and perhaps less obvious, than the existence of material and distributive hierarchies among law-​making subjects. I want to take issue with the very premise that there exists no a priori hierarchy among recognized sources of international law. Whilst the international system may be broadly anarchical, the law of sources—​this chapter argues—​is nevertheless not immune to what may be called informal hierarchies of pre-​eminence. These informal hierarchies, as is examined below, stem from the fact that, whilst recognizing in theory the functional or formal equivalence of sources, legal actors (States, adjudicators, scholars) tend in practice to express preferences for particular sources, because these sources are thought to possess certain qualities or uphold certain values deemed desirable (e.g. determinacy, versatility, universality, and so on). These are, as shall become clear, soft and transient hierarchies that very much depend on contexts, circumstances, the identity of the legal subjects, and the projects they pursue. But these are hierarchies nonetheless, to the extent that they involve a differentiation of sources ‘in a normative light’, i.e. normative judgements in which some sources are deemed superior (good, effective, democratic) and others inferior (bad, inefficient, illegitimate).6 The following analysis is, by necessity, schematic and impressionistic. Due to space constraints, this chapter focuses on characteristic patterns of argument about sources and highlights two informal source hierarchies, leaving others to be examined elsewhere. For the same reason, two sets of questions have also been excluded at the outset from the chapter. The first concerns the hierarchy of norms question, i.e. the relationship between individual norms or bodies of norms by reason of their content, irrespective of their source. This problem is conceptually distinct from the hierarchy of sources and is addressed in ­chapter 29 by Erika de Wet in this volume.7 The second concerns the relationship between the so-​called traditional sources of  B. S. Chimni, ‘Legitimating the International Rule of Law’, in James Crawford and Martti Koskenniemi, eds, The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012), 290–​308, 298. 6   This broad understanding of hierarchy as ‘difference in a normative light’ is borrowed from Martti Koskenniemi, ‘Hierarchy in International Law:  A  Sketch’, European Journal of International Law 8 (1997): 566–​82. 7   The hierarchy of sources concern the relationship between law-​making processes in the abstract. By contrast, the hierarchy of norms concerns the differentiation between norms or bodies of norms according to their content/​substance, not their legal form. On the difference between the two types of hierarchies and how they can be mobilized to resolve normative conflicts in international law, see Joost Pauwelyn, Conflict of Norms in Public International Law—​How WTO Law Relates to Other Rules of International Law (Cambridge: Cambridge University Press, 2003), ch. 3. 5

mario prost   643 international law and new forms of law-​making ‘beyond the State’ by public and private transnational ‘governance bodies’.8 The main argument of this chapter is that the no-​hierarchy thesis—​which I examine in more depth below—​as well as being normatively problematic (in that it often serves to conceal or trivialize material hierarchies of influence, rendering them immune to critical scrutiny) is descriptively problematic. It doesn’t accurately reflect the highly differentiated nature of the doctrine of sources and is thus analytically inconsistent with the ‘real world’ of sources, a world that is replete with more or less formalized hierarchies of worth and status among law-​making processes.

II.  The Non-​Hierarchy Thesis This chapter is concerned with—​and seeks to offer important qualifications to—​a central tenet of the doctrine of sources, which I shall call the ‘no-​hierarchy thesis’. This thesis posits that sources of international law enjoy equal status as law-​making procedures and exist in no predetermined order of importance or preponderance. Before it is qualified, this view requires a brief explanation. Though its limitations are well known (the provision has been criticized as inadequate, incomplete, and outdated), Article 38 (1)  of the Statute of the International Court of Justice (ICJ) remains to this day the starting or rallying point for debates about international law-​making and is widely believed to express ‘the universal perception as to the enumeration of sources of international law’.9 Sources are listed in Article 38 in a specific sequence ((a) to (d)) in what looks, superficially, like a hierarchy.10 During the drafting of Article 38, it was suggested that the sources listed in the provision   For a general overview of the problems posed by the rising (and largely uncontrolled) regulatory power of global governance bodies, see Eyal Benvenisti, The Law of Global Governance (The Hague: Hague Academy of International Law, 2014). On the heterarchical interaction of the national, international, and transnational legal orders, see Nico Krisch, Beyond Constitutionalism—​The Pluralist Structure of Postnational Law (Oxford: Oxford University Press, 2010). 9  Shaw, International Law, p.  50. Scholars do debate, of course, whether Art. 38 represents an authoritative and definitive statement of sources (i.e. the meta-​norm of sources), or merely a clause of applicable law for the ICJ. Few dispute its pragmatic value as a rallying point for the doctrine of sources, however. See, on this point, Jörg Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (London: Routledge, 2011), pp. 208–​10. 10   Article 38 (1) of the Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993) reads as follows: 8

‘The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. International conventions, whether general or particular, establishing rules expressly recognized by the consenting States;

644    sources and the hierarchy of international law should be considered in that specific order, giving treaties priority over custom, and custom priority over general principles.11 The proposal was rejected, however, and the order in which the sources are enumerated is therefore not generally thought to be of any legal relevance, though most scholars highlight the summa divisio which the provision introduces between primary and subsidiary means for the determination of rules of law, the former (treaties, custom, and general principles) standing as the only true sources of law, whilst the latter (judicial decisions and doctrinal writings) are generally said to serve only the interpretation or ascertainment of existing norms, lacking the ability to create rights and obligations ex nihilo.12 Beyond this broad categorization, however, the consensus remains that Article 38 does not establish a rigid hierarchy of sources, particularly when it comes to the relationship between customary law and treaties. These are said to exist alongside each other in no particular order of pre-​eminence, in a kind of decentralized and pluralistic arrangement where no source ranks higher than the others.13 The fact that a norm was created via one or the other sources listed in Article 38—​i.e. its formal pedigree—​is thought to be of little or no relevance to its legal status and authority. At a practical level, the absence of inherent hierarchies among sources of international law means that adjudicators are left to resolve conflicts of norms on an ad hoc basis, by means of interpretative techniques (e.g. harmonious interpretation) or conflict resolution principles (lex superior, lex specialis, lex posterior).14 Unsurprisingly, these ad hoc resolutions nearly always lead to a prioritization of the tribunal’s own body of law, in what may be termed a preference for the law of the forum or, more accurately perhaps, hegemonic assertions of jurisdiction. In these hegemonic struggles, conflicts of norms are thus rarely resolved in accordance with pre-​established hierarchies and are instead largely determined by the identity of the

b. International custom, as evidence of general practice accepted as law; c. The general principles of law recognized by civilized nations; d. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 11   On the drafting history of Art. 38, see Akehurst, ‘The Hierarchy of the Sources’, p. 274. 12   Jan Klabbers, International Law (Cambridge:  Cambridge University Press, 2013), p.  25:  ‘judicial decisions and the writings of the most highly qualified publicists are listed as subsidiary means only. . . . It follows from the organizing principle of sovereignty that [these subsidiary means] cannot make law, but only apply it’; Hugh Thirlway, The Sources of International Law (Oxford:  Oxford University Press, 2014), p. 8: ‘Neither a judge nor a scholar says “This is the law, because I say so”; they both lay down what they regard as established by one of the other sources.’ 13  See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, 94, para. 176. 14  See generally, Report of the Study Group of the International Law Commission on the Fragmentation of International Law, finalized by Martti Koskenniemi, 13 April 2006, UN Doc. A/​ CN.4/​L.682; Pauwelyn, Conflict of Norms, pp.  89–​109; Maarten Bos, ‘The Hierarchy among the Recognised Manifestations (“Sources”) of International Law’, Netherlands International Law Review 25 (1978): 334–​44.

mario prost   645 adjudicator (who decides) and the project it was set up to defend (trade, human rights, security and so on).15 The absence of rigid and formal hierarchies in the doctrine of sources should not, however, serve to conceal the fact that States, adjudicators, and legal scholars have, historically, expressed clear preferences for particular sources, and have thus established informal hierarchies, if not of validity, at the very least of importance or pre-​eminence among law-​making processes. The theory and practice of sources, in other words, is not entirely alien to what Clive Parry once called ‘logical scales of values’, i.e. the logical ordering of sources according to specific value judgements about their respective merits.16 Two such hierarchies are analysed here, positing the superiority/​primacy (if not the supremacy) of treaty law and customary law, respectively. Other orderings are possible, however, and as noted by David Kennedy, ‘advocates of all logically available positions exist’ regarding the hierarchical relationship among the various Article 38 sources.17

III.  The Treaty Primacy Thesis Legal reason is, fundamentally, a hierarchical form of reason ‘establishing relationships of inferiority and superiority between units and levels of legal discourse’.18 For this reason, and even though legal scholars are arguing that there is no formal hierarchy among the sources of international law, they generally find it difficult to refrain from passing some form of judgement on the superiority of one or the other sources listed in Article 38 (and by implication on the inferiority of the others). The leading view in this regard, at least as far as modern international law is concerned, is that treaties are the ‘most prominent’, ‘most important’, ‘most fundamental’, ‘dominant’, ‘major’, ‘principal’, or ‘primary’ source of international law.19 To some   For a theory of fragmentation as struggle for institutional hegemony and normative authoritativeness, see Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’, Modern Law Review 70 (2007): 1–​30 and Martti Koskenniemi, ‘International Law and Hegemony: A Reconfiguration’, Cambridge Review of International Affairs 17 (2004): 197–​218. 16   Clive Parry, The Sources and Evidences of International Law (Manchester: Manchester University Press, 1965), p. 28. 17   David Kennedy, ‘The Sources of International Law’, American University Journal of International Law & Policy 2 (1987): 1–​96, 16. 18   Koskenniemi, ‘Hierarchy in International Law’, p. 566. 19   See e.g., Klabbers, International Law, p. 25: ‘the treaty has become the dominant source of international law’; Crawford, Brownlie’s Principles, p. 30: ‘treaties are the most important source of obligation in international law’; Duncan B. Hollis, ed., The Oxford Guide to Treaties (Oxford: Oxford University Press, 2012), p.  8:  ‘treaties are an essential vehicle for organizing international cooperation and 15

646    sources and the hierarchy of international law scholars, the pre-​eminence of treaties is such that international law-​making can be usefully divided into ‘treaty law’ and ‘non-​treaty law’.20 Treaties on the one hand, everything else on the other. The ‘treaty primacy’ thesis comes in various degrees and forms, which can be categorized in two principal streams of arguments. The first stream posits that treaties and custom are normatively equivalent but that, as a matter of procedural order, treaties take priority over other sources of international law. When deciding a case, the argument goes, courts and tribunals do routinely—​and should as a matter of principle—​look at treaties first, before considering non-​treaty sources.21 This view is based on two principal justifications. The first is a pragmatic consideration. Treaties are generally thought to be superior instruments for resolving disputes owing to their written character, which confers a greater degree of precision and textual determinacy to treaty norms. Treaty norms are easier to locate, ascertain, and apply than other norms, particularly customary norms, the precise content of which can be difficult and onerous to establish. As noted by Jason Beckett, ‘State practice is widely dispersed, often awkward to identify, hard to weigh, and generally not uniform . . . It is easier to consult a written source.’22 Treaty law is also, by and large, devoid of the ontological and methodological uncertainties that are characteristic of customary law. Proving a treaty norm is generally unproblematic. There is hardly ever any dispute about the existence of a treaty: a treaty is either in force between the parties, or it isn’t.23 Proving custom, by contrast, is a far more uncertain enterprise that nearly always gives rise to serious controversies and often leaves adjudicators (or codifiers) exposed to criticism.24 In these circumstances, coordination. In both quantitative and qualitative terms, they are the primary source for international legal commitments and, indeed, international law generally’; Charles Rousseau, Droit International Public—​Tome 1:  Introduction et Sources (Paris:  Sirey, 1970), p.  59:  ‘si l’article 38 n’établit pas de hiérarchie entre les différentes sources qu’il énumère . . . on constate qu’il y a accord sur les idées suivantes: la première source, incontestablement la plus importante, est formée par les traités’; Wolfgang Friedmann, The Changing Structure of International Law (New York: Columbia University Press, 1974), pp. 123–​4: ‘it is obvious that, in the fast moving articulate and complex international society of today, the international treaty increasingly replaces custom as the principal source of international law’. 20   See Patrick Dailler, Matthias Forteau, Nguyen Quoc Dinh, and Alain Pellet, Droit International Public, 8th edn (Paris: LGDJ, 2009), who subcategorize their chapter on international law-​making into ‘formation conventionnelle’ and ‘formation non conventionnelle’. 21   See ILC, Fragmentation Report (2006), para. 85: ‘this informal hierarchy . . . emerges as a “forensic” or a “natural” aspect of legal reasoning. Any court or lawyer will first look at treaties, then custom and then the general principles of law for an answer to a normative problem.’ 22   Jason Beckett, ‘Customary International Law’, in Başak Çali, ed., International Law for International Relations (Oxford: Oxford University Press, 2010), 122–​41, 134. 23   Disputes occasionally arise regarding the validity of a treaty or its termination, though this is a rather rare occurrence. See, for a characteristic example, Gabčíkovo-​Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7. 24   The ICJ was notoriously criticized for its method of ascertaining customary law in the Nicaragua case, with some legal scholars blaming the Court for its ‘revisionist’ approach, for blurring the lines between practice and opinio juris, and for ‘trashing’ customary international law. Similar criticisms were directed at the International Committee of the Red Cross when it published its 2009 restatement

mario prost   647 it is hardly surprising that courts and tribunals should, as a matter of practice, demonstrate a preference for the formality and textual determinacy of treaty law. Noting this point, Hilary Charlesworth writes of a ‘hierarchy of sources in terms of ease of identification’.25 That treaties should enjoy procedural or operational priority is also justified by a principled consideration. This stems from the notion that States, by concluding treaties, are purposely ‘opting out’ of general (often understood as customary) international law to establish a special, derogatory regime (i.e. a lex specialis) in a given area of cooperation. This argument is found in its purest expression in the writings of Hersch Lauterpacht. Using a domestic law analogy, Lauterpacht considers that the rights and duties of States: are determined, in the first instance, by their agreement as expressed in treaties, just as in the case of individuals their rights are specifically determined by any contract which is binding upon them. When a controversy arises between two or more States with regard to a matter regulated by a treaty, it is natural that the parties should invoke and that the adjudicating agency should apply, in the first instance, the provisions of the treaty in question . . . In the above sense, treaties must be considered as ranking first in the hierarchical order of the sources of international law.26

The notion that treaties should take precedence as lex specialis inter partes has been recognized on various occasions in positive law. The 1907 Hague Convention (XII) Relative to the Creation of an International Prize Court, for instance, explicitly provided that ‘if the question of law to be decided is covered by a treaty in force between [the parties], the Court is governed by the provisions in the said treaty. In the absence of such provisions, the Court shall apply the rules of international law.’27 Though this procedural sequencing was not repeated in Article 38, the ICJ has itself stated on several occasions that ‘rules of [general] international law can, by agreement, be derogated from in particular cases or as between particular parties’,28 and that ‘in general, treaty rules being lex specialis, it would not be appropriate that a State should bring a claim based on customary-​law rule if it has by treaty already

of customary international humanitarian law. See, on this point, my analysis in Mario Prost, The Concept of Unity in Public International Law (Oxford: Hart, 2012), pp. 100–​2. 25  Hilary Charlesworth, ‘Law-​ making and sources’, in Crawford and Koskenniemi, eds, The Cambridge Companion to International Law, 187–​202, 190. 26  Hersch Lauterpacht, International Law—​ Collected Papers, vol. 1 (Cambridge:  Cambridge University Press, 1970), pp. 87–​8. See also Malanczuk, Akehurst’s Modern Introduction, p. 56 (‘a treaty, when it comes into force, overrides customary law as between the parties to the treaty; one of the main reasons why States make treaties is because they regard the relevant rules of customary law as inadequate’). 27   See Art. 7 of Convention (XII) Relative to the Creation of an International Prize Court (Hague Convention XII) (The Hague, 18 October 1907, 205 CTS 381). 28   North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (Judgment) [1969] ICJ Rep 3, 42, para. 72.

648    sources and the hierarchy of international law provided means for settlement of such a claim’.29 The International Law Commission (ILC), in its study on the fragmentation of international law, noted this jurisprudence, holding that ‘international tribunals give precedence to treaty law in matters where there is customary law as well—​a practice that highlights the dispositive nature of custom and the tribunals’ deference to agreements as the “hardest” and presumably most legitimate basis on which their decisions can be based’.30 The procedural primacy of treaty law constitutes the first version of the ‘treaty primacy’ thesis. The second version of the thesis is rather different. It posits that treaty law is not just operationally, but normatively superior (i.e. better) to other law-​making processes. The argument here is that the treaty is, comparatively, a ‘first-​class’ source of international law that possesses unique qualities and attributes. Though legal scholars have expressed a very wide range of views in this regard, treaty law is generally thought to possess three essential qualities that set it apart from other sources:  ontological determinacy, practical versatility, and process legitimacy. Ontological determinacy refers to the fact, already alluded to, that the nature of treaties as a source of international law is ‘unambiguous and uncontroversial’.31 Compared to customary law—​whose nature, constitutive elements, and methods of ascertainment remain matters of intense debate—​the law of treaties appears remarkably reliable and well settled, to the point that it has become practically unthinkable today to challenge its content.32 Though some areas of the law of treaties are open-​ended or subject to continued discussion (e.g. treaty interpretation, reservations), the Vienna Convention on the Law of Treaties, the argument goes, offers ‘consummate clarity’ to treaty law as a source of rights and obligations,33 and effectively functions as a form of ‘meta-​law’, a ‘stable legal code’ that regulates the whole life-​cycle of treaties, from their making, identification, and validation, to their application, interpretation, modification, and termination.34 Treaties thus enjoy a degree of ‘source determinacy’ unknown to other law-​making processes, promoting legal certainty and security in international relations.35

29  ICJ, Military and Paramilitary Activities in and against Nicaragua, para. 274. See also Amoco International Finance Corporation v Islamic Republic of Iran (1988) 27 ILM 1314, para. 112:  ‘as a lex specialis in the relations between the two countries, the Treaty supersedes the lex generalis, namely customary international law’. 30   ILC, Fragmentation Report (2006), para. 81. 31   G. J. H. van Hoof, Rethinking the Sources of International Law (Deventer: Kluwer, 1983), p. 117. 32   On the methodological problems posed, in contrast, by the identification of customary law, see Olivier Corten, Méthodologie du droit international public (Bruxelles: Bruylant, 2009), pp. 149–​78. 33   Thomas Franck, The Power of Legitimacy among Nations (Oxford: Oxford University Press, 1990), pp. 59–​60. 34   Martin Dixon, Textbook on International Law, 7th edn (Oxford: Oxford University Press, 2013), p. 55. 35   For a discussion of ‘source determinacy’ as a signifier of progress in international law, see Thomas Skouteris, ‘The Force of a Doctrine: Art. 38 of the PCIJ Statute and the Sources of International Law’, in Fleur Johns, Richard Joyce, and Sundhuya Pahuja, eds, Events: The Force of International Law (Abingdon: Routledge, 2011), 69–​80. The notion that the primary function of the law of treaties should

mario prost   649 As well as enjoying determinacy, treaties are generally favoured for their practical versatility. Treaties can be used for a variety of purposes and in a variety of contexts, from the dramatic (war) to the mundane (duty-​free shopping).36 They can be used to codify or restate pre-​existing customary law, or to make a fresh start and create new rules almost instantly.37 They can be used to regulate bilateral relations, or for larger legislative ambitions, laying down whole regimes to govern holistically areas such as humanitarian law or climate change. They can serve to articulate general principles of law (sovereign equality, non-​intervention, self-​determination), but equally to adopt highly specific technical standards on commodity prices or water pollution. To finish, some things can only be done by way of treaties, most notably the setting up of international institutions like the United Nations or the European Union.38 Finally, and critically, the treaty is generally viewed as superior to other sources by reason of its legitimacy as a law-​making process. Treaty-​making, to begin, is premised on the principle of freedom of contract (though the exercise of this freedom is rarely unconstrained). States are free, in principle, to sign up to a treaty or to choose not to become a party.39 They enjoy full freedom regarding the modalities and form of agreement. They are free to enter reservations, limiting or modifying the effect of the treaty in its application to them. And States are free, of course, to withdraw from treaties (in accordance with their provisions), as was recently illustrated by the withdrawal of Latin American States from the ICSID Convention or the United States’ decision to withdraw from the Paris climate agreement.40 Treaty-​making is thus, in principle, a conscious, deliberative process respectful of State consent and contractual autonomy.41 It is also, to some extent, subjected to be to provide certainty and security in legal relations was omnipresent during the proceedings at the 1969 Vienna Conference. See United Nations Conference on The Law of Treaties, First session, Vienna, 26 March–​24 May 1969, A/​CONF.39/​11. 36  See Christian Tams, Antonios Tzanakopoulos, and Andreas Zimmermann, eds, Research Handbook on the Law of Treaties (Cheltenham: Edgar Edward, 2014), p. x. 37   On the treaty as an instrument of legal innovation/​renovation in a fast-​moving world, see Charles de Visscher, Theory and Reality in Public International Law (Princeton:  Princeton University Press, 1968), p. 162; Friedmann, The Changing Structure, pp. 123–​4. 38   On the versatility of treaties, see generally Michel Virally, ‘The Sources of International Law’, in Max Sørensen, ed., Manual of Public International Law (London: Macmillan, 1968), 116–​74, 123–​4. 39   Boyle and Chinkin, The Making of International Law, p. 31. 40   Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) (Washington, 18 March 1965, 575 UNTS 159). See Lars Markert and Catharine Titi, ‘States Strike—​Old and New Ways for Host States to Defend Against Investment Arbitrations’, in Andrea K. Bjorklund, ed., Yearbook on International Investment Law & Policy: 2013–​ 2014 (Oxford: Oxford University Press, 2015), 401–​35, 427–​8. 41   International law has historically adopted a relaxed attitude towards the notion of freedom of consent. It has been particularly accepting of coercion in treaty-​making, prohibiting only the most egregious forms of duress (e.g. threat or use of force against State representatives), whilst tolerating the various ‘modes of persuasion’ (in particular political and economic pressure) which dominant powers routinely use when concluding international agreements. For a historical account, see Stuart S. Malawer, ‘Imposed Treaties and International Law’, California Western International Law Journal 7

650    sources and the hierarchy of international law democratic scrutiny. Treaty negotiations, in important areas such as climate change or trade/​investment, are largely covered by the media and the subject of public debate. Civil society is increasingly involved in treaty-​making, with the participation of NGOs in intergovernmental conferences and proceedings.42 And in many instances, treaty ratification involves a domestic ‘chain of legitimacy’ where treaties must be approved by the Parliament or some representative institution, and sometimes even by popular referendum.43 Treaty-​making, for the above reasons, is often regarded as comparatively more transparent and democratic than other law-​making processes (especially the nebulous process of customary law formation), a fact that is said to increase the effectiveness of international law, as norms generated through legitimate processes are thought to exert greater ‘compliance pull’.44

IV.  The Custom Primacy Thesis The ‘treaty primacy’ thesis has become dominant in the contemporary doctrine of sources. Very few would deny that treaties have come to assume a central role in international law-​making, both quantitatively and qualitatively. That thesis has, however, always coexisted with others that posit that custom ranks higher, normatively, than treaty law. As with the ‘treaty primacy’ thesis, the ‘custom primacy’ thesis comes in various guises and with different effects, three of which are discussed here. The first version of the thesis posits that custom is superior to other sources—​ particularly treaty law—​in that it somehow precedes and pre-​determines them, in other words that there can be no treaty law without a pre-​existing framework of customary law governing its formation. This argument has a long history. Writing at the turn of the twentieth century, Lassa Oppenheim stated that custom ‘is the original source of international law’.45 What he meant was not so much that, (1977): 1–​178. On the laissez-​faire attitude of international law towards economic coercion, see Antonios Tzanakopoulos, ‘The Right to be Free from Economic Coercion’, Cambridge Journal of International and Comparative Law 4 (2015): 616–​30. 42   Whether greater NGO participation necessarily leads to enhanced legitimacy is, of course, questionable. See on this point Kenneth Anderson and David Rieff, ‘Global Civil Society: A Sceptical View’, in Helmut Anheier, Marlies Glasius, and Mary Kaldor, eds, Global Civil Society (London: Sage, 2005); Boyle and Chinkin, The Making of International Law, pp. 59–​61. 43  Klabbers, International Law, p.  37; Rüdiger Wolfrum, ‘Legitimacy of International Law from a Legal Perspective: Some Introductory Considerations’, in Rüdiger Wolfrum and Volker Röben, eds, Legitimacy in International Law (Berlin: Springer, 2008), 1–​24, 6. 44   See Franck, The Power of Legitimacy. 45   Lassa Oppenheim, International Law—​A Treatise, vol. I (London: Longmans, 1905), p. 24.

mario prost   651 chronologically, custom came first and treaties second, but rather that custom was not dependent on any other source to exist, whereas treaties could only exist against the background of custom: ‘treaties are a source the power of which derives from custom. For the fact that treaties can stipulate rules of international conduct at all is based on the customary rule of the Law of Nations that treaties are binding upon the contracting parties.’46 The limits of this theory are well known. As Lauterpacht famously noted, if one subscribes to the view that treaties are binding only because there is a customary rule to that effect, ‘there remains the question why custom is binding’.47 It has, however, proved remarkably resilient. Hanks Kelsen, in his General Theory of Law and State, observed that ‘if we ask why a treaty is valid, we are led to the general norm which obligates the States to behave in conformity with the treaties they have concluded, a norm commonly expressed by the phrase pacta sunt servanda. This is a norm of general international law, and general international law is created by custom. . . .  Customary international law . . . is the first stage within the international legal order.’48 Paul Reuter, a leading scholar of the law of treaties and a firm believer in the ‘central position’ of treaty law in international life, conceded that ‘treaties are binding by virtue not of a treaty but of customary rules. In that sense, international custom is even more central than the law of treaties since it is the very pillar on which treaties rest. If one were to speak of a “constitution” of the international community, it would have to be a customary one.’49 James Crawford, in his recent Hague Lectures, took the same view, arguing that ‘international law is a customary law system, despite all the treaties: even the principle pacta sunt servanda, the obligation to comply with treaties, is a customary law obligation’.50 Common to all these views about the primacy of custom is the notion that customary law enjoys privileged, foundational status ‘at the heart’ of the international legal order and represents the source of all sources, the background that determines the condition of validity of all other legal norms and processes.51 This first version of the ‘custom primacy’ thesis, it should be noted, is not so much concerned with custom as a law-​making process as it is with certain basic, foundational principles (e.g. pacta sunt servanda) that happen to be of a customary nature.52 The second and third versions of the thesis, by contrast, have more to do 47  ibid.  Lauterpacht, International Law, p. 58.   Hans Kelsen, General Theory of Law and State (Harvard: Harvard University Press, 1945), p. 369. 49   Paul Reuter, Introduction to the Law of Treaties (London: Pinter Publishers, 1989), p. 29. 50   James Crawford, Chance, Order, Change:  The Course of International Law, vol. 365, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2014), 9–​369, 57. 51  Brigitte Stern, ‘Custom at the Heart of International Law’, Duke Journal of Comparative & International Law 11 (2001): 89–​108. 52   The notion that the rule pacta sunt servanda is a customary rule is, of course, open to question. Kelsen himself eventually abandoned this view, arguing instead that the rule pacta sunt servanda is an axiom incapable of juridical demonstration and not itself a part of the system of positive law. See Hans Kelsen, Principles of International Law, 2nd edn (New York: Rinehart & Winston, 1966), pp. 26–​8. 46 48

652    sources and the hierarchy of international law with custom as a process and its comparative merits. The second version of the thesis, to begin with, posits that custom is the only process capable of producing law in the proper sense of the term, i.e. rules of general validity, applicable to the whole legal order. This view was notoriously put forward by Gerald Fitzmaurice, who argued that treaties ought to be viewed as mere contracts which can do little more than create specific rules, applicable to specific parties, in specific contexts. Unable to produce genuine rules of law, treaties, he concluded, cannot be considered as sources of international law but merely as sources of rights and obligations. They may lead to the emergence of law proper if their provisions pass into the general corpus of customary international law. But because of their essentially contractual nature, Fitzmaurice viewed treaties as ‘no more a source of law than an ordinary private law contract’.53 This view of treaties as a mere source of obligations has had a certain influence and was espoused by many scholars after Fitzmaurice. Parry, for instance, while recognizing that treaties are of paramount importance when determining the rights and duties of States inter se, argued that the contribution of treaties to ‘the whole content and stuff of the international legal system . . . is relatively small’.54 To Parry, the treaty is essentially peripheral as a source of international law. It is custom, in his view, that defines the basic constitutional structure and general principles of international law as a system. The treaty, for its part, is ‘the contract of the international legal system’ and in the same way that one can learn about English law without reading a single contract, or even a single statute, ‘one can have a very fair idea of international law without having read a single treaty and one cannot gain any coherent idea of the essence of international law by reading treaties alone’.55 Ian Brownlie, to provide another example, listed treaties alongside General Assembly resolutions and drafts adopted by the ILC as ‘material sources’ exercising direct influence on the content of the law, rather than as ‘formal sources’ of law proper—​a distinction that only disappeared with Crawford’s re-​edition of Brownlie’s classical textbook.56 The point in these arguments about sources is that a hierarchy of sorts is introduced between custom as legislation and treaties as contracts. The third version of the ‘custom primacy’ thesis, to finish, is more directly concerned with the specific attributes which custom is said to possess as a law-​making process. To some legal scholars, customary law, as a formal source, is normatively superior (better) to other sources in its ability to generate universally applicable norms, i.e. norms which are binding on any and all States at once. Whilst treaties 53   Gerald G. Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’, in Symbolae Verzijl (The Hague:  Martinus Nijhoff, 1958), 153–​76, 157–​8. For a rebuttal, see Maurice H. Mendelson, ‘Are Treaties Merely a Source of Obligation?’, in William Butler, ed., Perestroika and International Law (Dordrecht: Martinus Nijhoff, 1990), 81–​8. 54 55  Parry, The Sources and Evidences, p. 34.  ibid., p. 35. 56   Ian Brownlie, Principles of Public International Law, 7th edn (Oxford: Oxford University Press, 2008), pp. 12–​13.

mario prost   653 may theoretically achieve universal participation, the argument goes, this remains an extremely rare occurrence and the universality of treaties is, in any event, likely to be undermined by reservations and other flexibility mechanisms. Norms generated through the customary process, by contrast, do not necessitate all States to opt in to become universal. Customary norms are born universal and States are not permitted to opt out of customary law unless they have persistently and unambiguously objected to its formation, a possibility that has played such a limited role in practice that it has become essentially theoretical.57 As was stated unambiguously by the ICJ, ‘customary rules and obligations, by their very nature, must have equal force for all members of the international community and cannot therefore be the subject of any right of unilateral exclusion’.58 Customary law, in this sense, offers the promise of majority rule and universal legality. Majoritarian universality is thus the great strength, the ‘unique selling point’ of customary international law.59 Whether this prospect is attractive and legitimate is, of course, very much a matter of perspective and circumstances. Creating legal norms without the consent of legal subjects bound by them would certainly appear illegitimate to most nineteenth-​century legal positivists. It always did, however, appeal to scholars committed to the idea of universal law and frustrated with the strict contractual nature of treaties and the limits inherent in voluntary law-​making.60 In recent years, this frustration has known something of a renewal, most notably in debates concerning global public goods. Many scholars have highlighted what they see as the inherent inadequacy of treaty law and its emphasis on State consent in dealing with global public good challenges such as climate change mitigation, fisheries depletion, the management of pandemics, or global security threats.61 To resolve such problems, the argument goes, global rules must be developed which are binding on all States. Because we cannot expect rules, especially in such controversial areas, to receive the specific individual consent of each and every one of the nearly two hundred States composing the international community today, these rules must be developed ‘regardless of the attitude of any particular state’,62 i.e. without or perhaps even against the will of individuals States.63 57   Ted Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’, Harvard International Law Journal 26 (1985): 457–​82, 467. 58  ICJ, North Sea Continental Shelf Cases, pp. 38–​9. 59   Beckett, ‘Customary International Law’, p. 124. 60   See e.g., Johann Kaspar Bluntschli, Le droit international codifié (Paris: Guillaumin et Cie, 1895), p. 58: ‘si le droit international était exclusivement le produit de la libre volonté des états, aucun d’eux ne serait obligé vis-​à-​vis des autres d’en respecter les principes, quand ces principes n’auraient pas été sanctionnés par un traité’. 61   See generally Nico Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’, American Journal of International Law 108 (2014): 1–​40. 62   Jonathan I. Charney, ‘Universal International Law’, American Journal of International Law 87 (1993): 529–​51. 63  Christian Tomuschat, Obligations Arising for States Without or Against their Will, vol. 241, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1993), 195–​370.

654    sources and the hierarchy of international law Treaty-​making, in this context, becomes problematic in that it gives any State the right to object to the formation of any proposed rule of international law. An excessive commitment to consent can therefore cripple efforts to develop the international norms which the world so desperately needs.64 The limits of treaty-​making in addressing global public good problems has prompted a (re)turn to non-​consensual law-​making processes. Some scholars have argued for the use of international institutions with majoritarian voting rules.65 Others, however, have simply advocated a wider use of custom to achieve universal norms without the specific support of every member of the global community. Christopher Weeramantry, for instance, has claimed that custom is vastly superior to the treaty as an instrument for dealing with global public good challenges. Pointing to the near-​impossibility of obtaining universal treaty ratifications, he argues that ‘we need to have resort to a set of principles that do not owe their existence to an act of specific State consent but reach beyond State consent to the primordial verities and principles on which the international order is founded’.66 In his view, ‘customary international law provides such a source, which will need to be increasingly relied upon in a future where unexpected and urgent problems of an unprecedented nature will keep arising, for which treaty law cannot provide the solution.’67 The superiority of custom as a source capable of producing legal universals is, of course, rooted in a particular vision of the world and of the role of law in it. The universal as a project is always particularly located. The primacy of custom is here justified on utilitarian (solving global public good problems) and semi-​naturalist grounds (the ‘primordial verities and principles’ of the international order). And output legitimacy (generating norms despite opposition by a reluctant minority) matters more than normative legitimacy (the ‘justness’ of norms and institutional arrangements) or process legitimacy (who decides and according to what procedures). Unsurprisingly, these justifications for the primacy of custom do not resonate with everyone and some States and scholars have historically resisted custom as a legitimate method for making (universally applicable) international laws. In the immediate post-​colonial era particularly, the approach of Third-​World States and scholars to international law was characterized by a clear rejection of custom. Importantly, this was not simply a rejection of specific customary norms, thought to express relationships of domination, inequality, and privilege. The rejection was much broader and concerned custom as a law-​making process more   See Andrew Guzman, ‘Against Consent’, Virginia Journal of International Law 52 (2012):  747–​ 90; Laurence R. Helfer, ‘Nonconsensual International Lawmaking’, University of Illinois Law Review (2008): 71–​125; 65   Joel Trachtman, The Future of International Law:  Global Government (Cambridge:  Cambridge University Press, 2013). 66  Christopher Weeramantry, Universalising International Law (The Hague:  Martinus Nijhoff, 2004), pp. 223–​4. 67  ibid. 64

mario prost   655 generally. Custom as a process was deemed both illegitimate and ineffective. It was deemed anti-​democratic for it was created in accordance with the needs of powerful (Western) nations, and then imposed onto the silent (non-​Western) majority.68 And it was deemed ineffective because it made the prospect of radical transformation of the legal system remote. Newly independent States needed institutions and structures allowing rapid modification and adaptation of the law, a need to which custom, with its slow and undecided tempo, was ill-​adapted. Custom was thus perceived as a largely deficient source of international law: ‘backward looking, conservative because static, iniquitous in its content, ponderous in its formation, custom as traditionally conceived cannot be of real use in the development of new rules, and could actually be an obstacle to any attempt at change’.69 Most Afro-​Asian States, as a result, expressed a clear preference for reforming the law through deliberative mechanisms such as conferences, treaties, and resolutions.70

V. Conclusion Doctrines about the sources of international law generally begin with an abstract definition of the sources listed in Article 38 and nearly always posit, as a general rule, that there exists no formal hierarchy of validity among them. Beyond this, however, and as the above makes clear, the discourse on sources is replete with hierarchical discussions elaborating the procedural, practical, or normative superiority of some sources over others. International law about sources, in this sense, is first and foremost a set of doctrinal boundaries and hierarchies. Critically, though, these hierarchies are not rigid, pre-​determined, or definitive but rather fluid and transient. The hierarchical arguments discussed above are not always, to begin with, mutually exclusive. It may be possible, for instance, to argue that treaties take precedence over custom as a matter of procedural or operational priority, and at the same time that treaty law remains somehow subordinate to customary law, as the latter determines its conditions of validity and interpretation. Lauterpacht is a 68   This critique mirrored that which was levelled earlier by the Soviet doctrine against custom, seen as entrenching the hegemony of capitalist States. See e.g., Grigory I. Tunkin, Co-​existence and International Law, vol. 95, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​ Nijhoff, 1958), 5–​78, 46–​8. 69   Mohammed Bedjaoui, Towards a New International Economic Order (New York: Holmes & Meier, 1979), p. 137. 70   See Abdulqawi Yusuf, Pan-​Africanism and International Law (The Hague:  Hague Academy of International Law, 2014), ch. 3; and Ram Prakash Anand, Confrontation or Co-​operation: International Law and Developing Countries, 2nd edn (Hope, 2011), pp. 39–​41.

656    sources and the hierarchy of international law case in point here, having argued on different occasions that, operationally, treaty law ‘ranks first in the hierarchical order of the sources of international law’,71 and, at the same time, that ‘in the international sphere, where legislation in the true sense of the world is non-​existent, custom is still the primary source: it supplies the framework, the background and the principal instrument of the interpretation of treaties’.72 More importantly though, these arguments about sources hierarchies are rarely, if ever, fixed or set in stone. They are, more often than not, context-​dependent and determined by the project or strategy pursued by the lawyers making them. These informal hierarchies reflect and continue the problematics and desires that motivate them. Arguments about the primacy of treaty law are generally driven by a desire for determinacy and consent-​based legitimacy. Arguments about the primacy of custom are generally driven by a desire for autonomy (from consent) and universality. As contexts and desires shift, so too do sources hierarchies. In the classical doctrine of international law, the main hierarchy was not between treaties and custom but one between natural (divine) law and man-​made rules. To a nineteenth-​century scholar, normative hierarchies had to reflect a positivist concern with State consent, thus giving priority to treaties as the ideal type of sources. To a twentieth-​century Third-​World scholar, the hierarchy of sources is one typically characterized by a rejection of traditional sources and a preference for mechanisms giving force to the numerical strength of the Third World (e.g. United Nations General Assembly (UNGA) resolutions). Source hierarchies are thus historically contingent.73 They are also functionally determined. Each source possesses specific design features (determinacy, flexibility, universality, and so on) that make it suitable to deal with a specific class of cooperation problems. States may prefer the design features of treaties when tackling problems with high distributional costs (e.g. climate change) but express a clear preference for custom in dealing with problems that require norms articulated at a high level of generality or in domains where rules benefit all States in equal proportion (e.g. State immunities).74 Likewise, the same lawyer may argue the superiority of treaty law in one context (as a legal scholar, for instance) and, the next day, argue the primacy of customary law in another context (as a legal adviser, counsel, or judge). And even within one and the same context (a specific dispute, for instance), arguments about source hierarchies typically fluctuate between the ‘treaty primacy’ and ‘custom primacy’ theses, mediating the tension

 Lauterpacht, International Law, pp. 87–​8.   Hersch Lauterpacht, The Development of International Law by the International Court (Cambridge: Cambridge University Press, 1982), p. 387. 73   On the historically contingent nature of source hierarchies, see Harlan Grant Cohen, ‘Finding International Law: Rethinking the Doctrine of Sources’, Iowa Law Review 93 (2007): 65–​129. 74   Laurence R. Helfer and Ingrid B. Wuerth, ‘Customary International Law: An Instrument Choice Perspective’, Michigan Journal of International Law 37 (2016): 563–​609. 71

72

mario prost   657 between determinacy and generality, consensualism and non-​consensualism, sovereignty and community.75

Research Questions • What is the nature of the relationship among sources of international law? • Why—​and in what contexts—​do legal actors (States, judges, scholars) express preference for particular sources?

Selected Bibliography Akehurst, Michael, ‘The Hierarchy of the Sources of International Law’, British Yearbook of International Law 47 (1975): 273–​86. Bos, Maarten, ‘The Hierarchy among the Recognised Manifestations (“Sources”) of International Law’, Netherlands International Law Review 25 (1978): 334–​44. Cohen, Harlan Grant, ‘Finding International Law: Rethinking the Doctrine of Sources’, Iowa Law Review 93 (2007): 65–​129. Koskenniemi, Martti, ‘Hierarchy in International Law:  A  Sketch’, European Journal of International Law 8 (1997): 566–​82. Lauterpacht, Hersch, International Law—​Collected Papers, vol. 1 (Cambridge:  Cambridge University Press, 1970), ch. 2 (3). Pauwelyn, Joost, Conflict of Norms in Public International Law—​How WTO Law Relates to Other Rules of International Law (Cambridge: Cambridge University Press, 2003), ch. 3. Thirlway, Hugh, The Sources of International Law (Oxford: Oxford University Press, 2014), ch. VI.

75   As Kennedy has demonstrated, the whole discourse on sources can be interpreted as an attempt to mediate between consensualism and non-​consensualism, to demonstrate international law’s respect for sovereign autonomy and, at the same time, its systemic authority. See Kennedy, ‘The Sources’.

Section  XV I

SOURCES AND THE NORMATIVITY OF INTERNATIONAL LAW

Chapter 31

SOURCES AND THE NORMATIVITY OF INTERNATIONAL LAW A POST-​F OUNDATIONAL PERSPECTIVE

Detlef Von Daniels

I. Introduction In the philosophy of international law, the question of its sources is already highly abstract; asking further after the normativity of the sources might appear to be like reaching for the sun. Since international law is more than other areas of law inevitably bound up with value claims and aspirational ambitions, the legal practitioner might expect to find in the normativity of the sources their purest or most condensed expression. At a more practical level, she might hope to obtain in this contribution answers to specific questions such as whether, or to what degree, a given legal material is in fact normative, and look for clear-​cut criteria which she can apply and cite authoritatively. However, just as purified water is lethal to the human body and cannot be used to cleanse a given drink either, this contribution will not

662    sources and the normativity of international law state a definite answer, but focus on the process of ‘purification’, i.e. on how to think about the normativity of sources. To this end, I will show that normativity is not an eternal concept that can be conceptually analysed in the manner of analytical jurisprudence, but the epitome of a practice that needs to be understood historically and contextually. Since this post-​ foundational approach is unusual in contemporary jurisprudence and legal theory, I use Hans Kelsen’s theory as a switchboard between historical forms of understanding and contemporary anglophone debates. In practical terms, I discuss the relevance of this approach with regard to three contested topics in the debate on the sources of international law: the status of general principles, soft law, and practical reasoning. The gist of this contribution is to show that a historical and theoretical awareness provides reasons to oppose contemporary attempts to moralize the legal point of view. As the perspective requires becoming aware of a number of contexts, I start by discussing the origins of normativity and explaining Kelsen’s approach. I then present an account of normativity in national law, show how it translates into the international arena, and finally discuss its relevance with regard to normativity of general principles, soft law, and practical reasoning. The practical discussion at the same time serves to defend the approach against competing views.

II. Normativity 1. Origins Normativity is the central quality of law. Understanding the basic distinction between ‘ought’ and ‘is’ can largely be presumed across cultures and historical periods; it is part and parcel of speaking a language.1 However, understanding the basic distinction between ‘norms’ and ‘facts’ in the modern world requires becoming aware of a variety of contexts and levels of discourses. A  historic example at the edge of mythology might serve to clarify the role of normative language: ‘[w]‌hen Romulus was digging a trench where his city’s wall was to run, Remus ridiculed some parts of the work, and obstructed others. At last, when he leaped across it, he was smitten (by Romulus himself, as some say; according to others, by Celer,   This does not mean, however, that normativity is an eternal concept that resides above historical change and philosophical consciousness. For tracing the origins of the distinction between ‘is’ and ‘ought’ one would have to consider thinking in mythical times or maybe in indigenous cultures. For an attempt that outlines at least the relevant contexts for approaching this question, see Hans Kelsen, Society and Nature. A Sociological Inquiry (Chicago: The University of Chicago Press, 1943). 1

detlef von daniels   663 one of his companions) and fell dead there.’2 The story recounts the beginnings of Rome, written at a time when the Roman Empire ruled the civilized world by means of its law (and might). Indeed, it is a story about the origins of municipal law. What Remus failed to recognize is precisely the normativity expressed by the established structure. Obstructing the building—​thus working against it at the same level (comparable to making a different legal claim)—​or ridiculing it—​thus changing the discourse—​are permissible ways to react. However, by leaping across the wall, he treated it as a mere wall and not as a sign of a norm, the presumed norm that city walls ought to be respected. Romulus’ killing was therefore not a disproportionate reaction to an insult, but a sanction that followed the wrong (the delict) and upheld the underlying norm. In Kelsen’s words, the presumed norm functions as a scheme of interpretation.3 The story moreover shows that law arises out of a complex lifeworld that includes various practices and discourses, among them ridiculing the establishment of borders and claims to lordship.4

2. Normativity of Law in Modern Times a. Hierarchy of Norms For modern times, several additional contexts need to be distinguished, which can again be clarified with the help of Kelsen. He argues that a legal act derives its normativity not from some unspecified sacred norm or shared sense of morality, but from a higher norm. In other words, the law regulates its own creation. Therefore, the legal order is a ‘system of general and individual norms connected in such a way that the creation of each norm of the system is determined by another’.5 Two further distinct leitmotifs of Kelsen are connected to this elementary starting point: first, the hierarchy of norms; and second, the autonomy of law and legal theory, or ‘legal science’. As every legal act derives its normative force from a higher norm, which in turn refers to an even higher norm, the hierarchy of norms is in danger of becoming  Plutarch, Romulus, in Plutarch, Parallel Lives, vol. 1, trans. Bernadotte Perrin (Harvard: Harvard University Press, 1914), 177. 3   Hans Kelsen, Pure Theory of Law, trans. from the 2nd edn, Max Knight (Berkeley: University of California Press, 1967), p. 2. 4   The most famous ridicule, a speech that does not make legal or moral claims, but is spoken into the wind, was delivered exactly 2,608 years later when Duwamish chief Seattle answered an offer from President Franklin Pierce to buy his people’s land: ‘how can you buy or sell the sky, the warmth of the land? The idea is strange to us. If we do not own the freshness of the air and the sparkle of the water, how can you buy them from us?’ This popular version is in fact a free adaption written for a film script. See Rudolf Kaiser, ‘Chief Seattle’s Speech(es): American Origins and European Reception’, in Brian Swann and Arnold Krupat, eds, Recovering the Word: Essays on Native American Literature (Berkeley: University of California Press, 1987), 497–​536, 525–​30. 5  Kelsen, Pure Theory, p. 233. 2

664    sources and the normativity of international law endless. Kelsen’s solution to this problem is that every normative system, be it moral or legal, must presuppose a basic norm that establishes the objective validity of the norm of the order. ‘The basic norm is the common source for the validity of all norms that belong to the same order—​it is their common reason of validity.’6 As Kelsen presupposes the focus on the normativity of the legal system, he does not see legality as a separate problem but identifies legality with the quality of a norm belonging to the legal system, in the same way as morality is made up of moral norms or the etiquette of a given milieu of rules of courtesy.7

b. Autonomy of Law The reason why this account is an answer to the question of normativity can be explained by considering and analysing the alternatives, which brings us to Kelsen’s second major leitmotif, the autonomy of law and of legal science. Identifying the basic norm with some observable behaviour would first be an epistemic mistake of deriving an ‘ought’ from an ‘is’. The distinction between ‘is’ and ‘ought’ is something Kelsen assumes for legal theory as a given:8 ‘[t]‌he difference between is and ought cannot be explained further. We are immediately aware of the difference.’9 This claim is, however, not simply a premise, but best understood as a strategy that shows the possibility of an idealistic alternative to empiristic endeavours. As a slogan it can be formulated in the following way: whenever someone presents you with an empirical foundation of law, such as a ‘social fact’, look for the hidden normative assumptions in it, or ask why this fact should be binding. More of an argument cannot be given for an ‘immediate awareness’. The upshot of the strategy can be demonstrated regarding H. L. A. Hart’s criticism that Kelsen’s presupposition of a basic norm is a ‘needless reduplication’ as there is a fact,10 albeit a social fact, that gives rise to normativity. Hart identifies the ‘practice of officials’ as the relevant fact.11 However, the notion of a ‘practice’ may sound like an empirical fact, but pointing to it does not solve the problem of how a practice can give rise to normativity if not by acting (in the case of Romulus: building a wall) and presupposing a normative scheme of interpretation (respect this wall as a border!) at the same time. Indeed, in the postscript to The Concept of Law, written thirty years later, Hart clarifies that it is not an observable practice but the ‘distinctive normative attitude’ that gives rise to normativity. Thus, the notion of a practice does not overcome the dualism between ‘is’ and ‘ought’, as Hart’s ‘normative attitude’ is   ibid., p. 195.   From a sociological perspective, Niklas Luhmann, in Die Gesellschaft der Gesellschaft (Frankfurt am Main: Suhrkamp, 1997), has further developed this conceptual separation of the whole of society into different systems. For a view that separates the questions of legality and validity, see c­ hapter 25 by Pierre d’Argent in this volume. 8 9   For a proviso regarding this immediate awareness, see n. 1.  Kelsen, Pure Theory, p. 5. 10   H. L. A. Hart, The Concept of Law, 2nd edn (Oxford: Clarendon Press, 1994), p. 246. 11   ibid., p. 108. 6 7

detlef von daniels   665 but one way to express the general idea of an ‘ought’.12 The ‘existence’ of the rule of recognition that Hart stresses simply means that the normative system is overall effective, a presupposition Kelsen shares.

c. Autonomy of the Legal System in Society Retaining the epistemic autonomy of a legal system might likewise appear to be a needless complication, as this preoccupation of Kelsen is usually not even an issue in post-​Hartian anglophone legal philosophy. However, the idealistic, Neo-​Kantianism perspective Kelsen stresses is not simply an odd variety of the contemporary discourse but the result of a specific view of modernity as a precarious achievement. Accordingly, modern rationality has not just brought about the modern sciences and dissolved all mythical explanations of the physical world. It has also led to a rationalization of the lifeworld and its differentiation into functional systems. Consequently, the scientific worldview (‘science’ understood in a comprehensive way, including the humanities) can no longer answer existential questions or provide a sense of wholeness. This process was described by several authors in the 1920s and 1930s, most famously by Max Weber in his Lecture on Science as a Vocation and Edmund Husserl in his Crisis treatise.13 The reason that this process can come into view as a precarious one is that totalitarianism, especially fascism, apparently revoked many of these differentiations while retaining a technological edge and an ideological lure. Even if this is not always made explicit, it is the fundamental challenge to which all authors in the 1930s and 1940s reacted.14 In this contextual perspective, retaining the autonomy of the legal system is not just a historical reminder, or an abstract epistemic argument, but the recognition of an epistemic achievement that rests upon a specific kind of social organization of society. The criticisms often voiced regarding Kelsen’s theory of the basic norm that it is ‘utterly sterile’,15 or an ‘exercise in logic and not in life’16 can then be granted as being the price of modernity. However, one might argue that the differentiation of society can nowadays be granted (which is arguably only true for the Western world), or is at least presumed in legal and philosophical scholarship. Therefore, it   ibid., p. 255.  See Max Weber, The Vocation Lectures, trans. Rodney Livingstone (Illinois: Hackett Books, 2004); and Edmund Husserl, The Crisis of European Sciences and Transcendental Phenomenology: An Introduction to Phenomenological Philosophy, trans. David Carr (Evanston: Northwestern University Press, 1954). 14   Kelsen dealt with this totalitarian challenge only indirectly in the form of his anthropological study Society and Nature, so to say a more mundane and scholarly version of Max Horkheimer’s and Theodor W. Adorno’s Dialectic of Enlightenment, trans. Edmund Jephcott (Stanford:  Stanford University Press, 2002). 15   Karl N. Llewellyn, Jurisprudence:  Realism in Theory and Practice (Chicago:  The University of Chicago Press, 1962), p. 356. 16   Harold Laski, A Grammar of Politics, 4th edn (London: Allen & Unwin, 1938), p. vi. 12 13

666    sources and the normativity of international law is worth noting that Kelsen stresses the autonomy of law not only for epistemic reasons but also for practical ones. Again, a contextual reading shows that he thereby develops a specific point of view, which is worth retaining.

d. Legal Systems and Morality Defending the autonomy of the legal system regarding moral norms requires a more complex argument. Since moral norms are normative as well, it would not be a categorical mistake to derive a legal norm from a moral one; it would only derail the autonomy of the legal system regarding a specific discourse. Therefore, Kelsen develops a specific argument that presupposes the existence of a bureaucratic State and a post-​Nietzschean state of philosophy.17 Both assumptions need to be briefly explained. Natural law theorists who defend a classical position often point out that all natural law theorists reserve some place for positive law, and even grant that it has normative force, albeit within certain limits set by the natural law theory.18 Kelsen counters this proposition with a historical perspective on natural law theory. Before the era of codifications of legal materials and the bureaucratization and rationalization of the State apparatus, it was indeed one function of classical natural law theory to provide a systematic overview of legal material and legal procedure that did not exist otherwise. However, with the closure or centralization and bureaucratization of the legal system, every legal act could be validated only by reference to the legal system. Thus, unlike in previous times, having natural law theory is no longer a functional necessity. Still, one could hold that it is necessary for different reasons, for example for giving a full or (morally) convincing account of the workings of a legal system, for providing standards for criticism, or for answering the duty of individuals to obey.19 Against this line of reasoning, Kelsen develops a specific form of ideology critique, pointing out when and how a legal practice dissolves into some form of mythical thinking and showing how moral and legal theory try to ignore the post-​foundational philosophical stance. If natural law theory is no longer a functional necessity, it works like a law behind the law, that can be accessed at will at every stage of the law-​creating and law-​applying process. This, however, does not mean that natural law theory therefore always has an ameliorating effect on society. Instead, Kelsen holds that throughout history it had mostly a conservative tendency and justified whatever power was in place.20 17   For an explicit formulation of Kelsen’s post-Nietzschean stance see his Secular Religion: A Polemic Against the Misinterpretation of Modern Social Philosophy, Science and Politics as ‘New Religions’, ed. Robert Walter (Vienna: Springer, 2011), pp. 199–271. 18  For a classical position, see John Finnis, Natural Law and Natural Rights (Oxford:  Oxford University Press, 1980). 19   In the contemporary debate, Ronald Dworkin has made this line of thought prominent again. 20   Hans Kelsen, General Theory of Law and State (Cambridge: Harvard University Press, 1949), pp. 416–​18. Pars pro toto, Kant’s explanation can be named, that the saying ‘All Authority is from God’ sets forth ‘a practical principle of reason: the principle that the presently existing legislative authority ought

detlef von daniels   667 In any case, the harshest forms of condemnations are usually reserved for the others.21 It should be noted that Kelsen does not simply take the position of a cultural relativist; instead, he is aware of the historicity of moral and philosophical theories themselves. This is a specific perspective Karl Marx discovered for the first time by giving a material explanation of the development of philosophical theories. However, Marx still tried to find a scientific explanation for the rational course of the word. Only Friedrich Nietzsche radicalized this insight by showing that every story of progress could be told as a story of decline, and by abandoning the vanity of philosophy in favour of the joyous play of signs and interpretations.22 Once philosophy takes this insight seriously, it can in principle no longer support the legal system by providing an ultimate and sound foundation and thus becomes post-​foundational. Sometimes Kelsen uses the example of capitalist and socialist constructions of property to show that natural law theories can be formulated to serve very different ends.23 Mostly, he does not state an abstract argument in favour of a value-​free approach, but employs the general strategy of showing how allegedly neutral jurisprudential theories include hidden value judgements, or how moral theories fail to give an absolute account of the ‘good’.24 However, Kelsen’s form of ideology critique has a specific gist, which makes it relevant to the present day. He does not only try to retain the autonomy of law regarding morality, but is likewise opposed to sociological explanations of law. Mostly, he uses epistemological arguments to show that sociological theories that explain legal behaviour in the form of ‘prediction’ do not grasp the inner sense of obligation and must usually presume a normative conception of law. However, a sociological or social conception of law can also be employed for a different kind of ideology critique, namely maintaining that all laws are indeed only expressions of power or class relations. There is thus a dual challenge to the autonomy of law, one from natural law theory, and the other from social theory. Kelsen’s solution is to show that legal theory can be done in a pure and value-​f ree way.

to be obeyed, whatever its origin’. Immanuel Kant, Metaphysik der Sitten, in Berlin-​Brandenburgische Akademie der Wissenschaften, ed., Kants Werke, vol. VI (Berlin: de Gruyter, 1968 [1797]), p. 319. 21   This was true until today. ‘Outlaw States’ can only be the others, even in John Rawls’ Law of the Peoples (Cambridge: Harvard University Press, 1999). 22   Friedrich Nietzsche, The Gay Science: With a Prelude in Rhymes and an Appendix of Songs, trans. Walter Kaufmann (New York: Vintage Books, 1974). 23  Kelsen, Pure Theory, p. 220. 24  Kelsen’s prime philosophical target is Plato, as he sees in him the basis of all philosophical attempts to conceive of the good through thinking (theoria). See his Die Illusion der Gerechtigkeit. Eine kritische Untersuchung der Sozialphilosophie Platons, eds Kurt Ringhofer and Robert Walter (Vienna: Manz, 1985).

668    sources and the normativity of international law

III. Sources of Law 1. National Law With this apparatus at hand, we can now consider the normativity of sources of national law before turning to the international arena. The question of normativity can in principle be posed regarding every level of the legal system, custom, constitution, legislation, jurisdiction, administration, and individual contracts. The strength of Kelsen’s analysis is that it does not prescribe one way to organize the legal system, e.g., with a constitution, statutes, civil administration, and a separation of powers. Instead, it is a way to analyse the structure of legal systems. Thus, it is possible that the constitution (in the material sense) of a legal system arises either in the form of a symbolic act or through custom.25 In any case, the normativity of the ultimate source is not the written text itself or its proclamation, thus a social fact, but the presupposed norm that one should act accordingly, a norm which needs to be generally effective to exist. Likewise, custom is not a source as such, but only under the presupposition that a certain kind of custom should be regarded as normative. This point already shows a first general feature of Kelsen’s way of thinking about the normativity of law. He does not deny differences such as between custom and constitution, but does not see them as essential. Instead, they can be analysed as a matter of degree. Moreover, all written constitutions and laws do rely on implicit practices and customs, whereas, all (modern) forms of custom are fixed at some point in writing and complemented by statutes. The only difference between legislation and custom as source of law is accordingly that one is generated in a relatively centralized way, the other in a relatively decentralized way. This way of analysis also bears on the question of formality and systematicity of law. According to Kelsen these are not empirical features, which can be gathered to a certain degree, but theoretical presuppositions that are not in the things themselves but in the form of conceiving them.26 The very same method of analysis is likewise useful for thinking about the normativity of legislation and jurisdiction. Instead of seeing one as a ‘proper’ source of law and the other as a ‘mere’ application, Kelsen shows that both are part of a unified process of law creation. The legislature creates general norms according to the specified procedures; the judiciary creates individual norms

 Kelsen, Pure Theory, p. 221.  For a non-​idealistic, thus implicit, empirical take, see c­hapter  18 by Frederick Schauer and ­chapter 27 by Michael Giudice in this volume. 25

26

detlef von daniels   669 according to its procedures.27 There is, however, no fundamental difference in normativity within this process. This unified structure of normativity goes down to the level of individual contracts through which individual norms are created. Once they are recognized by the legal system, or created according to its rules, contracts are its instantiations but have no other source:  ‘[t]‌he legal order by instituting the legal transaction as law-​creating fact, authorizes the individual subject to the law to regulate their mutual relations within the framework of general legal norms created by legislation or custom’.28 One could therefore say that in national law, sources are dispersed across the whole system, held together only by the basic norm. The only difference in kind regarding normativity is between those sources that are part of the normative legal process (law-​creating and law-​applying functions) and sources that influence the process, such as moral and political principles, legal theories, expert views, etc. The latter are not legally binding unless a legal source makes them mandatory.29 The important differentiation to make is that the additional sources are only influences among others. The reason that Kelsen draws a sharp line at this point is that not only principles, but all kinds of different influences, theories, principles, or value judgements could be named which might be equally important, e.g. fostering the historical mission of the proletariat or (at the other side of the political spectrum) upholding the belief in the doctrine of divine right of kings. These are, however, mere influences, but not normative sources. To put it in contemporary terms: the reason that Kelsen opts for ‘exclusive legal positivism’ is that he has a much wider view of possible forms of theories that could be used: moral, anthropological, or cultural ones.30 Allowing any of these would open a Pandora’s box as there is no guarantee that only ‘good’, liberal, or even only rational principles would come in. The second general feature of Kelsen’s thinking about normativity is already implicit in this outline:  every norm (individual or general) and law-​creating or law-​applying function is part of a system unified through the basic norm. It is noteworthy that the basic norm is a quasi-​transcendental presupposition; thus, Kelsen does not promote a unified system of codified laws, but says that every legal system is a relatively centralized normative system. It can be federally organized and have local varieties. The perspective that Pure Theory provides is, however, one that analyses only the normative relations.

 Kelsen, Pure Theory, p. 234.   28 ibid., p. 257.   29  ibid., p. 233.  See Wilfrid Waluchow, ‘Legal positivism, inclusive versus exclusive’, in Edward Craig, ed., Routledge Encyclopedia of Philosophy (London: Routledge, 2001), , accessed 24 June 2016. 27

30

670    sources and the normativity of international law

2. International Law a. Variety of International Law Given this mindset, it might appear easy to account for the normativity of the sources of international law as well, as Kelsen is known for defending a monism of national and international law in his theoretical writings,31 and promoting the primacy of international law in his political essays.32 However, since I have previously stressed the precarious status of the Pure Theory as a post-​Nietzschean and culture-​ dependent perspective that serves foremost as an ideology critique, the Kelsenian perspective can be presented in a modified way. To this end, it is useful to recall the different attempts at establishing an international order throughout history. Kelsen was very much aware that the development of philosophy since ancient times has always been interrelated with ideas about a suitable international order.33 Even though he did not explicitly include this historical perspective in his jurisprudential writings, they are at work in the background and explain the specific point of view he takes as an answer to the role (and possible degeneration) of law in the modern world and its theorizations. In the twentieth century, the failings of the League of Nations are a telling example, as it was founded on principles which still determine the thinking about international law today, and as the Charter of the later United Nations (UN) was drafted to avoid the mistakes of the League. Its flaws were generally known, and Kelsen shows no mercy when exposing them.34 After Germany, Japan, and Italy withdrew their membership (the US refused to join from the beginning), the League of Nations was no longer a real union, but reduced to a secretariat, supported only by a ‘League of Nations illusion’ and some segments of public opinion. Kelsen admits that one of the causes of the League of Nations’ downfall was that it was conceived by defeated powers in World War I as an insurance company of the victors, but not as a venue to deal with international affairs on a fair basis.35 Kelsen’s later thinking about international law was spurred by two partly conflicting motives: first, to promote a juridification of the international order in order to secure peace;36 and second, to show that the Pure Theory can give  Kelsen, Pure Theory, pp. 328–​43.   Hans Kelsen, Peace through Law (Chapel Hill: University of North Carolina Press, 1944). 33   Kelsen reads Plato and Aristotle as answering conflicts of their time through their metaphysical and political theories. Kelsen’s contextual interpretation of classical texts is reminiscent of the method of the Cambridge School of the History of Ideas. See Kelsen, Die Illusion der Gerechtigkeit and Hans Kelsen, ‘Die hellenisch-​makedonische Politik und die “Politik” des Aristoteles’, Zeitschrift für öffentliches Recht 12 (1933): 625–​78. 34   See Hans Kelsen, Zur Reform des Völkerbundes, ed. Internationale Kulturliga (Prague:  Pax Edition, 1938). 35   The reasons for the League of Nations’ downfall are disputed among historians. Germany’s status especially had improved considerably before Hitler’s rise to power, so the path from Versailles to Hitler was by no means necessary. 36  Kelsen, Peace through Law. 31

32

detlef von daniels   671 an account of international law as well and is therefore a general theory. For these two motives, he does not always stay true to his original ideology-​critical programme, so these views must be introduced cautiously and in some respect modified. As a background, one must recall that even after the foundation of the UN, international law was not on a determined track towards further constitutionalization,37 but a site of constant ideological contestation.38 One example may serve to remind us of the complications that pervaded international law even when it comes to determining its central actors, the States. Before 1990, Poland had two governments, one in exile, recognized only by Ireland, Spain, Cuba, and the Vatican City, and a government recognized by virtually the whole world. This example is telling, as Lech Wałęsa, after he became the first freely elected president, took his power not from the president of the People’s Republic of Poland but from the president of the government in exile. Thus, retroactively, the legal status of an ‘ordinary’ government changed to a de facto regime.

b. A Unitary Perspective Regarding the myriad of complications in the international arena, Kelsen’s explanation of the normativity of the sources of international law might appear to be overly simplistic. He argues first that in international law, custom and treaty can be regarded as the only sources; both, however, are not sources as social facts, but only under the presupposition of the basic norm that one should act accordingly or regard them as normative.39 Since treaties are based on international customary law, he opts for custom as the highest level and gives the basic norms the formulation: ‘[t]‌he States ought to behave as they have customarily behaved’.40 He then goes on to argue that for logical reasons, the relation between national and international law cannot be perceived as dualistic, but must be constructed in a monistic way. He tries to preserve a value-​free perspective by granting that the unity can be constructed in one of two ways: either by positing the basic norm at the international level and thereby regarding all national legal systems as derivative; or by positing the basic norm at the national level, and, therefore, regarding all international law as derivative of the one legal system one starts from. Even though he associates the ideology of pacifism with the primacy of international law and imperialism with the 37   This is, however, the implicit narrative underlying recent scholarship on global constitutionalism. See Jeffrey L. Dunoff and Joel P. Trachtman, eds, Ruling the World? Constitutionalism, International Law and Global Governance (Cambridge: Cambridge University Press, 2009). 38   Koskenniemi has analysed the development of international law as a dialectics of apology and utopia. See Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Finnish Lawyers’ Pub. Co., 1989). There are, however, more ideological struggles pervading international law, struggles over de-​colonialization, between Eastern and Western blocks, and last but not least, the apparently never-​ending question over the status of Israel. 39   See Kelsen, Pure Theory, pp. 328–​44. 40   Hans Kelsen, Principles of International Law (New York: Rinehart, 1952), pp. 417–​18.

672    sources and the normativity of international law primacy of national law,41 he makes clear that the choice of hypotheses cannot be determined from the point of view of the Pure Theory. Thus, according to Kelsen, the normativity of sources boils down to a presupposition aimed at retaining the possibility of a unitary perspective.

c. Modifications The crucial question regarding this construction is not whether Kelsen failed to provide moral or political foundations for international law, as this would not be his concern anyway. The question is rather whether Kelsen has in his treatment of international law given up or unduly neglected some aspects of his theory, and whether a slight re-​accentuation would provide a more nuanced view regarding the sources of international law. Previously, we have seen that Kelsen develops a post-​ Nietzschean culture-​ dependent account that serves as an ideology critique and stresses the precarious state modern legal systems and the scientific, value-​free theory occupy: legal systems can come under undue influence of other systems and theory can dissolve into moralism or ‘sociolgism’. However, in his writings on international law, Kelsen no longer separates the various levels very clearly. At times, he seems to assume that national and international law must be organized hierarchically to be perceivable as one normative system, and that a theory describing or reflecting them must be unified and normative in the same sense. To put it differently: recognizing at any point a plurality of legal systems would endanger the autonomy of the legal system and of the theories describing them. However, observing the workings of legal systems (including self-​description) and constructing a higher-​level theory about this complex are different projects that need not be unified for logical reasons. The example of the Polish government in exile might clarify this point. Its continuing existence was a normative practice, even though it was reduced to a mere secretariat. The reason that it can be regarded as a legal system all the time and not as a mock government is that it was at least acknowledged by some governments as the legitimate government of Poland, thus it had some links to the dominant legal system. However, these governments had ways of dealing with the government of the People’s Republic at the same time. Thus, ‘logical contradictions’ (there cannot be two governments of Poland at the same time) do not preclude the workings and interrelations of legal systems. The overall, or dominant, legal discourse was in any case not affected by this small aberration at the edges. This short description also included two theoretical concepts that can be used to complete Kelsen’s account:  ‘linkage norms’ and the ‘dominant legal discourse’.42

 Kelsen, General Theory, pp. 386–​9.   For a more extensive discussion, see Detlef von Daniels, The Concept of Law from a Transnational Perspective (Aldershot: Ashgate, 2010), pp. 141–​68. 41

42

detlef von daniels   673 Linkage norms are those norms that purport to establish the unity or disunity with legal systems that are as a matter of fact separate. They are, however, not necessarily bi-​directional, but can also fail, so that the government in exile purports to legitimize the Polish government but fails in the perspective of the other. The dominant legal discourse that reflects these practices is therefore not unified, but is more like a network that has some centre points, usually the major States, but also some subdued discourses that subsist at the edges. Unlike Kelsen’s premises, securing the unified logic or consistency without contradictions is not a function of the discourse; it is rather the other way around: the law allows to keep up commitments despite contradictions and enables political coordination at the same time.43 Still, there is a place for something like a Pure Theory of Law. It can still observe the legal practice, the dogmatic and philosophical reasoning, and serve as an ideology critique, pointing out when and how a legal practice dissolves into some form of mythical thinking and showing how moral and legal theory try to ignore the post-​foundational philosophical stance. The reason Kelsen’s theory is, with some modifications, especially suited to this end is that it is aware of the historicity of law and legal theory and can allow for systematic variations in the ways of thinking about law.

IV.  Hard Cases for a Kelsenian Perspective When extending the Kelsenian perspective on normativity further regarding contemporary practices and discourse on the sources of international law, three hard cases can be singled out that might appear to question the adequateness of the account, or even call for a different approach. General principles might appear to be a venue to include moral values into the law, soft law might appear to extend regulations beyond strictly legal forms, and practical reasoning might appear to be the more appropriate focus of legal theory. Therefore, these three problems will be discussed in turn to show how the Kelsenian perspective features in contemporary disputes.

43   Another famous example is the relation between the Federal Republic of Germany and the German Democratic Republic. The later was officially never recognized by the Federal Republic; still, peaceful relations were possible and conflicts were reduced to the level of symbols.

674    sources and the normativity of international law

1. General Principles According to Article 38 (1) (c) of the Statute of the International Court of Justice,44 ‘general principles of law recognized by civilized nations’ are a source of international law. They are usually seen as principles that are derived by way of a comparative analysis, generalization, and synthesis of rules of law common to various systems of national law.45 At face value, this provision might appear to run counter to Kelsen’s line of thought, as this way, scholarly opinions, which are in international law inevitably clothed in humanitarian language,46 become a source of law. Moreover, as scholarly writings are a way of reasoning, even Kelsen’s basic explanation of law—​an act under a scheme of normative interpretation that goes back to the ‘ought’ of a basic norm—​seems to miss the central aspect of law, namely to guide behaviour by giving a specific kind of reason. Even though the provision of Article 38 (1) (c) is only one specific case, it might be a case that unravels the whole approach from the beginning to the end. Kelsen does not include any doctrinal discussions in his Pure Theory, but deals with the provision of Article 38 (1) (c) only in his Principles of International Law and his (posthumous) Allgemeine Theorie der Normen (General Theory of Norms).47 Instead of granting the scholarly community a special role, he develops a very restrictive reading and writes that principles are ‘norms which become international law applicable before the International Court of Justice, because Article 38 (1) (c) authorizes the International Court of Justice to apply them’.48 Still, one might argue that principles must have a normative quality before they are applied, as otherwise, the provision would empower the Court to apply whatever it considers to be convenient. A traditional solution would be to postulate a specific means of constructive comparative interpretation that enables the scholarly community to recognize new norms.49 The problem of this solution from a Kelsenian perspective is that these would be norms of a different kind, namely norms that have their ultimate foundation not in the will of some person or group of persons, but in some form of practical reason on its own.50 Kelsen’s solution, on the other hand, reduces the principles to the lex arbitrari, thus to norms that   Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993).   See Alain Pellet, ‘Article 38’, in Andreas Zimmermann, Karin Oellers-​Frahm, Christian Tomuschat, and Christian J. Tams, eds, The Statute of the International Court of Justice. A Commentary, 2nd edn (Oxford: Oxford University Press, 2012), 731–​870, 832–​41. 46   For some, this is a mirror of how things are: legal argumentation is a special case of moral argumentation. For others, this is a phenomenon that needs explaining. See Jeremy Waldron, ‘Judges as Moral Reasoners’, International Journal of Constitutional Law 7 (2009): 2–​24 and Koskenniemi, From Apology to Utopia, pp. 513–​15. 47   Hans Kelsen, Allgemeine Theorie der Normen, eds Kurt Ringhofer and Robert Walter (Vienna: Manz, 1979). 48 49  ibid., p. 99.   See e.g., Pellet, ‘Article 38’, pp. 766–​7. 50   An additional problem is that according to Kelsen, norms must be sanctioned. 44 45

detlef von daniels   675 are applicable only to the case in question, similar to norms that are applied by arbitration tribunals.51 The downside of this solution is that Kelsen must deny against the wording of Article 38 (c) (1) that general principles are a ‘proper’ source of international law. Indeed, he is even sceptical whether there is anything like an objectively determinable opinio iuris, but suggests that the opinio iuris requirement serves no other purpose than to conceal the role played by the judge in the creation of customary law.52 The consequence of Kelsen’s account that stresses treaty and universal customary law above all might appear to be old-​fashioned and overcome by newer developments in international law and therefore dismissed by contemporary legal theory. However, when the aim is to develop a general legal theory that accounts for both legal practice and legitimizing theories, Kelsen’s perspective is still helpful. It highlights the fact that all States consider carefully their consent to treaties and monitor developments in international customary law in case they want to uphold certain persistent objections. However, in theoretical and academic debates, opinions from many States are hardly present at all. Kelsen’s perspective helps to understand this practice as it shows how the legal point of view can be understood independently from moral appraisal in scholarly debates.

2. Soft Law However, one might think that Kelsen still runs into the problem of accounting for recent legal practices States are also involved in, which can be captured under the title of soft law. This refers to the observation that especially in international law, declarations of the UN General Assembly, recommendations of reports of monitoring bodies, or expert views are freely used both in legal practice and scholarship. Having these developments in mind, Matthias Goldmann argues for a broader view of sources in terms of public international authority.53 He proposes to develop a perspective that includes all possible ways of governance and then singles out the normative attractive ones as legitimate. However, from a Kelsenian perspective one would first call for a clear distinction between resources that might influence decisions and the normativity of law. The point is not to deny that the process of attaining a decision is a creative act, in which officials at every level take part 51   On the details of this solution, see Jörg Kammerhofer, ‘Hans Kelsen in Today’s International Legal Scholarship’, in Jörg Kammerhofer and Jean d’Aspremont, eds, International Legal Positivism in a Post-​Modern World (Cambridge: Cambridge University Press, 2014), 81–​113 and his ­chapter 16 in this volume. 52   See Hans Kelsen, ‘Théorie du droit international coutumier’, Revue internationale de la théorie du droit 1 (1939): 253–​74. 53   See his ­chapter 21 in this volume.

676    sources and the normativity of international law using a variety of means, but to distinguish between influences, of which there may be many, and the origin of normativity. Kelsen constantly asks the latter question. Insisting on the distinction between the grounds of normativity and influences on decisions does not mean, however, that it is ‘conceptually’ impossible that declarations of the General Assembly or any other kind of soft law might become an official source one day. However, this would require that these ‘new sources’ are explicitly empowered as mechanisms to change the law (like a legislature in a State) so that the source can be clearly determined and held accountable. In addition, a Kelsenian perspective would urge to ask ideology-​critical questions regarding the place and function of legal scholarship. The idea of developing an ‘all-​embracing perspective’ is, given the actual differentiation of various sciences, at risk of becoming a scholarly mishmash. Indeed, the ‘normative attractive picture’, which is promised, shows that the scholar himself wants to become the authoritative source. The obvious ideology-​critical question is: ‘Which scholar, and why this one?’ A possible way to rebuke this question would be to refer not to an individual’s opinion, but to the outcome of a practical discourse or to practical reasoning in general.

3. Practical Reasoning We have seen that the question of the normativity of law can be addressed from a Kelsianian point of view that draws on neo-​Kantian philosophy and a post-​ Nietzschean historical awareness. However, one might turn the table and regard these philosophical underpinnings not as a strength but as a weakness of Kelsen’s account. Far from serving as an ideology critique, one might argue, it is itself an expression of a mystifying perspective, namely a blind faith in ‘pure’ science. As a theoretical alternative, one could point out that a more empirically minded approach allows one to analyse law in terms of exclusionary albeit prima facie reasons for action.54 Once the common-​sense perspective on practical reasons is established the only remaining question is how the relation between different kinds of reason is to be seen, and whether the meaning of normative language in law and morality differs (as Hart held) or whether a theory of law can be seen as a part of a theory of practical reasoning in general (as Joseph Raz proposes). Taking up this lead, Nicole Roughan holds that normativity in general entails justifying reasons,55 which means in the case of law that it needs to be morally valuable qua legally valid rule. She then argues that sources can generate valid norms and thus contribute towards the normativity of law. However, full normativity requires in addition that   See Joseph Raz, The Authority of Law (Oxford: Oxford University Press, 1979), pp. 19, 223–​4.   See her ­chapter 32 in this volume.

54 55

detlef von daniels   677 the norms emerging from the sources of law support a deep justification for having international law. In the case of treaty law, this requires showing that it is procedurally and substantially valuable, in case of customary law that it has aspirational qualities. Thus, in Roughan’s account, full normativity is not a quality of law but an additional attribute that is later bestowed on the law by the academic community. Since she does not name the procedural and substantial values the law is to achieve, one might assume that the meta-​ethical idea of practical reason suffices to determining them. From a Kelsenian perspective, one would first question the very notion of practical reason. If practical reason finally comes down to some instrumental reason, even it if is instrumental to some valuable end (helping the widows and orphans), it is still an instrumental reason but does not show that pure practical reason exists, i.e. that people can act out of respect for the moral law. This is, of course, a Kantian way to put the question; it is, however, a good reminder of what is at stake when discussing practical reasons. Kelsen did not buy into Kant’s moral theory that purports to show that pure practical reason exists. Consequently, he saw norms as depending not on reason but on a will or some ‘ought’ that cannot be ultimately justified. (Helping the widows and orphans is obligatory only when presuming the value judgement one ought to do this.) For Kelsen, the starting point of law is not a reason but an act that is interpreted in a specific way: Romulus builds a wall and says this is a city wall and my killing is a sanction. There is no ultimate reason that can justify this act to all others, as otherwise the sanction would be unnecessary. In addition, Kelsen’s account highlights that the Razian perspective misses a level of reflection that is crucial for understanding the modern, post-​Nietzschean world. There is not just ‘the law’ as imagined by legal philosophers and ‘theories’ about it, as if ‘the law’ were an ever-​present thing, but modern bureaucratic law and in particular international law is a precarious historical achievement. Thus, the subject matter, including the accompanying theories, are themselves evolutionary developments, which need to be accounted for. Assuming a ‘nature’ of law does not help,56 as one would have to give an historical explanation for the relation between discovery of the true and universal nature and its defective understanding by all previous generations of philosophers. This is the situation to which Kelsen reacted. As he is aware of the precarious state of law and legal theory, his account is post-​ Nietzschean or post-​foundational without ending up in total scepticism regarding normative language.

56   Joseph Raz writes: ‘[t]‌he point to note is that it is our concept which calls the shots: other concepts are concepts of law if and only if they are related in appropriate ways to our concept’. Joseph Raz, Between Authority and Interpretation:  On the Theory of Law and Practical Reason (Oxford:  Oxford University Press, 2009), p. 32.

678    sources and the normativity of international law

V. Conclusion The question of the normativity of the sources of international law inevitably leads into philosophical discussions. However, philosophy is only helpful for reflecting on fundamental questions if it is not itself restricted to certain premises such as the ones of analytical jurisprudence. The Kelsenian account helps to overcome these restrictions as it is grounded in a long-​term historical and philosophical perspective. Therefore, it encourages also typical ideology-​critical questions, albeit not from an external historical or sociological perspective, but from within. For this reason, it is likewise possible to take up the discussion with dominant approaches in jurisprudence and legal theory while still retaining a more comprehensive perspective. The account of normativity Kelsen gives, a presupposition required for retaining an autonomous domain of law and legal science, is thus not simply an alternative definition, but a way of becoming aware of a more comprehensive worldview. Formulated as research questions, the account invites us to ask some fundamental questions. Is it possible to conceive the (national and international) law as an autonomous and unitary system? Which actors are ultimately relevant for determining international law? Last, but not least, what is the role of legal theory and philosophy in this process? By doing so, the account does not simply add another ‘philosophical’ layer to the existing body of positive law, but incites a critical self-​reflection.

Research Questions • Can ‘mystifications’ also be found in current moral and social perspectives on law? • Can actual State behaviour and theoretical practices be accounted for together in a theoretical perspective?

Selected Bibliography Bertea, Stefano, and George Pavlakos, eds, New Essays on the Normativity of Law (Oxford: Hart, 2011).

detlef von daniels   679 Fastenrath, Ulrich, ‘Relative Normativity in International Law’, European Journal of International Law 4 (1993): 305–​40. Kammerhofer, Jörg, Uncertainty in International Law. A  Kelsenian Perspective (London: Routledge, 2011). Kelsen, Hans, Principles of International Law (New York: Rinehart, 1952). Kelsen, Hans, Pure Theory of Law, trans. from the 2nd edn, Max Knight (Berkeley: University of California Press, 1967). Weil, Prosper, ‘Towards Relative Normativity in International Law?’, American Journal of International Law 77 (1983): 413–​42.

Chapter 32

SOURCES AND THE NORMATIVITY OF INTERNATIONAL LAW FROM VALIDITY TO JUSTIFICATION

Nicole Roughan*

I. Introduction To analyse the relationship between normativity and the sources of international law is to unite two fundamental jurisprudential concerns into one complex inquiry, made more difficult by the international character of its object. Understood separately, sources of law are concrete manifestations of criteria for legal validity, while law’s normativity is the characteristic in which law, however it is made, can obligate or at least guide its subjects. Together, a discussion of normativity and the sources of *  This chapter was prepared with the research assistance of Ryan Hong and Bryan Ching, and supported by a Start-​Up Grant from the National University of Singapore. I am grateful to the editors, to Detlef von Daniels, and the other participants in the authors’ workshop for their comments and feedback. All errors remain my own.

nicole roughan   681 international law can thus be approached as an examination of the extent to which different sources of valid law can either generate or carry law’s normativity. Why discuss normativity in a project on the sources of international law? The topic of normativity offers a kind of demarcation point for work in general legal theory, in which a characteristic kind of normativity is often used to distinguish legal from other social practices, including political practices. Normativity is also crucial to thinking about how law is made, used, practiced, and evaluated by those who are the officials and subjects of the legal system. Yet in international law, both the demarcation and the practical questions pose difficulty. Many of the most familiar debates about the legality of international law, and its deficiencies, are fundamentally concerned with the extent or degree to which international law is normative. For instance, as compared with municipal law, international legal norms may seem less clearly demarcated as norms rather than political practices; and the use, application, and internalization of norms may seem less stable or less robust, with greater diversity in the breadth of normativity and its associated hierarchies among different sources of law. Although the connection between normativity and sources of international law poses a general challenge for international legal theory, it is most often addressed in analyses of specific sources of law, exploring such questions as what, if anything, makes treaties binding on parties; or what makes customary international law binding on all but persistent objectors. What is the normative status and of general principles, decisions of international courts and tribunals, and juristic opinions, and are these best understood as sources? Rather than take up those questions again, this chapter considers the role that sources of law, as manifestations of criteria for legal validity, can have in establishing or generating law’s normativity.1 The chapter’s core claim is that full normativity—​in which law can obligate those to whom it is directed—​is not coextensive with legal validity; rather, it turns upon a combination of substantive and procedural values. The sources of international law, therefore, can contribute towards international law’s full normativity only if they carry forward procedural values that respect the autonomy and responsibility of those who are subject to the law. In addition, full normativity requires that the norms emerging from the sources of law must themselves be substantively (morally) valuable. In section II: ‘What is Normativity?’, the chapter offers an account of normativity which takes positions on those key controversies relevant to exploring the role of sources of law. Section III: ‘The Normativity of Law’ then explores contending theories of the normativity of law in general (including international law), while section IV: ‘Full Normativity: Law’s Deep Justification’ considers the conditions under which law’s deep justification can support the possibility of full normativity. Armed with that   In this respect, the inquiry has a rich pedigree; see e.g., Oscar Schachter, ‘Towards a Theory of International Obligations’, Virginia Journal of International Law 8 (1968): 300–​22. 1

682    sources and the normativity of international law account, section V: ‘The Normativity of International Law and the Role of Sources’ then offers an analysis of the normativity of international law that is sensitive to the special structure of international law, the legitimate authority it can have, its deep justification, and the role of sources in carrying values to support full normativity. Finally, section VI: ‘How Do Specific Sources Measure Up?’ concludes with specific accounts of the normativity-​generating potential of treaties and custom, using those two leading sources of international law as case studies for the deployment of the full normativity account.

II.  What is Normativity? Most simply, normativity means having the character of a norm—​a rule of some status or other—​which purports to guide or regulate conduct, making it mandatory, prohibited, permitted, or recommended. A norm has two integrated characteristics: it both sets a standard and (thereby) gives subjects a reason for action, or at least structures their deliberation about what they should do.2 To treat a practice, system, or rule as normative, then, is to treat it as both determining the status of its subjects’ conduct, and affecting their reasons for action. Conceiving of normativity as a matter of standards and reasons, however, does not tell us anything about the sort(s) of standards and reasons a norm offers its subjects, or the possibility of different types or degrees of normativity. A loose conception of normativity would treat it as the characteristic of guiding those to whom a norm is addressed, generating both reasons in favour of doing what the norm requires and a standard which operates as a recommendation. A strict conception, in contrast, treats normativity as the quality of bindingness; the generation of obligations upon subjects and the determination of the status of their conduct as mandatory, permissible, or prohibited.3 2   That twofold character is sometimes elided by theories which explain normativity as the giving of reasons, or obscured within a debate over whether norms really do give reasons for action, or merely structure practical reasoning in some other way. See analysis from David Enoch, ‘Reason-​Giving and the Law’, in Leslie Green and Brian Leiter, eds, Oxford Studies in Philosophy of Law:  Volume 1 (Oxford: Oxford University Press, 2011), 1–​38. Compare Christopher Essert, ‘A Dilemma for Protected Reasons’, Law and Philosophy 31 (2012): 49–​75. 3   Note that this distinction only arises in accounts (such as Raz’s) which treat bindingness as a something other than the creation of ‘weighty’ reasons for action. Otherwise, there would be no clear distinction, only a difference of degree. See Joseph Raz, Practical Reason and Norms, 2nd edn (Oxford: Oxford University Press, 1999), pp. 35–​48. Note also that a binding reason is not the same thing as a conclusive reason. A binding reason might be overridden by facts and/​or circumstances

nicole roughan   683 That distinction is not entirely satisfactory, in part because a rule might be thought to guide a subject because it binds that subject. When it comes to consider normativity in international law, furthermore, to ignore subjects’ motivations would be to ignore much of the point of so-​called realist accounts of international law, in which State subjects’ political motivations may conflict with any motivations to comply with legal obligations. It would also ignore accounts of the opposite phenomenon, in which the perceived legitimacy of an international obligation may exert a motivational pull upon States.4 International law’s motivational pull, however, is at best variable, so that law motivates some subjects and not others; often unfairly. For the purposes of this chapter, the controversies over the relation between motivation and normativity are inescapable but not fundamental. I will therefore use the distinction between guiding and binding normativity, noting that there may be subjects who are guided by their binding obligations, but not assuming that to be the case, particularly for State subjects of international law. More basic than the distinction between guiding and binding normativity is the notion that normativity entails justificatory reasons, not explanatory reasons.5 Justificatory reasons are reasons that justify an agent’s conduct, rather than reasons that explain why someone acts as they do. To treat law as normative, then, is to think it contains reasons of this justificatory sort, and importantly, it is to conceive of normative standards and reasons as phenomena that only arise if they are justified. This conception of normativity reclaims its two features of reasons and standards even as its integrates those features, for to conceive of normative reasons as justificatory reasons we need to link reasons to standards so that there is a standard against which reasons can justify specific conduct. The justificatory/​explanatory distinction, however, reveals that there seems to be no way to explain normative phenomena without tautologically referencing a normative world of ‘ought’, in which people are subject to reasons and to normative judgements about right and wrong. Such a reference, however controversial, is sociologically defensible. It is supported by evidence that people in social interactions do in fact treat themselves and others as inhabiting a world of ‘ought’, in which they generate, assign, and apply standards to judge their own and others’ conduct.6

that make it inapplicable or outweighed in a specific case, so that any departure from what the subject is bound to do is either justified or excused. See Raz, Practical Reason and Norms, pp. 27–​8, on conclusive reasons for action.   See e.g., Thomas Franck, ‘Legitimacy in the International System’, American Journal of International Law 82 (1988): 705–​59. 5  On the distinction, see William Frankena, ‘Obligation and Motivation in Recent Moral Philosophy’, in Abraham Melden, ed., Essays in Moral Philosophy (Seattle: University of Washington Press, 1958), 40–​81. 6   This is what sociologists and anthropologists of law describe, for instance, in their analyses of distinct non-​state legal systems. See e.g., Brian Tamanaha, A General Jurisprudence of Law and Society (Oxford: Oxford University Press, 2001). 4

684    sources and the normativity of international law A look at social practices can thus sustain the idea of normativity through the presence of such ‘normative practices’ or indeed normative social practices.7 A second starting controversy asks whether normativity is a general, unitary phenomenon, or whether it is always relative to a specific domain, and thus pluralistic. For instance, one conception of law’s normativity treats law as one among many domains of normativity. Alternatively, normativity may be regarded as a singular, general, and universal quality, not relative to a domain but a sort of gold standard of standards.8 In that sense, to identify a standard as normative in one domain means the same thing as it does in other domains, despite the very different content, functions, or character those domains (and their norms) might otherwise entail. This difference sets up the central puzzle of explaining the normativity of law—​including international law.

III.  The Normativity of Law To explain the normativity of law requires examination of three divisive topics: what kind of normativity law carries—​guiding normativity or binding normativity; the isolation or integration of law’s domain vis-​à-​vis both morality and social practice; and the conditions under which law can be normative at all. First, the distinction between guiding and binding normativity. Notwithstanding the value of some of the more technical arguments offered by Raz and others, the question whether law’s normativity entails obligations or guidance may be best addressed sociologically. The conception of normativity as ‘mere’ guidance would be both too broad and too weak to capture how lawyers, officials, and subjects conceive of the normativity of law practices. In the municipal law of modern States, these participants understand themselves (and each other) to be subject to norms, and judge their conduct to be right or wrong by reference to those norms. Importantly, even those who repudiate their own subjection tend to rely on the   Elsewhere I have argued that there is also evidence of differentiation between normative practices of different kinds or degrees, such that people individually and socially tend to distinguish between what they are bound to do, following an authority, and what they are influenced to do. See Nicole Roughan, ‘From Authority to Authorities: Bridging the Social/​Normative Divide’, in Roger Cotterrell and Maksymilian Del Mar, eds, Authority in Transnational Legal Theory: Theorising Across Disciplines (Cheltenham: Edward Elgar, 2016), 280–​99. 8   For a detailed account of the general v specific orders of normativity, see George Pavlakos, ‘Law, Normativity and the Model of Norms’, in Stefano Bertea and George Pavlakos, eds, New Essays on the Normativity of Law (Oxford: Hart, 2001), 246–​80. For an analysis of the generic normativity of law, see e.g. Gerald Postema, ‘Norms, Reasons and Law’, Current Legal Problems 51 (1998): 149–​79. 7

nicole roughan   685 structure of guarantees and rights that the law gives them, in ways which demonstrate their belief that the law binds others, and is not merely a matter of guidance. Law is clearly treated as normative in that sense, while other guiding practices, such as giving advice or seeking to alter behaviour through influence and persuasion, are not. This raises an obvious question whether the same distinction is observable in the practices of participants (officials and subjects) in international law. Familiar debates arise over the extent to which subjects and officials see themselves and each other as bound by international law; the de-​motivational impact of ineffective or absent norm-​enforcement; and the prospect of a more porous border between legal and political practices, manifested in the idea of ‘soft law’.9 All of these may count against any reading of international law as a practice of binding normativity, not because they derail some analytical account of what makes law ‘law’ (for analytical jurisprudence can offer responses to these concerns with just a little effort); but because they could undercut any sociological practice of distinguishing obligations from recommendations. Here there seems, however, to be a difference in degree, but not in kind: international law may feature fewer practices that are treated as binding, and more that are not, relative to municipal law; but the distinction itself survives. Even in international law, there is still a normative social practice in which participants use standards both as justifying reasons for their (and others’) actions, and as determinations of the status of specific types of international and domestic conduct.10 Turning then to the second set of questions: is law’s normativity continuous with some form of social normativity; does law’s normativity inhabit part of a moral domain of normativity; or is there some special, technical, and separate ‘legal’ normative domain? One answer to these is familiar from Hartian (and earlier) legal positivists, for whom law’s normativity is coextensive with legal validity as determined by social practices or rule-​following. Hart himself famously required that legal officials must see themselves and other officials as bound by the rule of recognition, and later accounts have sought to ground Hartian normativity in the 9   Christine Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’, International and Comparative Law Quarterly 38 (1989): 850–​66. 10   Such accounts are most extensively explored in analyses of the authority of customary international law. See e.g., Gerald Postema, ‘Custom in International Law:  A  Normative Practice Account’, in Amanda Perreau-​Saussine and James B. Murphy, eds, The Nature of Customary Law (Cambridge: Cambridge University Press, 2007), 279–​306; Postema, ‘Custom, Normative Practice and the Law’, Duke Law Review 62 (2012):  707–​38. See also Allen Buchanan and Robert Keohane, ‘The Legitimacy of Global Governance Institutions’, Ethics and International Affairs 20 (2006): 405–​37, on normative v sociological accounts of legitimate authority; and for a discussion of that literature in relation to institutional authorities, see Jean d’Aspremont and Eric De Brabandere, ‘The Complementary Faces of Legitimacy in International Law: The Legitimacy of Origin and the Legitimacy of Exercise’, Fordham International Law Journal 34 (2011): 190–​235.

686    sources and the normativity of international law conventional, joint, or committed practice of those officials.11 What matters, in these accounts, is not the actual existence of an official obligation, merely their practice in accordance with a belief that one exists. That is a matter of social fact, which separates law’s normativity from any broader moral domain of normativity, but reconnects it with the social fact of a convergent rule-​following practice among officials, which is itself treated by those officials as normative. In contrast, there are versions of positivism and non-​positivism which offer an affirmative answer to the second option set out above, in which normativity is a generic moral phenomenon that cannot be cabined off into separate isolated domains. So, for Raz, as for Jules Coleman, Scott Shapiro, and others, ‘ought’ always means ‘moral ought’; there is no such thing as a domain of special ‘legal normativity’, only normativity in this moral sense, to which law lays claim and can aspire.12 The third contending theory is the one Detlef von Daniels discusses in ­chapter 31 in this volume, namely Hans Kelsen’s view that law’s normativity neither arises out of social facts, nor depends upon some moral quality.13 For Kelsen, the normativity of law is ‘pure’, and autonomous of both social facts and morality. It is a logical predicate or a transcendental hypothesis, without origin or content. Law is normative, for Kelsen, from within, so that law’s domain is isolated and its normativity is contained. Rather than adjudicate between these views, the point here is to explore the implications of these different accounts of normativity for theorizing a connection between normativity and the sources of law. Von Daniels’ detailed account of the implications and necessary modifications of Kelsen’s view reveals that such pure normativity is somewhat orthogonal to the study of the role of sources of law. In distancing the normativity of law from social facts about the making or application of law, the account seems unable to explain how law gets made, or more abstractly, how to get from logical normativity back to the practice of legal normativity.14

  For leading explanations of this account, see e.g. Gerald Postema, ‘Coordination and Convention at the Foundation of the Law’, Journal of Legal Studies 11 (1982): 165–​203; Neil MacCormick, Institutions of Law (Oxford: Oxford University Press, 2007) and Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford: Oxford University Press, 2001). 12   The more aspirational theories sharing this approach include Lon Fuller, Ronald Dworkin, and Nigel Simmonds, though there are important differences between these accounts and those listed above. See Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964); Nigel Simmonds, Law as a Moral Idea (Oxford: Oxford University Press, 2007). 13   Hans Kelsen, Pure Theory of Law, trans. Max Knight (Berkeley: University of California Press, 1967). For an analysis, see Stanley Paulson, ‘A “Justified Normativity Thesis” in Kelsen’s Pure Theory of Law?’, in Matthias Klatt, ed., Institutionalized Reason: The Jurisprudence of Robert Alexy (Oxford: Oxford University Press, 2010), 61–​111. 14   For a detailed critique of Kelsen’s ability to explain law-​making, see Sylvie Delacroix, Legal Norms and Normativity (Oxford: Hart, 2006); Paulson, ‘A “Justified Normativity Thesis” ’ on methodological critiques; and see Veronica Rodriguez-​Blanco, ‘Does Kelsen’s Notion of Legal Normativity Rest on a Mistake?’, Law and Philosophy 31 (2013): 725–​52. 11

nicole roughan   687 To explain how law can be normative requires an account of law’s normativity as it is practiced, not presumed. The contribution made by Hart’s account, in contrast, lies in the opposite direction. In describing a social (official) practice in which there are recognized sources of law which generate valid legal norms, Hart describes institutionalized law as a social practice that is the kind of thing that can be made deliberatively, consciously, and reflectively, even if it rests on customary foundations. In a sense, Hart has taken the logical postulate of Kelsen’s normativity, and recast it as a disposition or belief of those who happen to be legal officials, at the same time as anointing their practice of treating certain processes as sources of valid law-​making. On this account, whatever sources of law are in fact treated by officials as generators of valid law have the function of carrying whatever normativity (if any) can be generated by that practice. Such a Hartian view matches many doctrinal accounts of the sources of international law, in which sources are generators of both validity and normativity. However, Hart’s story only gets as far as delineating and describing a social practice in which officials treat their creations as normative (for themselves and others). The obvious problem is that a sense of obligation is not itself a source of obligation.15 Even if legal normativity were treated as a subset of a social domain, in which the practice of officials could generate some special limited kind of normativity equated with validity, the mere practice of thinking that such limited normativity exists does not make it so. What is needed is a justification for the way in which legal officials use sources of law to determine what counts as valid law which is then applied to subjects. Sources of law may stand alone as determinants of validity, but crucially, they do not stand alone as generators of normativity.16 For a practice to be fully normative, then, it must first be practiced, but it must also be justified; i.e., it must be sufficiently valuable as a normative practice.17 The implications of that argument are that the study of the connection between normativity and the sources of law cannot just be about validity, or about examining the ways in which officials engage in some conventional practice of recognizing particular processes (treaty making, custom formation, etc.) as sources of valid law. Instead, the study of sources and normativity together must be, at least in part, about the values that are embodied in or generated through law-​making processes, 15   This point is fundamental to most interpretations and critiques of positivism. See e.g., Dan Priel, ‘Towards Classical Legal Positivism’, Virginia Law Review 101 (2015): 987–​1022. 16   This all suggests, not incidentally, that Raz and others who treat normativity as just one generic phenomenon have the better of that argument, because it seems normativity is just the sort of thing that is justificatory. People cannot wish normativity upon themselves and their practices; it arises only when it is justified. 17   Michael Bratman, ‘Reflections on Laws, Normativity and Plans’, in Stefano Bertea and George Pavlakos, eds, New Essays on the Normativity of Law (Oxford:  Hart, 2001), 73–​85 (responding to Shapiro in the same volume).

688    sources and the normativity of international law and the role these play in an overall justification for law. We need to examine the conditions under which official practices of treating these processes as sources of law are justified, not just observe the fact that the practices exist.

IV.  Full Normativity: Law’s Deep Justification What is needed is an account of law’s normativity which includes a justification for ‘why we play the law game’ at all.18 The normativity of law must be linked to the normative questions of legitimacy and justification at the foundational level. One ready account, and that favoured by strongly non-​positivist approaches, holds that the justifications for officials’ practices in making, applying, and/​or enforcing law are directly conditional upon the law having justified moral content. That approach, however, is met jurisprudentially with one of several responses: what if there can be no (or no uncontested) assessment of whether a law’s content is morally justified? How could such an assessment take place, and by whom? Part of the deep justification for law lies in its suitability for ordering social life even in contexts of such moral disagreement or doubt.19 Additionally, or alternatively, to condition legal normativity only on law’s substantive moral content seems to make law itself redundant. The account of law’s normativity instead needs to show not that some rule is morally valuable, but that it is morally valuable qua legally valid rule. This entails that there is some value, or potential value, in the form of law or law as a means, which may include law’s potential to provide norms that can: (i) coordinate or settle standards for public behaviour in circumstances where morality is silent or where moral values are equal, incommensurable, or reasonably contested; (ii) crystallize and/​or create moral obligations, and express them in ways that are salient, public, clear, consistent, or otherwise in conformity with the rule of law; (iii) introduce enforceability, through institutional mechanisms for the application and enforcement of rules, or otherwise encourage subjects to rely upon each other’s conformity with their duties; and/​or (iv) engage subjects of norms in processes of deliberation upon those norms, including processes to which subjects can commit themselves voluntarily in order to have a say in choosing the content of the norms by which they will be governed.

  Bratman, ‘Reflections on Laws, Normativity and Plans’.   See e.g., Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999).

18

19

nicole roughan   689 The account of law’s full normativity, therefore, while somewhat cannibalizing an account of law’s substantively legitimate authority, also depends upon the values of the formal rule of law and law’s special procedural qualities. The resulting set of conditions for full normativity involves a combination of the two, wherein what is special about the normative social practice of law is that it is directed towards and claims moral normativity, through procedurally valuable and valid legal rules. The normativity of law is best explained not only by an account of law as a special institutionalized practice in which validity is used to demarcate a domain, but also with an account of the moral ideals to which laws made by such practices aspire.20 On the account defended here, law’s normativity is thus not a straight shot from its substantively legitimate authority. Normativity also requires a notion of validity which allows law to concretize obligations, adjudicate between equally or incommensurably valuable options, give salience and publicity to coordinative rules, and indeed to enhance compliance with the procedural values instantiated in the rule of law. In turn, how much value (and how much progress towards normativity) is carried by the idea of validity (as determined by sources of law) depends upon how valuable such validity is, i.e. the quality of the sources. A procedurally robust standard of validity, then, imbues substantively valuable norms with procedural propriety and value.21 There are thus both procedural and substantive elements to the normativity of law. The role of sources of law is confined to the procedural part of that story, but is not a matter of mere technical legal validity, rather includes values associated with the forms of law. Importantly, the most powerful role of sources of law in generating not just validity, but also normativity, arises when there are weaknesses in the substantive justification of a specific norm. More precisely, if the content of a norm is of equivocal value, perhaps due to equality, incommensurability, or neutrality of objective values to which the norm adheres, or due to subjective and reasonable disagreement about those values, then any procedural value carried by a law-​making process which is treated as generating a valid norm becomes critical to the realization of full normativity. One way of articulating the conditions of full normativity then, is as follows. First, two questions pertaining to validity: (i) Are there social and/​or institutional processes generating norms? (ii) Are those norms treated as valid by legal officials in the relevant regime(s)? This is followed by two questions about procedural value:   See e.g., Simmonds, Law as a Moral Idea.   Here, to emphasize the role of sources in pursuing procedural values, I separate the procedural and substantive elements of legitimate authority, though I have elsewhere set out their conjunctive relationship. See Nicole Roughan, Authorities: Conflict, Cooperation, and Transnational Legal Theory (Oxford: Oxford University Press, 2013), pp. 125–​35. 20 21

690    sources and the normativity of international law (iii) Are the valid norms sufficiently consistent with the rule of law? (iv) Do the law-​making processes carry some procedural value (such as the protection of subject’s autonomy through opportunities to deliberate, participate, or consent)? Finally, there are substantive value questions: (v) Do the norms have substantively authoritative content, to the extent that such authority can exist in respect of their subject matter? (vi) Is there a deep justification for the practice of treating norms made in such a process as binding? This is a simplification, and some of the obscured complexity is revealed when we turn to an analysis of normativity in international law, and the role of international law’s sources in that analysis. There are points of contention at every stage. In international law, with the prevalence of fragmented and self-​contained regimes rather than a unitary and general legal system, the practices determining validity are likely harder to identify, let alone attribute with value. Furthermore, it may be more difficult to offer the deep justifications for international law than it is for the law of more closely associative political communities. A normative case thus needs to be made to establish the normativity of international law. International law must be good for something, and it has to be good at whatever it is supposed to be good for. Only with an account of why international law is justified, which itself must be sensitive to what international law can do, and how valuably it can do it, can we then consider how well the different sources of law generate rules and legal institutions to enable international law to meet that justification. This means that sources of law must themselves be justified as law-​making processes, if they are to contribute to the full normativity of international law.

V.  The Normativity of International Law and the Role of Sources The above account can at last be used to explore the normativity of international law, and the role of the sources of international law in its generation. A focus upon international law highlights key contextual and conceptual factors which challenge the extent or characteristics of law’s normativity. This section first briefly raises some of the factors influencing the substantive legitimate authority aspect of normativity, many of which will be familiar and some of which are engaged by other

nicole roughan   691 discussions in this volume. It then examines the success of specific sources of international law in, first, generating norms that are legally valid, and, secondly, in carrying procedural values that can contribute to the deep justification for the practice of treating those norms as binding.

1. International Law’s Legitimate Authority and Substantive Justification I have argued elsewhere that international law’s claims to authority should be treated as claims to ‘relative’, interdependent authority, and that its legitimacy is conditioned by the relationships that exist between authorities in international legal regimes as well as with the State authorities they purport to bind.22 One of the drivers of the relative authority account is the peculiar structure of international law in which State subjects are, more often than not, officials and purportedly legitimate authorities over their own subjects.23 This much-​discussed feature changes the way in which we need to conceive of the way in which normativity operates in the international legal system, without changing the characteristics of normativity itself. To understand State authorities as being bound by international law, which they have often, though not always had a hand in making, and the authority of which has to be qualified by potentially competing imperatives of States’ duties to their subjects, we need to see both the international and State authorities as candidates for relative rather than independently legitimate authority. That notion of relative authority feeds directly into the account of international law’s normativity, without changing the characteristics of normativity itself. That is, international law still binds and gives reasons to its subjects if it is both procedurally and substantively authoritative, but the overall normativity of international law is qualified (though not necessarily reduced, and even potentially enhanced) by the relativity of its legitimate authority and the inter-​authority relationships in which it is engaged. The relative authority account thus affects the deep justification for the official practice of treating sources of law as generative of binding rules. That deep justification (the account of why we need international law, why it needs to bind, and why it needs to have both the qualities of substantive and procedurally legitimate (relative) authority), will look somewhat different from the justification of law in domestic  Roughan, Authorities, ch. 10, and ‘Mind the Gaps: Authority and Legality in International Law’, European Journal of International Law 27 (2016): 329–​51. 23   For analysis see Samantha Besson, ‘The Authority of International Law—​Lifting the State Veil’, Sydney Law Review 31 (2009): 343–​80, and Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–​85. 22

692    sources and the normativity of international law States and other contexts. The point of similarity, however, is that the deep justification must still be made by reference to the ‘ultimate’ individual subjects, not States as the immediate subjects of law.24 Starting with the substantive aspects: the need for coordination, adjudication of disputes, and cooperation remains strong,25 though these may be more urgent in some areas of international regulation and less urgent in others. The sheer scale of potential interactions among international actors, combined with the vast inequality of material and/​or political resources they have at their disposal, may be more intense than they are in many bounded State legal systems, as may be a lack of protection for the vulnerable that is supposed to be provided by coercive institutions’ capacity to enforce protective legal rules.26 There is thus potentially greater harm that international actors can do to one another and their subjects, combined with greater potential injustice in the management of their interactions.27 The deep justification thus looks different, but cases can be made that may be even more compelling than the justifications for domestic law. That deep justification, however, may be weakened by the much greater pressure on law’s normativity posed by other non-​normative domains of activity and the factual context of international law. International politics, combined with practical realities of constrained and unequal resource distributions, geographical distance or proximity, and difficulties of enforcement, all put pressure upon the role of law in generating any sort of order for the international community, let alone one which is justified.28 These pressures are all arguably greater for international law than they are for many (though unlikely all) State legal systems, and if their pressure is too great, they threaten to diminish the role of international law in international social life. Even if there is a deep justification for international law arising from a duty to cooperate in pursuit of a just order, for instance, there may be so much space between that deep normativity and the reality of international law-​making, application, and administration, that there is a real question whether a deep normative justification can persist all the way up to justify actual law. It is not enough for the   See Besson, ‘The Authority of International Law’.   See Hugh Thirlway, The Sources of International Law (Oxford:  Oxford University Press, 2014), which examines the nature of international organizations and non-​State actors as potential novel sources of international law. Thirlway also emphasizes the role of law as regulator of conflicting interests (pp. 13, 15). 26   On the limitations of international courts, see e.g. Belinda Cooper, ‘The Limits of International Justice’, World Policy Journal 26 (2009): 91–​101. 27  For an account of international law’s justice-​ enhancing justification, see Mattias Kumm, ‘Democratic Constitutionalism Encounters International Law:  Terms of Engagement’, in Sujit Choudhry, ed., The Migration of Constitutional Orders (Cambridge: Cambridge University Press, 2006), 256–​93. Other influential justifications for international law include Allen Buchanan, ‘The Legitimacy of International Law’, in Besson and Tasioulas, eds, The Philosophy of International Law, 79–​96. 28   See e.g., Nico Krisch, ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’, European Journal of International Law 16 (2005): 369–​408. 24 25

nicole roughan   693 justification to arise at the deepest level; it must hold on despite pressures it faces from its context, from competing values, and from the constraints imposed by its real-​world operation. Given the intractability of those factors, one way of meeting that challenge is to show that the processes of law-​making help to carry out or carry through the deep justification, both by responding to practical constraints and embodying ways of dealing with the pressures posed by non-​normative attacks on normativity.

2. International Law’s Validity: Sources to the Rescue? Armed with that (admittedly truncated) account of a deep justification for having international law, we still need an account of how actual international law carries (or could carry) the deep justification for international law. This requires not only checking whether international law’s substantive norms correspond to the pursuit of its deep justification, which is a topic not addressed here, but also that international law’s procedural values, carried largely by the practice of treating certain processes as sources of law, are sufficiently robust as to support rather than detract from the law’s substantive value. I have argued above that sources are part of that picture, but they are not stand-​ alone sources of normativity in the robust moral sense employed here. That argument may indeed be more easily accepted in international law than it is in domestic legal systems, because of international law’s familiarity and relative comfort with the idea of jus cogens, whose normativity is not tied to any particular source(s) from which norms emerge. Furthermore, it is common for norms made in one source to find their way into another, as in the pathway between specific treaty obligations to general customary obligations.29 That dissociation of norms from sources marks the power of the substantive element of normativity, yet also raises a potential doubt over the extent to which there really is a coherent practice of treating certain sources of international law as generative of binding rules. Is that practice widespread, consistent, and interactive enough to sustain the idea that international law is a normative social practice? Or is it the practice of a small and elite group of officials, from a select group of States, who selectively apply rules to subjects whose willingness and ability to evade enforcement weakens the overall prospect that there is a normative social practice at all? Those charges are often levelled at international law, and must be taken seriously here because a normative social practice only exists if it is indeed practiced, that is, if its standards are genuinely treated as normative by participants in that practice.   See e.g., Anthony D’Amato, The Concept of Custom in International Law (Ithaca: Cornell University Press, 1971), pp. 105–​66. 29

694    sources and the normativity of international law If we treat international law as a conglomeration of regimes and institutional orders, then it is evident that such criticism applies to some but not other parts of the conglomerate. Those most ‘successful’ or ‘effective’ international legal orders are indeed normative practices, and feature fairly robust evidence of particular sources of law being treated as constitutive of validity.30 Yet across regimes, and even sometimes within particular regimes, there is no single ‘doctrine’ of sources; rather, there are different practices of treating different processes as generative of legal rules, then different practices of treating those rules as binding.31 The fragmentation of regimes, then, extends no only to the plurality of sources of law, but also to the plurality of practices which treat different processes as binding.32 In turn, this means there are a number of distinct ways through which sources can generate valid norms and thus contribute towards the normativity of law. Sources of law can only make such contributions if they carry forward the deep justification for having international law. More precisely, there are two sets of standards to be met:  one is that the sources need to be able to generate norms that have the formal rule of law characteristics, and are identifiably valid. Secondly, they need to be the kinds of processes that could plausibly have legitimate authority. The specific sources of international law succeed to varying degrees on these fronts, and their success is not consistent across the range of different regimes. All face significant limitations; indeed, the procedural illegitimacy and/​or rule of law offences in much international law-​making are among the more well-​known critiques levelled at the field.33 Common complaints include that those affected by international legal rules are unequally and/​or insufficiently represented in the making of those rules; and importantly, that they can run counter to more procedurally valuable law-​making processes at State or regional levels. More precisely, these complaints can be grouped into three related concerns:  (i)  there is a democratic deficit in international law-​ making; (ii) international law fails to meet the formal standards of the rule of 30   Exactly how success and/​or effectiveness is measured is, of course, controversial. For the present purpose, a twofold distinction suffices:  effectiveness might be conceived as the formal property of congruence or compliance between law and behaviour, or it might be thought of as effectiveness in pursuing the law’s substantive goals. Note that the two may not go together. For a recent analysis of ways of measuring effectiveness of international courts, see Yuval Shany, Assessing the Effectiveness of International Courts (Oxford: Oxford University Press, 2014). 31   Besson, ‘Theorizing the Sources’; also see Michael Wood, ‘What is Public International Law? The Need for Clarity about Sources’, Asian Journal of International Law 1 (2011): 205–​16. See also Jörg Kammerhofer, ‘Uncertainty in the Formal Sources of International Law: Customary International Law and Some of its Problems’, European Journal of International Law 15 (2004): 523–​53. 32   This is particularly but not uniquely true of so-​called ‘self-​contained’ regimes. 33   For an organization of these critiques into a model of concerns about the ‘constitutional’ legitimacy of international law, see Mattias Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’, European Journal of International Law 15 (2004): 907–​31.

nicole roughan   695 law; and (iii) international law overrides legitimate domestic procedures with illegitimate international ones.34 If each of these complaints hit their mark, it would be difficult to see how the sources of law could contribute anything towards international law’s normativity at all, and indeed they might detract so far from normativity as to undercut much of any substantive justification that could be made out independently of the role of sources. Instead of adopting those critiques as reasons to end any discussion of normativity, however, there may be a more resuscitative approach to the value of international law’s sources. The first step is to treat procedural and substantive aspects of international law’s normativity as partially tradable attributes, so that procedurally problematic sources of international law might be excused so long as their substantive norms are sufficiently valuable. This is the kind of thinking which lets procedural factors give way to substantive needs in urgent, emergency situations, but it is not necessary to cast the point in such extreme terms. A treaty which failed to include the consent or even deliberation of all those affected by its terms, for instance, is less procedurally valuable than one which does, but the less valuable process will not detract much from the normativity of an outcome that is substantively better for those who were not consulted.35 In reverse, if there are multiple legitimate substantive outcomes, equally or incommensurably valuable, then a procedural value might render one more legitimate than the other(s). A second rehabilitative step comes out of the relative authority approach described earlier. Rather than see the relationship between procedural values at the State and international level as a contest or an attempt by one to override the other, we can assess their quality and legitimacy interdependently, so that defects in processes at one level may be offset by strengthened processes at other levels. This will not always occur, but it does reopen the possibility that international law-​making processes can contribute towards interdependently legitimate authority despite their independent procedural limitations. Furthermore, by treating international law’s authority as relative rather than independent authority, we raise the question of what international law must be like, and importantly what its sources must be like, if international law is to have the requisite degree of openness and responsivity to the State authorities with which it overlaps, to realize its legitimate relative authority. Such rehabilitation, therefore, must finally turn to the evaluation of specific sources of international law to consider their role in realizing full international legal normativity. 34   See Steven Wheatley, ‘A Democratic Rule of International Law’, European Journal of International Law 22 (2011): 525–​48. 35   Assuming the plausibility of a substantive account of legitimate authority, such as that offered by Besson, ‘The Authority of International Law’.

696    sources and the normativity of international law

VI.  How do Specific Sources Measure Up? This section cannot canvas all the orthodox or new/​emerging sources of international law, nor the extensive literature analysing and evaluating their normativity. Rather it highlights treaties and custom—​the two which remain most significant for international practice—​to show sample arguments and the evaluative structures into which they fall. For any one source, the key question is: does it embody a process that could generate normativity for those subjected to its norms? In the cases of both treaties and custom, there are well-​known problems: what is important here is not to capture them all, but to see how they can be structured as problems for the normativity of international law itself.

1. Treaties: Normativity by Agreement Inter-​subjective normativity can arise from agreements to generate rights and duties for oneself and others. International treaties, as a source of law, thus have the obvious starting quality of being consent-​based, and thus potential to bind in the manner of other voluntary obligations.36 They also have the potential to state clear, public norms, and be consistent with the formal requirements of the rule of law. As a source of law, then, treaties may make a strong contribution to normativity. Treaties also have the virtue of being able to generate rules of either a private or public character. Those which address a limited set of objectives between small sets of parties, akin to contracts or other mechanisms of private law, can play a very important role in furthering the general normativity of international law. Such treaties enable their parties to organize their own interactions with the backing of legal norms, and sometimes with the involvement of institutions to ensure the fair application of those norms. On the other hand, treaties with broader ambit, seeking to engage all, or nearly all members of the international community, can express purportedly public or constitutional values and objectives. If they come to fruition, they generate commitments of a public character which have some value as points of coordination, cooperation, or conflict-​resolution. Treaties of both characters can help significantly to carry the deep justification of international law. All that potential, however, can be undermined by several factors. First, the substantive norms that emerge from treaties will not have the full normativity  See Jan Klabbers, The Concept of Treaty in International Law (The Hague:  Kluwer Law International, 1996). 36

nicole roughan   697 discussed here unless they are also substantively valuable, and are thus in line with the deep justification for having international law. Treaties which generate valid norms may be treated as binding by officials tasked with applying those norms, but if they are not consistent with or supportive of substantive values, then they will not be legitimately authoritative and hence not fully normative. Here, substantive values might include the coordination of actors in pursuit of a common valuable or even imperative goal, setting up institutional mechanisms for the peaceful resolution of disputes, addressing a past injustice, or in some other way serving one of international law’s potential justified functions. Secondly, treaties may be the sorts of things that can generate norms with full consent-​based normativity, but in order for them to carry value, their voluntariness must be genuine and inclusive. Parties’ consent must not be coerced or procured by pressure, and the set of parties needs to include, in a genuine participatory and deliberative sense, those who are most/​directly affected by the treaty’s norms. This is a large hurdle, for there are very often political and material barriers to parties being included in treaty-​making processes, and even when treaties include broad participation, much of their substance tends to be agreed by smaller groups of the most influential parties.37 Much of the scholarship on the value of treaty-​making, including work in this volume, contains suggestions for reform of the institution of treaty-​making itself.38 These can be interpreted as ways to ameliorate the elements that detract from the procedural value of treaty law, and enhance its normativity-​contributing potential. Failing that, and in addition, is the prospect that some of the downsides of treaties as sources of law may be rectified in the form of other sources, and most notably, customary international law.

2. Custom: Normativity through Normative (Aspirational or Reciprocal) Practice The normativity of custom lies in its very character as a normative social practice, and indeed in its participatory openness and potential to engage even those less powerful States in law-​making it seems to avoid some of the limitations of treaties as a source of law.39 However, as with treaties, a superficial assessment would miss some of the deeper problems which can limit the extent to which participation in 37   See e.g., Sarah Joseph, Democratic Deficit and the WTO: A Human Rights Critique (Oxford: Oxford University Press, 2011). 38   See Allen Buchanan, Justice, Legitimacy and Self-​Determination (Oxford: Oxford University Press, 2003), p. 303: consent needs to be truly voluntary if it is to have ‘normative punch’. 39   See e.g., Nicole Roughan, ‘Democratic Custom v International Customary Law’, Victoria University of Wellington Law Review 38 (2007): 403–​16.

698    sources and the normativity of international law the formation or development of customary norms is as open as it needs to be in order to generate normativity. The idea that more powerful States are more easily able to resist nascent customary norms, and more able to generate norms of their own to fit their preferences, is well documented.40 So too are the difficulties of interpreting when customary international laws exist, and their limits. The deficiencies of customary international law against the formal standards of the rule of law are also familiar—​it is hard to defend customary laws as being sufficiently public, clear, coherent, general, or non-​retrospective to carry forward procedural value.41 However, and again taking the position of the defender of international law, custom’s very participatory character enables it to serve as a potentially rich bridging device between standards that participants in the community, and particularly officials, wish to treat as binding, and those that are in fact practiced. The very notion of normative social practices enables those who engage in the practice to do so aspirationally, with the goal of highlighting values and norms that would be desirable for the community to adhere to, even though it currently does not. Customary international law thus has a powerful potential to generate normativity through a practice of aspiration, rather than a practice of habit. In other words, participants in a normative practice might act in accordance with rules by which they think they ought to be bound rather than rules by which they think they are already bound. The difference is profound, and to the extent that this view of opinio juris is engaged by officials whose role involves applying customary international law, it departs from the approach instantiated in Article 38 (1) of the Statute of the International Court of Justice.42 That doctrine, however, always needs be interpreted. In the light of the arguments above about the impossibility of deriving normativity merely from beliefs about obligations, which would deny that either the lex lata or the lex ferenda reading of opinio juris is sufficient to generate normativity at all, the latter version in which participants see themselves as part of an aspirational normative practice at least has a potential to generate normativity.43 The second generator of the potential normativity of custom may be more persuasive even for the strictest positivist. It holds that the key ingredient of a normative   See, e.g., Gerry Simpson, Great Powers and Outlaw States (Cambridge: Cambridge University Press, 2004), pp. 48, 199–​223, 321–​5. 41   For an extensive analysis of some of these concerns, and their implications, see Kammerhofer, ‘Uncertainty in the Formal Sources of International Law’. 42  See Anthea Roberts, ‘Traditional and Modern Approaches to Customary International Law: A  Reconciliation’, American Journal of International Law 95 (2001):  757–​91, 766–​8; John Tasioulas, ‘Customary International Law and the Quest for Global Justice’, in Perreau-​Saussine and Murphy, eds, The Nature of Customary Law, 307–​35; Brian Lepard, Customary International Law:  A  New Theory with Practical Applications (Cambridge: Cambridge University Press, 2010); Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993). 43   This is in keeping with the notion of opinio juris as a sense of moral obligation, but adds the idea of a morality of aspiration, rather than a morality of duty. For that distinction, see Fuller, The Morality of Law, and Simmonds, Law as a Moral Idea. 40

nicole roughan   699 practice is the element of reciprocity that a practice generates. Reciprocity entails that participants in the practice can act with the expectation that others have obligations correlative to their own rights. The content of those obligations, however, shifts with the practice, so that nascent obligations arise through the practice of some committed participants holding themselves and others to a new standard of conduct. Through reciprocal expectations, then, participants in the practice come to act as if they have rights and duties vis-​à-​vis each other, and that practice is normative not only because its participants treat it as such, but also because, so long as the content of those substantive rights and duties is sufficiently valuable, the practice in which members of a community come to have rights and duties out of their direct interactions is itself deeply justified.44

Research Questions • What role do the sources of international law play in establishing or generating the normativity of international law? • How well do the sources of international law, as currently practiced, generate procedural values that can contribute to the justification of international law’s full normativity?

Selected Bibliography Aspremont, Jean d’, and Eric De Brabandere, ‘The Complementary Faces of Legitimacy in International Law:  The Legitimacy of Origin and the Legitimacy of Exercise’, Fordham International Law Journal 34 (2011): 190–​235. Besson, Samantha, ‘The Authority of International Law—​Lifting the State Veil’, Sydney Law Review 31 (2009): 343–​80. Besson, Samantha, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2010), 163–​85. Buchanan, Allen, ‘The Legitimacy of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2010), 79–​96.   This approach comes out of, though is not identical to, Fuller’s account of normative custom in Lon Fuller, ‘Human Interaction and the Law’, American Journal of Jurisprudence 14 (1969): 1–​36. 44

700    sources and the normativity of international law Delacroix, Sylvie, Legal Norms and Normativity (Oxford: Hart, 2006). Kumm, Mattias, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’, European Journal of International Law 15 (2004): 907–​31. Postema, Gerald, ‘Custom in International Law: A Normative Practice Account’, in Amanda Perreau-​Saussine and James B. Murphy, eds, The Nature of Customary Law (Cambridge: Cambridge University Press, 2007), 279–​306. Roughan, Nicole, Authorities:  Conflicts, Cooperation, and Transnational Legal Theory (Oxford: Oxford University Press, 2013). Roughan, Nicole, ‘Mind the Gaps: Authority and Legality in International Law’, European Journal of International Law 27 (2016): 329–​51.

Section  XV I I

SOURCES AND THE LEGITIMATE AUTHORITY OF INTERNATIONAL LAW

Chapter 33

SOURCES AND THE LEGITIMATE AUTHORITY OF INTERNATIONAL LAW A CHALLENGE TO THE ‘STANDARD VIEW’?

Richard Collins*

I. Introduction To write a chapter on the topic of legitimate authority in relation to the sources of international law presents an initial conceptual challenge. After all, the sources are paradigmatically understood to determine the legality—​in the sense of validity—​of international legal rules.1 This understanding of legality contrasts quite starkly with *  My thanks to the editors, José Luis Martí, and to the participants at both of the preparatory workshops for useful comments on earlier drafts. 1  On the distinction between legality, legitimacy, and legitimate authority in relation to the sources, see Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2010), 163–​85, 166.

704    sources and the legitimate authority of international law the ‘fuzziness and indeterminacy’ of assessments of political legitimacy.2 Indeed, insofar as international law has come to be widely thought of as an autonomous system of positive legal rules, wherein the sources (most often simply equated with Article 38 of the Statute of the International Court of Justice (ICJ)),3 alongside other foundational, or ‘secondary’ rules,4 function as criteria of validation for those rules, we might see questions of legitimacy as separate, tangential questions—​related to the legal enterprise, but unnecessary to understand the role and functioning of international law.5 This kind of ‘doctrinal’ view—​what Başak Çali has termed the ‘standard view’ of authority in international law6—​simply presumes that, once validated, international legal rules will have the necessary authority over international legal subjects. If we follow this standard view we might well deflect questions of legitimacy in one of two directions: either ‘upwards’, to the anterior question of the legitimacy of the international legal system as a whole, or ‘downwards’, to the question of the normativity or ‘compliance pull’ of the substantive legal norms thus validated by the sources themselves.7 Nevertheless, this kind of deflection is problematic for the following reasons. 2  James Crawford, ‘The Problems of Legitimacy Speak’, Proceedings of the American Society of International Law 98 (2004):  271–​3, 271. For similar concerns, see Martti Koskenniemi, ‘Miserable Comforters: International Relations as New Natural Law’, European Journal of International Relations 15 (2009): 395–​422, 409–​10. 3   Article 38 includes as the sources to be applied by the International Court of Justice, ‘international conventions, whether general or particular, establishing rules expressly recognized by the contesting States . . . international custom, as evidence of a general practice accepted as law . . . the general principles of law recognized by civilized nations . . . [and] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’. For a classic interpretation of sources doctrine in this vein, see inter alia Hugh Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014). For critical engagement with this doctrinal view, see Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005) (reissue with a new epilogue), ch. 5. 4   See H. L. A. Hart, The Concept of Law, 2nd edn (Oxford: Oxford University Press, 1994). Many international lawyers have borrowed Hart’s terminology to explain the system of international law. See inter alia Pierre-​Marie Dupuy, L’unité de l’ordre juridique international: cours général de droit international public, vol. 297, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 2002), 9–​490, 39; Besson, ‘Theorizing the Sources’; Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H. L. A. Hart’, European Journal of International Law 21 (2011): 967–​95, 981–​ 93 in particular. For discussion, see Mario Prost, The Concept of Unity in International Law (Oxford: Hart, 2012), pp. 81–​4. 5   See e.g., Ronald St J. MacDonald and Douglas M. Johnston, ‘International Legal Theory:  New Frontiers of the Discipline’, in Ronald St J. MacDonald and Douglas M. Johnston, eds, The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine, and Theory (The Hague: Martinus Nijhoff, 1983), 1–​14, 7. 6   See Başak Çali, The Authority of International Law:  Obedience, Respect and Rebuttal (Oxford: Oxford University Press, 2015), ch. 1. 7   One can see this former mode of deflection in e.g., Robert Kolb, Réflexions de philosophie du droit international. Problèmes fondamentaux du droit international public:  Théorie et Philosophie du droit international (Bruxelles:  Bruylant, 2003), p.  51. For the latter form of legitimacy assessment, addressing the ‘compliance pull’ of international legal norms, see Thomas M. Franck, ‘Legitimacy in

richard collins   705 First, the desire to distinguish the question of the anterior legitimacy of the international legal system from that of the validity of international legal rules has never been fully convincing. The image of international law as an autonomous legal system is not something natural or intrinsic to the relations between States, but has been read into international law as reflecting a particular—​that is, not incontestable—​ view of its overall institutional legitimacy.8 In particular, the emergence and growing dominance of legal positivism from the nineteenth century onwards has reflected the influence of a broadly liberal account of political legitimacy that seeks to mediate the subjectivity of moral agency by means of a distinctly ‘institutional’ form of legal reasoning.9 On this view, sources doctrine at least in part reflects a commitment to the kind of procedural justice inherent within values like the rule of law, specifically by purporting to hold out content-​independent reasons for compliance with legal norms.10 Secondly, the very nature of the sources themselves means that the ‘downward’ strategy of deflection must also be qualified, if not rejected altogether. By incorporating a consensual form of validation within the criteria for the validity of international law’s two main sources—​treaties and custom—​sources doctrine makes the question of ‘compliance pull’ directly relevant to the formation of legal norms themselves.11 In other words, there is no sharp distinction between the subjective origins of the law and its objective ascertainment in practice, as sources doctrine makes a process of consensual affirmation an operative criterion in the question of the validity of international legal rules. Thirdly, and finally, insofar as sources doctrine reverts to the practices and opinions of States in this way, it remains still a contested model for explaining the legality and thus overall authority of international law. For almost as long as this the International System’, American Journal of International Law 82 (1988):  705–​59, and developed more fully in Thomas M. Franck, The Power of Legitimacy among Nations (Oxford: Oxford University Press, 1990).   ‘[The systemic view] cannot be understood as reaffirming something that already “exists” before the systemic effort itself. There is no single legislative will behind international law.’ Report of the Study Group of the International Law Commission on the Fragmentation of International Law, finalized by Martti Koskenniemi, 13 April 2006, UN Doc. A/​CN.4/​L.682, p. 23, para. 34 (emphasis added). 9   For discussion, see inter alia, Martti Koskenniemi ‘The Politics of International Law’, European Journal of International Law 1 (1990): 4–​32, 4–​7, and Richard Collins ‘Classical legal positivism in international law revisited’, in Jörg Kammerhofer and Jean d’Aspremont, eds, International Legal Positivism in a Post-​Modern World (Cambridge: Cambridge University Press, 2014), 23–​49, 28–​36. 10   As Besson has claimed, there are ‘normative grounds for positing international law and adopting a positivist approach to the sources of international law, and these are in particular grounds of global justice and peaceful cooperation among equal international subjects whose conceptions of justice diverge’. Besson, ‘Theorizing the Sources’, p. 166. 11   It might be preferable to refer instead to a ‘concept’, or ‘theory’, of the sources of international law; however, my use of the term ‘doctrine’ in what follows is intended to signal the paradigmatic—​even if increasingly contested—​notion of international law’s sources as roughly equivalent to Art. 38 of the ICJ Statute (on which, see n. 3 above). 8

706    sources and the legitimate authority of international law ‘doctrinal’ or ‘standard’ view has persisted, a range of more critical voices has cast doubt on whether legality and legitimacy can be sharply contrasted in this way. For these critics, rather than being simply a matter of formal law-ascertainment, legal validity is determined at least in part by a more subjective—​that is, content-​ dependent—​legitimacy assessment.12 With this background in mind, my aim in the current chapter is threefold. First, I will illustrate and make explicit the (often implicit) account of legitimate authority contained within, or expressed by, sources doctrine: essentially, a broadly consensual form of validation finding expression within a formal, or institutional, model for ascertaining binding legal norms. Secondly, I will consider two forms of challenge to the adequacy of this account, the first of which aims to challenge the coherence of this view of the sources (particularly as applied to customary international law), and the second of which challenges the exhaustiveness of this account, particularly insofar as a range of increasingly institutionalized processes of formal and informal norm formation are seen to undermine the standard account as revealed above. Whilst accepting some of these criticisms, I will also, thirdly and finally, suggest that these criticisms miss their target, failing to see that the doctrine of sources only ever provides a partial account of the legitimacy of modern international law, which is better thought of as in tension between content-​independent and content-​ dependent modes of normative reasoning. Before raising each of these points, however, it is first necessary to briefly sketch out how I  understand the relationship between legitimate authority and the law.

II.  Legitimate Authority and the Law It is no easy task to give a precise definition of the concept of legitimate authority, it being one of the most central and controversial topics of political philosophy generally.13 Nevertheless, there appears to be sufficient consensus that in ideal form, or at least applied to an ideal form of political community, it can be roughly equated with the ‘right to rule’.14 For instance, Thomas Christiano suggests that this ideal   For a discussion, see Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011), ch. 4. 13  See discussion of Thomas Christiano, ‘Authority’, in Edward N. Zalta, ed., The Stanford Encyclopedia of Philosophy (Spring 2013 Edition), , accessed 4 June 2017. 14   See Leslie Green, ‘Legal Obligation and Authority’, in Zalta, ed., The Stanford Encyclopedia of Philosophy (Winter 2012 Edition), , accessed 4 June 2017. 12

richard collins   707 form gives rise to ‘a moral power to impose a set of rules by which the others must regulate their conduct’.15 In other words, where legitimate (rather than de facto) authority is established, a political ruler enjoys a moral right to command obedience, whilst subjects would have a moral reason (perhaps even duty) to conform to the ruler’s command.16 Nevertheless, as Christiano also notes, this ideal form of legitimate authority is not always fully present and not always fully appropriate, ultimately depending on the form of political relationship in play, as well as the type of body holding out such authority. For instance, legitimate authority might grant a right to coerce, without necessarily grounding any correlative obligation to obey; it might, similarly, give a reason for compliance, without that reason necessarily amounting to an obligation as such.17 However, the idea that legitimate authority does provide what is commonly termed a ‘content-​independent’ reason to comply—​that is, a reason to follow a stipulated course of conduct simply on the basis of it having been mandated by the institution or body holding out such authority—​seems to be widely accepted.18 A critical question, therefore, concerns whether law itself necessarily has, or claims to have, legitimate authority, and if so, to what extent. The idea of content independence seems to adhere with popular accounts of legal normativity insofar as legal rules are understood to be validated on the basis of their source, thus implying a content-​independent reason to comply with a norm’s stipulations (that is, a reason independent of the norm’s moral correctness or political utility).19 In this case, however, we might simply state that legitimate authority will reside in the body claiming a right to create or apply legal norms in particular instances. Nevertheless, several theorists also subscribe to an arguably more ambitious view, holding as a matter of conceptual necessity that law must itself—​in John Tasioulas’ words—​make a ‘claim to impose a content-​independent obligation to obey’.20 Joseph Raz is perhaps the leading proponent of this view, arguing that whilst law might not always have legitimate authority, it must necessarily claim to do so. In other words, whilst Raz denies that we actually do have a moral obligation to obey the law in all instances—​a decision to adhere to the law depending, ultimately, on whether the claim to authority is legitimate or not—​it is part of law’s nature that it must make this claim.21 15   Thomas Christiano, ‘The Legitimacy of International Institutions’, in Andrei Marmor, ed., The Routledge Companion to Philosophy of Law (New York: Routledge, 2012), 380–​94, 380, 381. 16  John Tasioulas, ‘Human Rights, Legitimacy, and International Law’, American Journal of Jurisprudence 58 (2013): 1–​25, 9. 17   See generally section 1 of Christiano, ‘Authority’. 18   See e.g., Scott Shapiro, ‘Authority’, in Jules Coleman and Scott Shapiro, eds, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Clarendon Press, 2002), 382–​439, 390–​1. 19   Christiano, ‘The Legitimacy of International Institutions’, p. 382. 20   Tasioulas, ‘Human Rights, Legitimacy, and International law’, p. 14 (emphasis added). 21   Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford: Clarendon Press, 1994), p. 215.

708    sources and the legitimate authority of international law Raz’s argument follows from his broader theoretical commitment to what has been termed ‘exclusive legal positivism’. Specifically, Raz rejects the possibility, left open by H.  L. A.  Hart in the Postscript to The Concept of Law, that the rule of recognition of a legal system may incorporate moral evaluation as part of the criteria for validating legal norms.22 For Raz, law seeks to offer pre-​emptive reasons (second-​order reasons) which trump, or exclude other reasons we have for acting (first-​order reasons), and can do so only by holding out such a claim to legitimate authority.23 Nevertheless, his argument has not escaped controversy, particularly among those committed to a more ‘inclusive’ form of positivism, who present a number of conceptual and empirical arguments to the contrary.24 I do not want to take a specific position in this particular debate as such; suffice to say that I think we can perhaps defuse the debate somewhat by simply scaling back what is necessarily implied by law’s claim to legitimate authority. If we hold on to the view, as I think we should, that law provides content-​independent reasons to comply with its stipulations, and that this function is important to its conceptual identity as such, one can still recognize law’s claim to legitimate authority without necessarily going as far as to endorse Raz’s pre-​emption thesis: the claim that such reasons must necessarily exclude other reasons we have for acting.25 This view would seem to be supported by Christiano’s less-​than-​categorical account of legitimate authority, but to explain this point further it might be useful to distinguish between weaker and stronger forms of content independence. As Noam Gur suggests, content independence in the weaker sense will depend upon, inter alia, the legitimacy of the issuer of the norm, or the acceptance of the procedure by which a norm comes into being, without necessarily saying anything about the peremptory nature of the norm itself.26 In the stronger, ‘exclusionary’ sense in which Raz relies upon content independence, however, the claim is that law must pre-​empt our other reasons for acting. I do not think it necessary, and in fact it might be misleading, to hold on to the stronger claim—​ particularly when considering whether international law holds out any claim to legitimate authority—​but my reason for doing so ultimately depends on a  Hart, The Concept of Law, pp. 250, 253.   See inter alia Joseph Raz, Practical Reason and Norms (London: Hutchinson & Co, 1975); Joseph Raz, The Authority of Law, 2nd edn (Oxford: Oxford University Press, 2009), pp. 16–​27, 30–​33. 24   See e.g., Kenneth E. Himma, ‘Law’s Claim to Legitimate Authority’, in Jules Coleman, ed., Hart’s Postscript: Essays on the Postcript to The Concept of Law (Oxford: Oxford University Press, 2001), 271–​310, 277–​80, 297–​99. 25   Stephen R. Perry, ‘Second Order Reasons, Uncertainty, and Legal Theory’, Southern California Law Review 62 (1989): 913–​94; Stefano Bertea, The Normative Claim of Law (Oxford: Hart, 2009). See also, for discussion, Arthur I. Applbaum, ‘Legitimacy without the Duty to Obey’, Philosophy and Public Affairs 38 (2010): 215–​39. 26   Noam Gur, ‘Are Legal Rules Content-​Independent Reasons?’, Problema 5 (2011): 175–​210, 178–​81; and see the discussion in Anne van Mulligen, ‘Framing Deformalisation in Public International Law’, Transnational Legal Theory 6 (2015): 635–​60. 22 23

richard collins   709 rejection of the kind of instrumentalism which underpins Raz’s conception of legitimate authority. To explain this point more clearly, we must turn to consider, and distinguish between, the different grounds we might have for recognizing legitimate authority. Whilst there is a somewhat bewildering number of alternative theories in this respect,27 following Christiano we can identify three broad, though not necessarily mutually exclusive approaches:  consent-​based, democratic, and instrumental accounts.28 I will come back to the first two grounds shortly, which I believe offer a more plausible (albeit still not unproblematic) explanation of legitimate authority of political institutions. To explain why, however, it is first necessary to demonstrate how the instrumental explanation, though superficially attractive in its apparent respect for the autonomy of human agents, is nonetheless misguided. Raz offers exactly this kind of instrumental justification in the form of the ‘service conception’ of authority, which relates essentially to the capacity of a political institution to help us to better conform to reasons we already have for acting as moral agents.29 At the core of this view, at least in its most recent iteration,30 are what Raz calls the ‘normal justification thesis’ (NJT) and the ‘independence condition’ (IC), which he explains as follows: The suggestion of the service conception is that the moral question is answered when two conditions are met, and regarding matters with respect to which they are met: First, that the subject would better conform to reasons that apply to him anyway (that is, to reasons other than the directives of the authority) if he intends to be guided by the authority’s directives than if he does not (. . . the normal justification thesis or condition). Second, that the matters regarding which the first condition is met are such that with respect to them it is better to conform to reason than to decide for oneself, unaided by authority (. . . the independence condition).31

There are several virtues underpinning Raz’s approach, not least of which is the completeness of his justification: the NJT providing a good reason, if fulfilled, for legal rules to pre-​empt the other reasons we might have for acting in certain circumstances; the IC suggesting certain circumstantial or jurisdictional limits to this authority. Furthermore, as suggested by Christiano, Raz’s thesis has the benefit of reconciling a respect for individual autonomy with a convincing justification for limiting or restricting this autonomy in certain aspects. However, this respect for individual autonomy is arguably more surface than real:  in its somewhat atomistic, individuated form of reasoning, the service conception 28   See e.g., Christano, ‘Authority’.  ibid.   See, primarily, Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), as well as, more recently, Joseph Raz, ‘The Problem of Authority: Revisiting the Service Conception’, Minnesota Law Review 90 (2006): 1003–​44. 30   On the evolution of Raz’s views, see Adam Tucker, ‘The Limits of Razian Authority’, Res Publica 18 (2002): 225–​40, 230–​2. 31   Raz, ‘The Problem of Authority’, p. 1014 (emphasis added). 27

29

710    sources and the legitimate authority of international law seems to preclude non-​instrumental factors that we might have for rejecting the legitimacy of certain institutions, such as that we might deem them to be substantively unjust, either in terms of the values to which they are committed, or in the way they were constituted or, thereafter, sustain their dominance over us.32 In fact, Raz’s theory has been criticized both for requiring too little from authority (seemingly compatible with forms of expert rule that may be wholly undemocratic and unrepresentative),33 and also too much (where, alternatively, authority may be substantiated simply on the basis of consent, or expertise—​albeit, with the need for some additional procedural means for further review).34 One might counter that through the IC Raz purports to restrict the service conception to only those matters over which it is better to defer to authoritative judgement. However, this qualification only further highlights the limits of Raz’s thesis more clearly, for whilst Raz focuses on the substance, rather than the procedure, of decision-​making, he provides no substantive basis—​moral content—​for making the determination of which matters meet the conditions of the IC in the first place. In other words, the form of conceptual analysis applied by Raz describes the problem of justifying authority, rather than in fact providing the substance of the justification itself.35 Overall, therefore, the service conception seems to fail to provide an adequate answer to the problem of legitimizing political (that is, public) authority: the need for some specific institutional model designed to mediate the problem of legitimate moral disagreement among a multitude of persons. It is precisely in this context that a long tradition in political theory has attempted to reconcile moral autonomy with a system of legitimate public institutions and legal regulation, and which has found its most common expression in something like the idea of the social contract.36 To speak of consent in this context is not to suggest voluntarism in the context of individuated decision-​making, but instead, as Leslie Green has claimed, ‘as a part of the constitution rule that sets up the political community in the first place’. Indeed, he claims that some form of consent (on these terms) might be deemed the ‘normal justification for political authority’.37 Of course, the   See generally, Thomas Christiano, ‘The Authority of Democracy’, The Journal of Political Philosophy 12 (2004): 266–​90, 277–​80. 33  See e.g., Scott Hershovitz, ‘Legitimacy, Democracy and Razian Authority’, Legal Theory 9 (2003):  201–​20; Samantha Besson, ‘Democracy, Law and Authority’, Journal of Moral Philosophy 2 (2005): 89–​99. 34   Kenneth E. Himma, ‘Just ’Cause You’re Smarter than Me Doesn’t Give You a Right to Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis’, Oxford Journal of Legal Studies 27 (2007): 121–​50. 35   See Tucker, ‘The Limits of Razian Authority’, p. 234. 36   There are numerous formulations of the contract idea, though see relatively recently the useful collection of essays in David Boucher and Paul J. Kelly, eds, The Social Contract from Hobbes to Rawls (Abingdon: Routledge, 2005). 37   Green, ‘Legal Obligation and Authority’ (emphasis in original). 32

richard collins   711 illustrative trope of the social contract has fallen out of fashion to a considerable degree, not only in literal or empirical terms,38 but also, when applied as a kind of tacit or presumed authorization, it seems to undermine the very same concern for individual autonomy that propelled it in the first place.39 In that sense, much contemporary political theory, whilst not giving up on the importance of a consensual justification in principle, essentially reformulates this requirement into a more aprioristic normative claim. This has ranged from an explanation of legitimate authority in terms of the associative obligations of political community,40 to making a more prudential or moral claim grounded in social necessity (the need for coordination, perhaps),41 or an account from the point of view of justice, or fairness.42 Nevertheless, whilst these alternative rationales appear more convincing in what they do not presume (consent), insofar as they justify hierarchical political institutions they remain still threatening to the concern for moral autonomy which propels them, potentially threatening tyranny in the name of moral legitimacy. As such, we are left either with only a very thin normative claim to authority, which remains potentially unstable in practice and contestable in principle,43 or we must find a way of re-​introducing consensualism in the form of some procedural input or ‘check’ on decision-​making processes. It is for this reason, therefore, that Christiano suggests the need for a more democratic account of authority. The democratic justification appears intuitively plausible, particularly insofar as it would seem to begin from a similar moral concern for individual autonomy. Furthermore, it does not condition authority (only) on a presumed imperative of coordination or public reason, but instead commits moral agents to a certain kind of public procedure to keep any such normative rationale in check.44 Nevertheless, for our immediate purposes, I  also agree with Christiano that democratic justifications are unhelpful in attempting to account for, or contribute to, the legitimate authority of international law. Indeed, notwithstanding some spirited defences to the contrary,45 it seems unlikely that any meaningful and legitimate democratic processes could emerge sufficient to give authority to international law   For criticisms, see e.g., Hart, The Concept of Law, p. 224, and John Finnis, Natural Law and Natural Rights, 2nd edn (Oxford: Oxford University Press, 2011), pp. 247–​9. 39   For a discussion, see Alan John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979), pp. 57–​100. 40   See e.g., Ronald Dworkin, Law’s Empire (Oxford: Hart, 1998 [1986]), pp. 195–​202 ff., and for critical engagement, see Alan John Simmons, ‘Associative Political Obligations’, Ethics 106 (1996): 247–​73. 41   See e.g., David Estlund, Democratic Authority (Cambridge: Cambridge University Press, 2007). 42   The most obvious example being John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971). 43   Indeed, this seems to be Simmons’ conclusion, as he looks for some salvageable moral obligation to rescue an account of political authority. Simmons, Moral Principles, pp. 136–​42. 44   Christiano, ‘The Authority of Democracy’, particularly pp. 280–​4. 45   See e.g., Stephen Wheatley, The Democratic Legitimacy of International Law (Oxford: Hart, 2010). 38

712    sources and the legitimate authority of international law as a whole, or to particular regimes or institutions therein.46 Furthermore, it is at least questionable whether the account of legitimate authority grounded in democracy is not actually an account of the authority of the law-​State, rather than all forms of law per se. As such, the authority of international legal rules, institutions, and other forms of public power seems to be more directly and operatively conditioned upon the consent of international legal subjects—​a condition which finds its fullest expression, arguably, in the doctrine of sources. However, as I will now go on to demonstrate, this reliance on consent is often misunderstood and caricatured, even if, at the same time, it seems increasingly to be subjected to challenge by the apparent ‘deformalization’ of contemporary international law-​making.

III.  Consent and the Sources of International Law Intuitively, it seems both plausible and familiar to conceive of international law’s overall legitimacy according to the same kind of ‘liberal theory’ of politics that is familiar from the social contract tradition.47 Indeed, applied normatively rather than empirically, much of the reasoning that is taken to justify forms of domestic governance can also be—​and indeed often is—​applied in the abstract to understand the institutional structure of international law.48 Historically speaking, this kind of analogy was explicit in the works of Jean-​Jacques Rousseau and Immanuel Kant, for example, but it is arguably also more pervasive in the implicit structuring of core international law doctrines—​as Martti Koskenniemi has claimed: This is a theory which identifies itself on two assumptions. First, it assumes that legal standards emerge from the legal subjects themselves. There is no natural normative order. Such order is artificial and justifiable only if it can be linked to the concrete wills and interests of individuals. Second, it assumes that once created, social order will become binding on these same individuals. They cannot invoke their subjective opinions to escape its constraining force. If they could, then the point and purpose of their initial, order-​creating will and interest would be frustrated.49

46   Christiano, ‘The Legitimacy of International Institutions’, p. 382, and further in Thomas Christiano, ‘Democratic Legitimacy and International Institutions’, in Besson and Tasioulas, eds, The Philosophy of International Law, 119–​38. 47   Koskenniemi, ‘The Politics of International Law’, pp. 4–​6. 48   Patrick Capps, ‘The Rejection of the Universal State’, in Nicholas Tsagourias, ed., Transnational Constitutionalism (Cambridge: Cambridge University Press, 2007), 17–​43. 49  Koskenniemi, From Apology to Utopia, pp. 21–​2 (emphasis added).

richard collins   713 As such, following the logic of the social contract we can see also how international law claims to offer an objective basis for law’s normativity from a broadly consensual model of associative politics: in both forms of justification the concepts of ‘consent, obligation and institutional form, are mutually supportive and logically parasitic upon each other’.50 Of course, the idea of consent here would not be an empirical account of the founding of the international legal order, or even an explanation for legal obligation in a more immediate sense,51 but rather part of the overall legitimacy claim made by international law—​that is, it would act as a normative justification for the structure of the system overall.52 This point is easily misunderstood and caricatured. The idea that the basis of obligation in international law—​its bindingness—​could derive from consent is as unconvincing as the claim from express or tacit consent within the social contract tradition. It is precisely this kind of voluntarism that was rightfully castigated as unworkable as a theory of obligation by interwar jurists like Hersch Lauterpacht and James-​Leslie Brierly, and which has remained controversial since.53 Rather, the point is simply to recognize that the system overall is sustained by legal participants (States, largely) through their conforming behaviour and mutually constitutive practices.54 Nevertheless, there is another sense in which the analogy does not go far enough, with State consent arguably re-​entering the picture of international law-​making in a more operative sense. Let me explain further. Notwithstanding its explanatory weaknesses, if we follow a similar logic to the social contract we must also recognize a fundamental disjuncture in the chain of reasoning that leads from moral autonomy, through the contract, to some form of hierarchical, centralized institutions characteristic of domestic society. Few theorists (or international lawyers) in applying this kind of normative rationale to international law also advocate anything like a universal State or hierarchical organization. Patrick Capps calls this disjuncture the ‘Discontinuity Thesis’: a normative rationale that explains (and justifies) the specific, decentralized institutional form of international law.55 There are numerous reasons why this discontinuity might occur, including reasons of prudence (e.g. that it is simply not feasible to subjugate States to a higher command), but also, and primarily, reasons of principle: essentially, that it would be illegitimate to impose such centralized command upon a pluralistic international society.56   Capps, ‘Rejection of the Universal State’, p. 17.   For (critical) discussion, see Friedrich Kratochwil, ‘The Limits of Contract’, European Journal of International Law 5 (1994): 465–​91, particularly 477–​86. 52   See e.g., Philip Allott, ‘The Concept of International Law’, European Journal of International Law 10 (1999): 31–​50, 39. 53   For discussion, see Collins, ‘Classical Legal Positivism’, pp. 28–​36. 54   Allott, ‘The Concept of International Law’, p. 35. 55   Capps, ‘The Rejection of the Universal State’, p. 21. 56   ibid., pp. 28–​40; Patrick Capps, Human Dignity and the Foundations of International Law (Oxford: Hart, 2009), pp. 215–​41 (ch. 9). 50 51

714    sources and the legitimate authority of international law Within these terms, then, one gets a clearer sense of the unique and ‘quasi-​ constitutional’ characteristics of international law’s sources, which seek to make a process of consensual validation an ongoing operative condition for the binding force of international legal norms.57 In the absence of any centralized legislative body, sources doctrine stands as a kind of proto-​rule of recognition, sustained merely by its acceptance as such, and purporting to answer the epistemological question of law’s origin and the ontological question of law’s validity at the same time.58 On these terms, as Phillip Allott puts it, the international legal order can be thought of as a ‘permanent negotiation of a social contract, the forming and re-​ forming of a legal basis of social co-​existence from day to day, with a necessary and inherent deep-​structural mutuality of legal relationships’.59 Nevertheless, as informative and interesting as the analogy is in thinking about the broad characteristics of the international legal order as a decentralized system, this explanation and qualification also arguably over-​simplifies the law-​making process in contemporary international law. As I seek to show in section IV below, in fact, the evolution of law-​making practices in an age of ‘global governance’ is increasingly challenging the coherence and explanatory potential of the above account, as well as the consensual justification at its heart.

IV.  A Spurious Consent? Rejecting the Doctrinal View It is perhaps trite to say that consent has fallen out of favour as an explanation and justification for the legitimate authority of international law.60 This argument extends not only to how the ‘traditional’ sources included in Article 38 function in practice, but also to the exhaustiveness of this account in giving a full picture of contemporary international law-​making, particularly with the advent of so-​called ‘global governance’. Both these arguments have the potential to impact upon, if not altogether undermine, the account of international law’s authority outlined in section III above. As such, I deal with each in turn in this final section. 57   Thomas Skouteris, The Notion of Progress in International Law Discourse (The Hague: TMC Asser Press, 2010), p. 147. 58   See Koskenniemi, From Apology to Utopia, pp. 303 ff. 59   Allott, ‘The Concept of International Law’, p.  44. For a similar rationale, see Ian Hurd, ‘The International Rule of Law and the Domestic Analogy’, Global Constitutionalism 4 (2015): 365–​95, 367. 60   See inter alia Jonathan I. Charney, ‘Universal International Law’, American Journal of International Law 83 (1993): 523–​53.

richard collins   715

1. The Coherence of Sources Doctrine? The Example of Customary International Law To say that the sources of international law are validated or even legitimized on the basis of State consent in any formal, direct sense is of course something of a misnomer. This is most obvious, perhaps, in relation to the subsidiary sources listed, such as general principles, judicial decisions, or academic writings. However, even in the case of the two principal, more deliberative, and more paradigmatically ‘consent-​based’ sources of international law—​treaty and custom—​the consensual justification often seems spurious in practice. It is, of course, true that binding treaty rules follow from State consent as expressed through signature and ratification. However, since the codification of many of the constitutive rules of treaty law in the form of the 1969 Vienna Convention on the Law of Treaties, a significant limit has been placed on States’ ‘contractual freedom’ in this regard, particularly with regard to their inability to ‘opt out’ of what are deemed peremptory norms of international law.61 Furthermore, many of the large-​scale multilateral treaty-​drafting processes have taken on a more informal and ‘quasi-​legislative’ function, either because the subject matter of the treaty is such as to have de facto impacts on the interests of third States,62 or, more directly, because the treaty is taken to reflect existing, or perhaps even generate new customary international law.63 Nevertheless, this latter observation is not so much about the formation of treaty obligations between consenting parties, as it is about the impact of modern treaty-​making processes upon the only truly ‘general’ law-​making process: the formation of customary international law. Although the opinio juris element in the formation of custom is often understood as a kind of consensual validation of the legally binding character of certain State practices,64 it is quite apparent that any such explicit process of consensual validation would give rise to incoherence and circularity.65 Certainly, the opinio can be easily distinguished from actual State 61   On the applicability and effect of jus cogens norms, see Art. 53 and Art. 64 of the Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331). 62   The most seminal study in this regard of recent years is probably Malgosia Fitzmaurice, ‘Third Parties and the Law of Treaties’, Max Planck Yearbook of United Nations Law 6 (2002): 37–​137. 63   See Charney, ‘Universal International Law’, pp. 547–​9. An obvious example of this would be the United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay, 10 December 1982, 1833 UNTS 3), many provisions of which, such as in relation to the Exclusive Economic Zone (EEZ), began to be identified as customary international law in cases like Continental Shelf (Libyan Arab Jarnahiriya/​ Malta) (Judgment) [1985] ICJ Rep 13. 64   See e.g., Gerald G. Fitzmaurice, The General Principles of International Law Considered from the Standpoint of the Rule of Law, vol. 92, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1957), 1–​227, 97. 65   See e.g., Chin L. Lim and Olufemi A. Elias, The Paradox of Consensualism in International Law (The Hague: Martinus Nijhoff, 1998).

716    sources and the legitimate authority of international law consent, as any such requirement would seem to dissolve the objective (counter-​ factual) normativity of customary norms altogether. However, the problem then becomes how States can otherwise hold or express a belief in the binding quality of any emerging norm, as it would seem that any such belief would simply be erroneous, or even in conflict with the existing law.66 This concern is often simply referred to as the ‘chronological paradox’.67 Although this paradox might in many senses be more theoretical than real, it nonetheless expresses an inherent difficulty in any source criteria which simply defer back to State participants on the question of the existence or scope of the law binding over them. Specifically, the question of the binding authority of customary international law would seem to most often arise when State practice is in conflict and legal opinion is divided, thus making it almost impossible to determine conclusively and objectively the existence or otherwise of any given customary legal norm.68 It is precisely because of the practical difficulties of reconciling the source requirements of customary international law that modern judicial practice seems to take necessary short-​cuts, often giving rise to a more fluid (and by no means uncontroversial) form of reasoning that tends either to smudge the two elements together,69 or prioritizes one over the other.70 In practice, very few judgments of the ICJ, for example, are able to convincingly demonstrate proof of both elements.71 If the existence of custom is not simply just stated (i.e. without presenting any corresponding evidence to this effect), more frequently we see intent merely inferred from practice,72 or, vice versa, inconsistent practice side-​lined altogether (such as in the controversial Nicaragua judgment)73 in favour of relying on public statements, resolutions of international organizations, or treaty practice as sufficient evidence  Jörg Kammerhofer, ‘Uncertainty in the Formal Sources of International Law:  Customary International Law and Some of its Problems’, European Journal of International Law 15 (2004): 523–​53, 534 ff. And see Jörg Kammerhofer, Uncertainty in International Law:  A  Kelsenian perspective (Abingdon:  Routledge, 2011), pp. 83–​4. See also Anthony D’Amato, The Concept of Custom in International Law (Ithaca: Cornell University Press, 1971), pp. 47 ff. 67   Michael Byers, Custom, Power, and the Power of Rules:  International Relations and Customary International Law (Cambridge: Cambridge University Press, 1999), pp. 130–​3. 68 69   See e.g., Koskenniemi, From Apology to Utopia, pp. 422–​4.   ibid., p. 418. 70  See e.g., Anthea Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’, American Journal of International Law 95 (2001): 757–​91; see also the idea of customary law on a ‘sliding scale’, which suggests that a great deal of opinio juris can count against the fact of a lack of practice, and vice versa. Frederic L. Kirgis, ‘Custom on a Sliding Scale’, American Journal of International Law 81 (1987): 146–​51. 71  Koskenniemi, From Apology to Utopia, pp. 428–​9. 72   Indeed, this seems to be the conclusion of the International Law Association in its study on the topic of the formation of customary international law. See International Law Association, Final Report of the Committee on Formation of Customary (General) International Law (2000), pp. 31–​2,, accessed 27 June 2016. 73   Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, inter alia, pp. 99–​100. 66

richard collins   717 for the existence of a custom.74 This ‘modern’ approach to customary international law looks for a much looser form of social consensus, perhaps derived from the ‘soft’ normative output of international institutional fora such as the United Nations General Assembly (UNGA), or—​as noted above—​the prior existence of a multilateral treaty, which though not seen as binding in lieu of consent, is clearly seen as relevant practice and/​or opinio.75 For these reasons, then, a number of scholars have decried the apparent incoherence of the source criteria of customary international law as a means of ascertaining binding legal norms.76 If not leading scholars to abandon the idea of custom possessing any inherent authority and normative influence,77 others have, in contrast, sought to emphasize more clearly the role of normative evaluation as part of the ascertainment of customary international law.78 In fact, most recently, Tasioulas has argued that rather than thinking about the legitimate authority of customary international law as premised on any form of consensual validation, it might be better reconceptualized by reference to Raz’s service conception of authority, as set out previously.79 Whilst this and other critiques are particularly insightful in showing the incoherence of relying on the source requirements to objectively ascertain customary legal norms, to attempt to supplement this process of validation of norms by reference to some objective evaluative criteria seems to miss the point—​ as previously indicated—​of the need for some legitimate institutional process for determining and applying legal norms in practice. The point is not whether the source requirements are easy to fulfil in any real, objective sense, but rather that they express a particular view of international law’s overall institutional legitimacy which would purposefully preclude reliance upon moral judgement as part of the process of determining legal obligations, whilst at the same time allowing such judgement to play out in the deliberations of States and other authorized decision-​ makers who are thus authorized to determine the law in practice. 74   Roberts, ‘Traditional and Modern Approaches’, pp. 758–​9. On the problem of international criminal tribunals applying custom without sufficient practice, see recently, Noora Arajärvi, The Changing Nature of Customary International Law: Methods of interpreting the concept of custom in international criminal tribunals (Abingdon: Routledge, 2014). 75   Alan Boyle and Christine Chinkin, The Making of International Law (Oxford: Oxford University Press, 2007), pp. 225–​9. 76   For convincing theoretical criticisms of the coherence of the two-​element (or ‘additive’) approach to customary international law, see e.g., Gerald Postema, ‘Custom in International Law: A Normative Practice Account’, in Amanda Perreau-​Saussine and James B. Murphy, eds, The Nature of Customary Law:  Legal, Historical and Philosophical Perspectives (Cambridge:  Cambridge University Press, 2007), 279–​306, and Emmanuel Voyiakis, ‘Customary International Law and the Place of Normative Considerations’, American Journal of Jurisprudence 55 (2010): 163–​200. 77   See e.g., Andrew T. Guzman, How International Law Works: A Rational Choice Theory (Oxford: Oxford University Press, 2008). 78   Voyiakis, ‘Customary International Law’. 79   See John Tasioulas, ‘Custom, Jus Cogens, and Human Rights’, in Curtis A. Bradley, ed., Custom’s Future: International Law in a Changing World (Cambridge: Cambridge University Press, 2016), 95–​116.

718    sources and the legitimate authority of international law Nevertheless, there is perhaps still a more plausible critique of the role of consent within the relationship between sources doctrine and the legitimate authority of international law, which, instead of attempting to reformulate or reconfigure the rules of customary international law formation, would simply downplay their importance in the increasingly institutionalized (and deformalized) law-​making processes of contemporary international law.

2. The Exhaustiveness of Sources Doctrine? The Deformalization of International Law-​Making To capture the normative influence of the increasingly diverse range of rule-​ making, standard-​setting, and other institutionalized processes—​both formal and informal—​that constitute contemporary global governance activities, it is quite clear that we have to look beyond, even if not (yet) fully discard, sources doctrine as traditionally understood.80 In fact, we can map these practices along a spectrum, moving from the formal towards the informal, and increasingly away from State consent as a plausible form of normative justification. For instance, at one extreme, we find ourselves in the realms of traditional ‘institutional law’ broadly defined (e.g. European Union law, World Trade Organization (WTO) law), which is easy to reconcile by reference to the consensual validation of the organization’s constituent treaty. Related to this body of institutional law, are those binding determinations (as opposed to general legal rules) that are underpinned by formal legal authority (e.g. decisions of the ICJ, resolutions of the UN Security Council, rulings of the WTO Dispute Settlement Body, etc.). Again, it is possible to explain these determinations as legally valid due to the underlying treaty obligation, though, to the extent that they seem to have quite considerable ‘legislative’ purport—​e.g. the Security Council assuming authority to mandate international criminal tribunals81—​the functional effect might come closer to a kind of general law-​making power. Whilst it is not impossible to explain this kind of normativity in terms of the traditional sources of international law, one must accept that sources doctrine will tell us little about the normative compliance pull of many of these practices, nor provide a meaningful way to legitimize them in most instances.82 Perhaps more troubling, however, is the increasing use   See e.g., Richard Collins, ‘Mapping the Terrain of Institutional “Lawmaking”: Form and Function in International Law’, in Elaine Fahey, ed., The Actors of Postnational Rule-​Making:  Contemporary Challenges of European and International Law (Abingdon: Routledge, 2015), 27–​46. 81   For discussion, see e.g., Wayne Sandholtz, ‘Creating Authority by the Council: The International Criminal Tribunals’, in Bruce Cronin and Ian Hurd, eds, The UN Security Council and the Politics of International Authority (Abingdon: Routledge, 2008), 131–​53. 82   Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford: Oxford University Press, 2013), p. 6 and passim. 80

richard collins   719 of (or at least reliance upon) ‘soft’ forms of regulatory output, such as UN General Assembly Resolutions, or the guidelines and codes of conduct of bodies like the UN Environment Programme (UNEP), or International Labour Organization (ILO). Further along the spectrum, we also find an increasing reliance upon the ‘soft’ normative output of non-​treaty or non-​governmental organizations (e.g. codifications/​reports of bodies such as the International Committee of the Red Cross) or indeed policy agreements, guidelines, and other instruments produced by informal transnational networks of actors operating below the level of interstate diplomacy.83 And at perhaps the furthest extreme, we might also include the ‘soft’ normative output of ‘soft’ international actors, which might include private-​ interest groups, multinational corporations, or informally constituted meetings of heads of States outside of traditional UN or other IGO diplomacy (e.g. meetings of the G20 or G7/​8).84 The normative force and impact of this range of standards, instruments, decisions, etc., will obviously vary greatly, not only regarding States, but also—​and increasingly importantly—​in bypassing State consent to impact at the domestic level, often in the absence of any countervailing or mediating form of democratic accountability. This kind of ‘relative normativity’ cannot but sit uneasily and controversially alongside the ‘standard view’ of international law’s authority, which—​as Çali suggests—​tends to stress the binary (binding/​non-​binding) nature of international legal normativity, and which remains neutral as regards how such norms are incorporated or otherwise at the domestic level.85 As such, in the absence of any (convincing) means by which to validate this kind of ‘post-​national’ normativity at source, or by some other form of ‘right procedure’, such normative practices seem to lack any a priori—​that is, content-​independent—​authority over international legal participants (broadly defined). On these terms, then, to speak in terms of ‘softness,’ or other more gradated, ‘relative’ account of legal normativity remains deeply problematic, jarring uneasily with the kind of rule of law values that are arguably inherent in the previously explained account.86 Whilst some international lawyers have suggested that the normative impact of this kind of institutionalized law-​making should simply be assessed by any given norm’s ability to effect compliance,87 as before, this kind of assessment 83  See principally Anne-​Marie Slaughter, A New World Order (Princeton:  Princeton University Press, 2004). 84   See e.g., Jan Klabbers, ‘Institutional Ambivalence by Design: Soft Organizations in International Law’, Nordic Journal of International Law 70 (2001):  403–​21; Jarna Petman, ‘Deformalization of International Organizations Law’, in Jan Klabbers and Åsa Wallendahl, eds, Research Handbook on the Law of International Organizations (Cheltenham: Edward Elgar, 2011), 398–​430. 85  Çali, The Authority of International Law, pp. 28–​32 ff. 86  See e.g., the criticisms of Jan Klabbers, ‘The Redundancy of Soft Law’, Nordic Journal of International Law 65 (1996): 167–​82. 87   See e.g., José E. Alvarez, International Organizations as Lawmakers (Oxford: Oxford University Press, 2005).

720    sources and the legitimate authority of international law seems to essentially deny the authority of such rules altogether (at least on our settled understanding of legitimate authority, as revealed above). The question of legitimate authority cannot simply be reduced to a sociological enquiry into what is accepted in practice, ex post facto, but must instead act as a counter-​ factual normative standard by which to judge the question of compliance or conformity.88 Whilst it might not hurt, therefore, to simply deny any a priori authority to many of these institutionalized normative practices, others have instead sought to question whether we might reformulate or augment the doctrine of sources to account for the legitimate authority of this kind of ‘post-​national’ rule-​making. This argument often highlights the need for some heightened form of legitimacy assessment, often grounded in a concern for the rule of law and the apparent ‘publicness’ of the actor,89 or instrument involved.90 This is exemplified by the ‘Global Administrative Law’ project, in which a specific class of institutional practice is distinguished and seen to be mediated by reference to its ‘public’ character,91 as well as—​more extensively—​much of the ‘global constitutionalist’ literature, which seeks to operationalize a value-​based assessment of constitutional compliance as a compensatory response to the perceived impacts of global governance activities on rule of law standards at the domestic level.92 As well-​meaning as many of these efforts are, there is an ironic movement apparent here, insofar as the concern to bring legitimacy through a formal ‘gatekeeper’ requirement causes a push towards an informal mode of normative assessment—​seemingly in tension, therefore, with the very same rule-​of-​law concerns that propelled these approaches in the first place. As noted above, insofar as the doctrine of sources contains within itself a view of international law’s legitimate authority expressed through content-​independent normativity, in contrast many of these perspectives end up justifying the formalization of criteria that are, by their very nature, content-​dependent rather than independent.

88   See on this distinction, Samantha Besson, ‘The Authority of International Law—​Lifting the State Veil’, Sydney Law Review 31 (2009): 343–​80, 345, 371. 89   See, most recently, Matthias Goldmann, ‘A Matter of Perspective:  Global Governance and the Distinction between Public and Private Authority (and Not Law)’, 15 January 2015,, accessed 27 June 2016, in which legitimate international public authority is identified on the basis of whether ‘the actor may reasonably claim to act on behalf of a community of which the affected person or entity is a member, or a member of such member’ (p. 18). 90   Matthias Goldmann, ‘Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority’, German Law Journal 9 (2008): 1865–​1908. 91   Benedict Kingsbury, ‘The Concept of “Law” in Global Administrative Law’, European Journal of International Law 20 (2009): 23–​57, 31–​3. 92  See e.g., Anne Peters, ‘Compensatory Constitutionalism:  The Function and Potential of Fundamental International Norms and Structures’, Leiden Journal of International Law 19 (2006): 579–​610, 585.

richard collins   721

3. A Way Forward? As I have argued elsewhere, there are thus good reasons to leave certain ‘sources’ of post-​national legal normativity outside of international law’s formal criteria of validity.93 To the extent that many of these normative practices remain contested and controversial, the ability to decry their ‘non-​legality’ by reference to agreed-​ upon criteria that do not invoke the very same values which might be the source of conflict in the first place, still seems important to the legitimate authority of the system overall. Whether, and to what extent, such norms are accepted as legitimate may well—​it is true—​depend on an evaluative assessment of their content as such, and not their source, pedigree, or other rightful—​that is, authoritative—​procedure. However, the point is that the judgement required in making such determinations is not susceptible to being publicly promulgated without a concomitant acceptance of some agreed procedure or institution with the ability to determine authoritatively what such values might mean in any given situation. At the same time, it is equally clear that sources doctrine cannot fully capture an account of international law’s legitimacy in an age of global governance. We might develop a more convincing account of international law’s legitimacy by pitting these two types of normative assessment against each other—​content-​independent versus content-​dependent normativity—​in a delicate, necessary, but precarious institutional balance. On the one hand, international law’s legitimacy would thus come from the authority of its formal sources, however outdated or in need of supplementation in practice. On the other hand, the legitimacy of international law broadly defined would seem to depend at least in part upon its perceived adherence to certain increasingly accepted substantive principles of constitutional justice. Because of the inherent subjectivity of any such assessment, though, it remains impossible to institutionalize this form of normative evaluation as an a priori public standard that secures the authority of global governance institutions beyond their formal, treaty-​based aspects. In this way, and insofar as there is a risk that these subjective evaluation processes end up abused for specific ends, we must still retain a formal, source-​based ‘check’ by which it is possible to counter and contest such unilateral normative judgements. As such, in the absence of any appeal to some foundational principle of legitimacy, or in the absence of any other mediatory form of direct accountability (beyond the intergovernmental institutional form of international law, expressed through its sources), we can see how this delicate balance might be the only way of securing some measure of legitimacy to restrain the kinds of normative influences exercised outside of formal legality. In other words, there is a benefit to retaining a formal, institutional perspective as a mirror against which we can highlight the informal nature of, as well

  Collins, ‘Mapping the Terrain’.

93

722    sources and the legitimate authority of international law as power imbalances potentially perpetuated by, much of the rule-​making that takes place beyond our inherited legal forms.94

Research Questions • In what ways should accounts of the legitimate authority of international law respond to the shift towards more informal modes of international law-​making? • Do these shifts in law-​making practices make the ‘standard view’ of the authority of international law increasingly irrelevant, or even misleading?

Selected Bibliography Aspremont, Jean d’, Formalism and the Sources of International Law. A  Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). Besson, Samantha, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2010), 163–​85. Çali, Başak, The Authority of International Law:  Obedience, Respect and Rebuttal (Oxford: Oxford University Press, 2015). Christiano, Thomas, ‘Authority’, in Edward N. Zalta, ed., The Stanford Encyclopedia of Philosophy (Spring 2013 Edition), . Collins, Richard, ‘Mapping the Terrain of Institutional “Lawmaking”: Form and Function in International Law’, in Elaine Fahey, ed., The Actors of Postnational Rule-​Making: Contemporary Challenges of European and International Law (Abingdon: Routledge, 2015), 27–​46. Green, Leslie, ‘Legal Obligation and Authority’, in Edward N. Zalta, ed., The Stanford Encyclopedia of Philosophy (Winter 2012 Edition), . Gur, Noam, ‘Are Legal Rules Content-​Independent Reasons?’, Problema 5 (2011): 175–​210. Himma, Kenneth E., ‘Law’s Claim to Legitimate Authority’, in Jules Coleman, ed., Hart’s Postscript:  Essays on the Postcript to The Concept of Law (Oxford:  Oxford University Press, 2001), 271–​310.

  See on this point, Alexander Somek, ‘The Concept of “Law” in Global Administrative Law: A Reply to Benedict Kingsbury’, European Journal of International Law 20 (2010): 985–​95, 993–​4. 94

richard collins   723 Kammerhofer, Jörg, ‘Uncertainty in the Formal Sources of International Law: Customary International Law and Some of its Problems’, European Journal of International Law 15 (2004): 523–​53. Raz, Joseph, ‘The Problem of Authority: Revisiting the Service Conception’, Minnesota Law Review 90 (2006): 1003–​44.

Chapter 34

SOURCES AND THE LEGITIMATE AUTHORITY OF INTERNATIONAL LAW DEMOCRATIC LEGITIMACY AND THE SOURCES OF INTERNATIONAL LAW

José Luis Martí*

I. Introduction In a world in which international institutions proliferate exponentially, existing institutions accumulate more and more power, and State sovereignty appears to be shrinking, international law has gained importance and assumed a more active *  A previous version of this chapter was presented and discussed at the workshop ‘The Philosophy of International Law’ organized by David Lefkowitz and Joshua Kassner at the 23rd IVR World Congress held in Washington D.C. in July 2015. Some weeks later it was presented at an event organized by Marcelo Alegre and Julio Montero in the Argentinian Society of Analytical Philosophy (SADAF) in

josé luis martí   725 and central role in our everyday life. Asking what the sources of international law are is now a crucial question, and the response will identify legally valid mechanisms and processes of law-​making, as well as the ways valid international law can be created. This is necessary for recognizing which international decisions are simply an illegal imposition of force. Other chapters in this volume aim to respond to this question. But an equally, if not more, crucial question arises from the first: are such sources of law legitimate? It is insufficient to identify institutions and mechanisms of law creation as legally valid based on current standards of international law. What is highly important is to identify which of these valid institutions and mechanisms are legitimate, with a moral right to rule over us all. The assumption here is that legal validity and political legitimacy are two different things, and that many legally valid institutions are in fact illegitimate and therefore should not be allowed to make decisions that affect us in one way or another. A growing concern for many is that nation-​States appear to be losing sovereignty while the international institutions potentially inheriting this power seem insufficiently democratic.1 To examine this concern, I explore the complexities of legitimacy, with a focus on democratic legitimacy, when applied to the sources of international law. To be clear, this is not an exercise in international law theory concerned with conceptual or doctrinal issues, but rather an exercise in normative theory aimed at contributing to applied political philosophy. I begin in section II: The Concept of Sources of Law by defining the concept of ‘sources of law’ as I use it here. I continue in section III: The Sources of International Law by making some considerations about the sources of international law, and explaining why I will not rely on any specific international law theory to define such sources. Instead, I aim to make my analysis compatible with, and applicable to, any precise understanding of what the sources of international law are today. In section IV: The Concept of Legitimacy, I clarify the concept of political legitimacy. Given how confusing the existing discussion on legitimacy may be for many, especially for international lawyers, I outline in detail the two main approaches to the concept of legitimacy as advocated in political philosophy, and specifically

Buenos Aires. It was also discussed at the second meeting of contributors to The Oxford Handbook on the Sources of International Law organized in Fribourg, Switzerland, on 4–​5 September 2015 by Samantha Besson and Jean d’Aspremont. I want to thank the participants to all these events, as well as Richard Collins, María Victoria Inostroza, Nahuel Maisley, Samantha Besson, and Jean d’Aspremont for discussing my ideas and giving me invaluable feedback that has, I hope, significantly improved the original paper. I also thank Sabrina Voss for editorial assistance. 1   For a very popular expression of this concern, see Dani Rodrik’s trilemma in Dani Rodrik, ‘How Far will International Economic Integration Go?’, Journal of Economic Perspectives 14 (2000): 177–​86.

726    sources and the legitimate authority of international law in the literature of philosophy of international law. In section V: Requirements of Democratic Legitimacy, I review the general requirements of democratic legitimacy, exemplified in three principles and six general conditions derived from such principles. And I finish in section VI: The Democratic Legitimacy of the Sources of International Law by analysing and discussing two current trends in the discussion on the legitimacy of sources of law: namely, the preservation of a significant role for State consent and the advocacy of other actors and other forms of deliberative contestability. To conclude, I argue that the current sources of international law are far from democratically legitimate, making the abovementioned concerns well grounded.

II.  The Concept of Sources of Law Before assessing the legitimacy of the sources of international law, we must identify the sources themselves. First, however, I will comment on the general concept of sources of law. All modern legal systems distinguish between the law and the sources of law. Sources of law is surprisingly ambiguous in current legal theory, let alone in international law theory. The use of the word ‘source’ is obviously metaphorical. It refers to the origins of law, the places or sites from which the law ‘sprung’, where the law comes from, or where the law can be found. But this is simply explaining one metaphor with another. Different legal scholars use very different notions of the sources of law, including the causes or social origins of the law, the basis of the law, the instruments or materials in which the law can be found, the facts that make such legal instruments binding, the premise or reason used in a legal syllogism or reasoning, the processes by which the law can be enacted or created, the rules that define the mode of production of the law, and the ‘communitarian constraints’ that apply to the law.2 Part of this lack of agreement is conceptual, or even merely terminological. But other aspects are doctrinal or even normative: the sources of law may be viewed as connected to the rules that determine the validity or bindingness of the law. Thus, each concrete view of the sources of law is partly dependent on a more general understanding of what the law is or should be. It is legal theory’s duty, and beyond the 2  See e.g., Hugh Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014); Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–​85;

josé luis martí   727 scope of this chapter, to clarify what the doctrine of ‘the sources of law’ is or what such concept means. In this chapter, I follow Samantha Besson in her understanding of the sources of law as ‘all the facts or events that provide the ways for the creation, modification, and annulment of valid legal norms’, and in her subsequent claim that the sources of international law ‘refer to processes by which international legal norms are created, modified, and annulled, but also to the places where their normative outcomes, i.e. valid international legal norms, may be found’.3 I will focus on the first part of this last claim, viewing the sources of law as the mechanisms or processes by which the law can be validly created, and the rules that govern such creation. Much of what I will argue, however, would also apply using other views of the sources of law, although the terms of the argument would be somewhat different. But understanding the sources of law as the valid processes of law-​making has a clear advantage: it immediately connects sources with the issue of legitimacy and will help to address the question of who should create the law and how. If sources of law are the processes by which the law can be created, we must ask, which concrete mechanisms can validly create law. The response would be contingent and relative to each legal system. The doctrine of the sources of law is not a matter of conceptual necessity. Each legal system must be self-​referential in this respect, and provide its own list of valid modes of law production or creation, depending on the options that are seen to be acceptable by the legislators of that legal system or the higher officials who must apply it. It is true that substantial convergence occurs across legal systems, and most view sources as the same processes, including legislation, customary law, and the general principles of law. But some important differences subsist between the two main legal traditions: common law and civil law traditions, the status of judicial decisions and precedents, and so forth. What is more, these different views on the valid sources of law are an important factor in the contrast and differentiation among legal systems and traditions. Normally, lists of sources are conceived as a system in the sense that the different sources mentioned are usually hierarchically ordered. A legal operator who wants to identify the valid law applicable to a certain case must start looking for it within the first source of law, and only when that search fails should they recur to the next source. But this is not always the case. Several different sources might hold the same place in the hierarchy, and therefore play the same role in legal reasoning. This in Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011); Daniel P. O’Connell, International Law, 2nd ed. (London: Stevens & Sons, 1970), p. 7.   Besson, ‘Theorizing the Sources’, pp. 169–​70.

3

728    sources and the legitimate authority of international law fact is one of the main controversies regarding the sources of international law that has entertained international law theorists for decades. Whether a hierarchy of the sources of international law exists is a question that only international lawyers can answer. In sum, the identification of sources of law is relative to each legal system. At times this is an easy task because the legislator may have explicitly addressed the issue in a statute or legal provision, if not the constitution itself. At other times a deeper hermeneutical task is required to identify which sources are widely accepted as valid. Such is probably the case with international law, even with the help of Article 38 (1)  of the Statute of the International Court of Justice (ICJ).4 Thus, we are brought to the more specific question:  ‘What are the sources of international law?’

III.  The Sources of International Law How can we define the sources of international law? Do they form a system with hierarchical relations? Is there only one general system of international law, or different, irreducible international legal systems, each with its own potentially different system of sources? These are difficult questions that only international lawyers can answer. The locus classicus to identify the sources of international law is Article 38 (1) of the ICJ Statute, which establishes the following: Art. 38 (1): The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Even if this statute is held up in the ICJ, and not in the entire international law system, the traditional interpretation is that ‘the opening phrase stating that the Court’s function is “to decide in accordance with international law” confirms that the application of sub-​paragraphs (a) to (d) will result in international law being

  Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993).

4

josé luis martí   729 applied; i.e. that no international law is to be found elsewhere, and that everything pointed to as being such by those sub-​paragraphs is indeed international law’.5 But are these the only existing sources of international law? What place do international organizations and their decisions have in this system? What about actors other than States and their international governmental organizations (IGOs), such as hybrid organizations or transnational non-​governmental organizations (NGOs)? What about the mechanisms of soft law, even if not enacted by an international convention, traditional IGO, or sustained practice among States? In a way, Article 38’s system of sources instantiates a traditional idea of international law that was fully coherent at least until the 1940s, but which for many is no longer representative of the growing complexity, both in terms of actors and processes, that can be found in current international law. What, then, is the alternative to Article 38 (1)? As I stated earlier, the job of identifying the exact sources of international law belongs to international law theorists, and this chapter is not an attempt to contribute to such a task. Instead, I am providing an exercise of political philosophy and, more concretely, of the theory of legitimacy applied to the sources of international law. However, to assess the legitimacy of such sources we would in theory need to start identifying, or at least assuming, a concrete list of sources. Fortunately, that may not be necessary. An exercise of political philosophy like this might proceed in two ways. It might, in effect, presuppose or take for granted one concrete characterization of the sources of international law—​perhaps the traditional characterization stated in Article 38 (1)—​and then determine whether such a system of sources is legitimate in accordance with some democratic theory of legitimacy. Alternatively, I might determine the requirements or standards that a democratic theory of legitimacy would impose on potentially any system of sources of international law. Armed with that instrument, international lawyers would be able to assess any concrete doctrine of sources by assessing it against such standards. In this chapter, I follow the second strategy as it is of potential interest to a greater number of people, and will give us the flexibility needed to try to apprehend the complex, ever-​evolving international order. Even if legitimacy is partly a contextual normative standard and one that instantiates in some institutional contexts, as I will immediately argue, its content must not depend on concrete sources that are identified as valid. Only if it substantially detaches from them can it preserve the desired normativity. Only if the standard of legitimacy is significantly independent from the sources of law considered legally valid can it be useful for their normative assessment. In other words, to the extent that normative legitimacy and legal validity are two separate questions, an assessment of legitimacy must be significantly neutral to the view that we hold of the legal validity of certain sources of law in a specific legal system. In sum, we must ask, regardless of the concrete sources of

 Thirlway, The Sources of International Law, pp. 5–​6.

5

730    sources and the legitimate authority of international law international law, whether hierarchically ordered or specific to a certain international law system, what we can say about the legitimacy of these sources.

IV.  The Concept of Legitimacy In section III: The Sources of International Law, I held that identifying the sources of law relates to an empirical, contingent issue relative to each particular legal system. However, questioning the legitimacy of the sources of law is a normative issue, not an empirical one. As I argue above, identifying a standard of normative legitimacy that may be applied generally to different legal systems and different systems of sources, whatever their type, must be possible. Such a standard is partly contextual, of course, and necessarily adopts different concrete forms in different contexts or when applied to different institutions or sources. But the basic values involved in any assessment of legitimacy and the general requirements derived from such values must essentially be the same. Traditionally, a distinction is made between descriptive or subjective legitimacy, on the one hand, and normative or objective legitimacy on the other. Sometimes the word ‘legitimacy’ is used to refer to the subjective perception of the people subject to certain institutions, as in the classic analysis by Max Weber. In that sense, an institution—​or a source of law—​is legitimate if the people who are subject to that institution perceive it as legitimate or acceptable. The interpretation of legitimacy I am interested in here is different, however, and refers instead to the objective normative features that sources of law, institutions, and concrete decisions may have, regardless of how people perceive them. It is a response to the question, ‘What institutions—​or sources of law—​should we have or should be established?’ It is also important not to conflate justice with legitimacy, the two domains of political philosophy. Most contemporary political philosophers accept that one thing is the justice of a decision, an institution, or an entire basic structure, while its legitimacy is quite another.6 These two standards or ideals may not be totally

 See e.g., John Rawls, ‘Reply to Habermas’, Journal of Philosophy 92 (1995):  132–​80; Thomas Christiano, The Constitution of Equality (Oxford: Oxford University Press, 2008); Jürgen Habermas, ‘Reconciliation through the Public Use of Reason:  Remarks on John Rawls Political Liberalism’, Journal of Philosophy 92 (1995): 109–​31; Ronald Dworkin, Justice for Hedgehogs (Cambridge: Belknap Press of Harvard University Press, 2011), pp. 321–​3, and ch. 18; Philip Pettit, On the People’s Terms (Cambridge:  Cambridge University Press, 2012), pp. 18–​ 25, and ch. 3; and Thomas Christiano, ‘Authority’, in Edward N. Zalta, ed., The Stanford Encyclopedia of Philosophy (Spring 2013) , accessed 6 January 2017. 6

josé luis martí   731 independent from each other, but they are distinct. Thus, certain institutions or decisions can be legitimate and unjust, or just and illegitimate, at the same time. The best way to understand the distinction between justice and legitimacy is through the idea of division of labour and the notion that justice and legitimacy respond to different questions. Justice, on the one hand, is a response to the question of what should be done by political institutions or by the law; that is, what the content of political and legal decisions should be. The ideal of (distributive) justice is realized when a concrete state of affairs in the distribution of goods and resources, defined by some normative standard, is achieved. A political decision is just if it serves to approximate this state of affairs. Legitimacy, on the other hand, is a response to the question of who should make the political and legal decisions that serve to approximate this ideal of justice, and how they should do it. The ideal of legitimacy may be realized when all political and legal decisions are made by people who have the right standing and through the best procedures as defined by some normative standard. Thus, a decision might be just—​that is, substantively correct—​from the point of view of the ideal or standard of justice, and still be illegitimate because it was made by the wrong people or through the wrong procedure. Conversely, a decision might be legitimate, according to some standard of legitimacy, and yet be unjust because its content does not serve the purpose of approximating justice. Some may well think that justice is all that matters, or at least that it is far more important than legitimacy, since what we should care most about is the substantive content of political and legal decisions. Important as such content is, however, legitimacy is crucial for at least two reasons. First, disagreement about justice and about what counts as a just decision is frequent. Given the pervasive pluralism in modern societies, the question of who is making decisions in the name of all, and how, becomes crucial. However, even if we agree on what is just, we are not indifferent to the question of legitimacy. We care about being able to make our own decisions, even if we make mistakes. We also care about who is making the decisions that affect our lives and how they do it. The same occurs with political or collective decisions. Only some agents, in some circumstances, and through certain specific procedures, will have the correct standing to have the right to rule over us. The who and the how, in politics, is at least as important as the what, and some may even say that it is more so.7 This leads us to the core of the concept of legitimacy. A legitimate institution has the right to rule over people subject to that institution. It has the adequate standing to make political decisions in the name of all. And it gains this right to rule or standing (mostly) by whom this institution represents or is integrated by and how its decisions are made. The normative implications that follow from conceding an

  See e.g., Habermas, ‘Reconciliation’, and Pettit, On the People’s Terms, pp. 23–​5.

7

732    sources and the legitimate authority of international law institution the right to rule are controversial and open to discussion. But again, only some specific agents in the right circumstances, and following an adequate procedure, may have the legitimate authority to rule over us. Thus, it is clear why the normative assessment of the sources of law must be taken on by the theory of legitimacy, and not any other domain of political philosophy. Sources of law, as we saw in the previous sections, designate the processes of law creation that are valid in a specific legal system. But different legal systems may have different systems of sources, and not all need be morally acceptable. Even authoritarian regimes have systems of sources of laws that define their conditions of legal validity, although this does not make them legitimate. Only sources of law that are consistent with the objective normative standard of legitimacy mentioned above may be considered legitimate. Political philosophers have extensively discussed how exactly this right to rule and its implications should be understood.8 While we do not need to examine that debate here, it may be useful to distinguish between two different general approaches or perspectives of the concept of legitimacy.9 In this chapter, I focus mainly on the second, but it is important to distinguish it from the other more popular approach, to avoid any confusion. First, legitimacy can be viewed as a binary concept. Institutions, decisions, or sources of law can be, in this account, either legitimate or illegitimate. It is all-​or-​ nothing. A  theory of legitimacy, from this perspective, must provide the set of necessary, and jointly sufficient, conditions that institutions, decisions, and sources of law must meet to be legitimate. This is not incompatible with the fact that some of these conditions may be scalar. In this case, this first view need only use a threshold to define the minimal degree of compliance with the conditions needed for legitimacy. Public transparency may be a requirement of legitimacy, and it is obviously a scalar property: the proponents of this first approach need only identify the threshold of minimal transparency that is necessary, jointly with other conditions, for an institution to be legitimate. Different versions of this first approach have been advocated, and some remain very popular. For a long time, the most common understanding of legitimacy has been connected with the duty to obey for those subject to the institution that claims such authority. In terms popularized by the last largely influential version of such a perspective, Joseph Raz’s theory, a legitimate authority has the right to rule when it 8   For overviews of this discussion, see Christiano, ‘Authority’; Richard Dagger and David Lefkowitz, ‘Political Obligation’, in Zalta, ed., The Stanford Encyclopedia of Philosophy (Fall 2014) , accessed 6 January 2017; Leslie Green, ‘Legal Obligation and Authority’, in Zalta, ed., The Stanford Encyclopedia of Philosophy (Winter 2012), , accessed 6 January 2017; and William Edmundson, ‘State of the Art: The Duty to Obey the Law’, Legal Theory 10 (2004): 215–​59. 9   These two approaches are not necessarily incompatible with each other. They might simply put different relevant questions on the table. But theorists of legitimacy usually give pre-​eminence to one or the other, and see legitimacy as reducible to it.

josé luis martí   733 offers those subject to it content-​independent reasons for the action prescribed by that authority, and such reasons pre-​empt personal judgement.10 When the necessary and jointly sufficient conditions of legitimacy are met—​and different theories will, of course, identify different sets of conditions—​the people subject to that authority will be bound to obey its mandates. Some philosophers, however, find the correlation with the duty to obey too strong and advocate for less demanding implications of legitimacy. They have argued that the right to rule is correlated with other kinds of duties, such as the duty not to interfere in the decision-​making process and the enforcement of the decisions already made by the authority, the duty to accept punishment in the case of disobedience, or the duty to see those decisions as justified.11 In all these versions of the first approach, the right to rule is correlated with some specific duty or obligation, the existence of which is binary—​either the people subject to the authority have the duty to obey or they do not. Therefore, their conception of legitimacy must be necessarily binary as well: institutions—​or sources of law—​are either legitimate or illegitimate.12 The second approach, in contrast with the first, is not binary but scalar. Here, political legitimacy is not defined by a set of necessary and jointly sufficient conditions, but by a regulative ideal. An ideal legitimate institution is one that has the right to rule. Maybe this right to rule is correlated, in ideal conditions, with a duty to obey, or some other duties. This is not important, however: this ideal, it is assumed, is very hard—​even impossible—​to achieve. What is important in this second perspective is that the ideal standard of legitimacy is conceived as a scale that can be used to assess the different degrees of legitimacy that real institutions, decisions, or law-​making mechanisms have in the real world. Real legitimacy, for those who adopt this view, comes in degrees. The relevant question is not whether an institution or a source of law is legitimate or illegitimate, but how legitimate it is when compared with others and assessed against the ideal standard of legitimacy. This standard, then, is inherently comparative. It allows us to rank existing institutions as well as counterfactual ones and compare them. The standard is also usually 10   See Joseph Raz, ‘The Problem of Authority: Revisiting the Service Conception’, Minnesota Law Review 90 (2006): 1003–​44. The Razian view is not only very popular among theorists of legitimacy in general, but also among philosophers of international law in particular. See, for instance, Besson, ‘Theorizing the Sources’; David Lefkowitz, ‘The Sources of International Law:  Some Philosophical Reflections’, in Besson and Tasioulas, eds, The Philosophy of International Law, 187–​203; and John Tasioulas, ‘The Legitimacy of International Law’, in Besson and Tasioulas, eds, The Philosophy of International Law, 87–​115. 11   See for instance, Edmundson, ‘State of the Art’. For an account of all these different views, see Christiano, ‘Authority’ and Green, ‘Legal Obligation and Authority’. 12   Some see the right to rule as a liberty right, not as a claim right, and therefore they do not think that such a right to rule is necessarily correlated to any specific duty or obligation. See e.g., Robert Ladenson, ‘In the Defense of a Hobbesian Conception of Law’, Philosophy and Public Affairs 9 (1980): 134–​59. But as they see this liberty right as permission to make coercive decisions that institutions may either have or not have, they still fall under the same binary logic of this first approach.

734    sources and the legitimate authority of international law conceived as complex: it is seen to be constituted by different factors or criteria that represent all the things we care about in legitimacy.13 This second approach presupposes that we may identify several factors that compose the scalar standard, measure the degree to which they are satisfied, and weigh them against each other—​perhaps attributing each of them a different weight or value—​to obtain a total measure of how close an institution ranks to the ideal when compared with others. It requires an ordinal scale, not necessarily a cardinal one. In any case, for this view to work, we do not need to establish complete, exact measurements, nor do we need to be totally aware of all the requirements that legitimacy may impose on all levels of the scale. The scalar ideal of legitimacy, therefore, may be partly open or indeterminate. And it is reasonable to assume that many nuances of the higher levels of the scale will only be perceived as we approach them. When we start building a democracy or establishing a practice of transparency, we may be partly unaware of all the complexities involved in the most sophisticated, advanced forms of democracy and in the highest levels of transparency. As we move towards the ideal, we discover new strict conditions of legitimacy, allowing our understanding of perfect legitimacy to evolve across time, not unlike an expanding circle. The scalar approach is, however, compatible with drawing some thresholds of legitimacy. For each factor that constitutes the standard of legitimacy, we could draw a line of satisfaction below which an institution, decision, or source of law would not be regarded as sufficiently legitimate. But these thresholds are contextual and highly arbitrary. Let us return to the example of transparency. In certain contexts, such as international institutions, we may establish certain minimal requirements of transparency that we may want to impose on existing institutions. But once that contextual threshold has been achieved, the duties of legitimacy in terms of transparency are not fully satisfied or cancelled at all. The mandate would then be to continue approaching the ideal of transparency. Thus, thresholds play very different roles in these two approaches. While in the first they are defined as a set of necessary and jointly sufficient conditions of legitimacy, the satisfaction of which cancels further conditions of legitimacy because that is what the binary logic implies, in the second approach thresholds are only intermediate steps in a very long, possibly endless 13   An excellent example of this second approach in the philosophy of international law is this recent but influential work:  Allen Buchanan and Robert Keohane, ‘The Legitimacy of Global Governance Institutions’, Ethics and International Affairs 20 (2006):  405–​34. Other views of this scalar notion can be found, among others, in Simon Caney, ‘Cosmopolitan Justice and Institutional Design:  An Egalitarian Liberal Conception of Global Governance’. Social Theory and Practice 32 (2006): 725–​56; James Bohman, Democracy across Borders (Cambridge:  MIT Press, 2007); or Thomas Christiano, ‘Democratic Legitimacy and International Institutions’, in Besson and Tasioulas, eds, The Philosophy of International Law, 119–​38; Andrew Kuper, Democracy beyond Borders. Justice and Representation in Global Institutions (Oxford: Oxford University Press, 2006); William D. Coleman and Tony Porter, ‘International Institutions, Globalization and Democracy:  Assessing the Challenges’, Global Society 14 (2000): 377–​98; or Michael Zürn, ‘Global Governance and Legitimacy Problems’, Government and Opposition 39 (2004): 260–​87.

josé luis martí   735 process. They are basically signposts that indicate the path towards the ideal, and after reaching one we must start identifying the next. It must be noted that in this second conception of legitimacy, the implications of the right to rule in terms of the duty of those subject to it is far less pressing. The right to rule might be correlated to a general duty of respecting legitimate institutions that may instantiate with different intensities, depending on how close we are from ideal legitimacy. The more legitimate an institution is, the greater respect we owe to it. And this may instantiate, gradually, by adding different concrete duties—​acceptance of punishment in case of disobedience, non-​interference, and obedience—​as we approach the ideal.14 The focus, however, is not on the implications in terms of duty, but on how to improve the legitimacy of existing institutions or identify what institutions we might create from scratch as a better alternative. I will use this second approach to legitimacy, which I find more useful, particularly in an area as puzzling as international law, for the purposes of this chapter. I have clarified, then, the notion of legitimacy that I will apply to sources of international law and I have explained why it is so relevant. But I have still said nothing about the main requirements that legitimacy imposes on such sources.

V. Requirements of Democratic Legitimacy As we have seen, the theory of legitimacy addresses who has the right to rule. This question is important because we disagree about justice and want collective decisions to be more than merely just or substantively correct: they must be our own, in one way or another, and fair to all. According to Thomas Christiano: when there is disagreement among persons about how to structure their shared world together and it is important to structure that world together, the way to choose the shared 14   An alternative way to explain the contrast between these two approaches is by differentiating between the focus or the viewpoints of each. Thus, we might say that the first focuses on the viewpoint of the authority itself—​trying to identify to what extent, in what conditions, or on what issues it may rule—​and of the people subject to it—​trying to identify the exact duties or obligations they have with respect to the rules imposed by that authority. In contrast, the second approach focuses on the viewpoint of the institutional designer or reformer, the person or group of people who care about improving the legitimacy of an institution or a law-​making process. Institutions that fall below a minimal threshold of legitimacy may still be more or less illegitimate, and it is crucial to identify how they must be reformed in order to reach the threshold. But even institutions that are minimally legitimate are imperfect and susceptible to being improved, and again it is crucial that we identify how to do it.

736    sources and the legitimate authority of international law aspects of society is by means of a decision-​making process that is fair to the interests and opinions of each of the members. . . . Each person thinks that the ideas about justice and the common good with which the others wish to organize their shared world are mistaken in some way. Yet there is a need for collective action. The only way to do this that is reasonably fair to all the members is to make the decision democratically.15

Most theories of legitimacy, at least at the domestic level, have consequently been developed within the framework of a basic democratic principle, with the ultimate source of legitimacy being the people’s will. In general, only regimes that are democratic are considered legitimate. This is compatible, pace Rousseau, with political representation. The people at large can elect representatives and delegate some of their power to them. Those representatives, then, can legitimately hold law-​making power. But it is crucial not to forget that such power can only derive from the people. That is precisely why the principle emphasizes that the people’s will is the ultimate source. All that is needed is that the people retain the ultimate, effective control over institutions and the decisions they make, allowing them to remain the ultimate authors of laws that are democratic and therefore legitimate. We may call this the principle of ultimate popular control.16 This principle is also compatible with legitimate institutions that are not directly democratic, or even representative. Courts, central banks, or other independent agencies, are not, and yet they are usually considered legitimate—​at least in some circumstances. But one of the conditions normally singled out for them to be legitimate is to receive their power or authority from an overall democratic regime, perhaps through a democratic constitution.17 In sum, as well as being compatible with the delegation of power, the principle of ultimate popular control is compatible, both in representative institutions and non-​representative, with indirectly democratic ones. It clearly tells us who has the standing to make binding decisions in our societies: any number of institutions or agents, so long as they ultimately receive their power from, and are effectively controlled by all the people subject to their decisions.18 Democratic legitimacy imposes other requirements on institutions, decisions, and law-​making processes, however, regarding how the law must be created or the decisions made. Different democratic theories, of course, identify different

  Christiano, ‘Authority’.   For a recent and particularly straightforward view on what I call the principle of ultimate popular control, see Pettit, On the People’s Terms, chs 3–​5. 17   This is the difference between courts in a democratic system and courts in an authoritarian regime. The former are, somehow, indirectly democratic, since their power has been democratically delegated by the people, and thus legitimate. The latter are not, because the power authoritarian regimes hold is not at all legitimate, and therefore they cannot delegate such power legitimately. 18   I leave aside here the hard question of the boundary problem; that is, the question of who exactly constitutes the demos or people who hold this ultimate authority, and whether the all-​affected principle, the all-​subjected principle, or another alternative is the more adequate answer. 15

16

josé luis martí   737 additional requirements, and this is not the time to review all of them. I will focus on what I take as the two most basic ones, which are also widely shared by most contemporary accounts: namely, what I call the principle of democratic equality and the principle of deliberative contestability. All democratic theories advocate some version of the principle of democratic equality, whether it be political power equally distributed among citizens, equal opportunity to determine political decisions, equal respect for each citizen’s opinion, or equal concern for their interests. In any case, this principle is able to ground the specific rights of citizen participation, which range from electoral or voting rights in the election of popular representatives to a more generic right to an equal say in the production of law.19 Abstract as it is, this principle tells us much about how the law-​making processes that define the sources of law must be: all citizens must have a direct or indirect say and be treated fairly and with equal concern in such processes, or, minimally, have a fair share in the exercise of ultimate, effective, popular control. Another central pillar to a democratic standard of legitimacy is the principle of deliberative contestability. For the decisions and law-​making processes of public institutions to work adequately, a vibrant public sphere hosting multiple dynamic formal and informal processes of public deliberation, and an active and civically spirited citizenry capable of contesting the decisions made by such institutions are vital.20 These I take to be the conditions of deliberative contestability. This requirement is derived from the need for mechanisms that make ultimate popular control possible and effective. The aim of this ultimate control must be to ensure that representative institutions not only make decisions that promote the interests of the people, but also that they do it on the people’s terms.21 Law-​making institutions must be transparent, accountable, and responsive to what the people want and demand.22 Mechanisms must be in place to enable the public capable of engaging in a deliberative relationship with such institutions and exercising the right influence over the legislators or lawmakers. The concrete processes of law-​making must in turn be deliberative, open, and as inclusive as possible. Based on the three principles described above to address the who and how of true democratic legitimacy, six conditions should be met, in my view. In terms of who has the standing to rule in our name and make decisions that affect us, (i) any institution creating law must receive its power from the people subject to that law; and, perhaps even more importantly, (ii) the same people must retain ultimate and 19   See, for an overview, Thomas Christiano, ‘Democracy’, in Zalta, ed., The Stanford Encyclopedia of Philosophy (Spring 2015),, accessed 6 January 2017 and Christiano, ‘Authority’. 20   See Jürgen Habermas, Between Facts and Norms (Cambridge: MIT Press, 1996), ch. 8, and Pettit, On the People’s Terms, ch. 4. 21   See Pettit, On the People’s Terms. 22   Buchanan and Keohane, ‘The Legitimacy of Global Governance Institutions’.

738    sources and the legitimate authority of international law effective control over these institutions and their decisions. In terms of how such institutions and the law-​making processes must operate, (iii) they must be transparent, accountable, and responsive to what the people want them to do and be internally open, inclusive, and deliberative; (iv) mechanisms of deliberative contestation between institutions and the public must be in place; and (v) there must be a vibrant public sphere with quality formal and informal public deliberation. Finally, (vi) all these processes must involve the equal participation of individual citizens in public affairs and, particularly, in the exercise of ultimate control. With these requirements in hand, it is possible to evaluate specific institutions and law-​making processes in terms of democratic legitimacy at any level. As I argued in section IV: The Concept of Legitimacy, concrete standards of legitimacy and the concrete mandates that derive from them can only develop contextually according to the circumstances where they apply. Thus, the kind of institutions that have crystallized in modern, domestic democracies may not be applicable at the international level, as they might become obsolete at some point for the domestic level as well. But the values and general criteria that constitute the standard of legitimacy, the ones I have identified in this section, cannot be different. The contextual character of legitimacy means that the same values, principles, and general requirements that constitute its standard may instantiate differently, and therefore trigger different concrete mandates, in different circumstances. But the general principles of legitimacy are always the same. Thus, the question now is, how can we apply these general requirements of democratic legitimacy to the sources of international law? And this is what I turn to in section VI: The Democratic Legitimacy of the Sources of International Law.

VI.  The Democratic Legitimacy of the Sources of International Law Simply put, any sources of international law may be democratically legitimate if they respect the principles of ultimate popular control, democratic equality, and deliberative contestability. The greater their respect for these principles, the greater their legitimacy. How is this accomplished? In terms of ultimate popular control, while we do not yet have a global representative parliament with law-​making power delegated by the people or a modern representative constitutional democracy working at the global level, those traditionally considered to hold law-​making power at the international level are sovereign States, according to the so-​called Westphalian model of international law. These States, in

josé luis martí   739 this traditional view, are the only actors allowed to create international law, both by their explicit consent expressed in conventions and treaties (the first source of international law according to Article 38 (1) of the ICJ Statute) and by their practices crystallized as international custom (the second source of international law according to Article 38 (1)). Even the general principles of international law are valid only if ‘civilized nations’ first recognize them, and the authority of international judicial decisions can only be derived, in theory, from the previous recognition or authorization of these States. Thus, States are the central authors of international law, typically through the mechanism of State consent. Many international laws are, of course, created by other agents, including IGOs. But their power must ultimately derive from the States themselves, who consented to their creation and delegated some power to them. Is this legitimate? Perhaps, but only if the mechanism of State consent respects the three basic principles of democratic legitimacy outlined above, particularly the principle of ultimate control. In lieu of a global parliament, States—​or their governments—​may well be the legitimate representatives of their respective peoples in international democratic participation. Through the mechanism of State consent, the people may exert effective, ultimate control over the international system, international institutions, and international law-​making processes. Many contemporary accounts of international democratic legitimacy have maintained a role for State consent among the legitimate sources of international law.23 But can State consent really be a good second-​best alternative to a global parliament that directly represents all peoples in terms based on the three general principles of democratic legitimacy? The mechanism of State consent is a highly imperfect way to implement the requirements of democratic legitimacy for at least six reasons. First, mechanisms of State consent at present seem to be vanishing or fading away.24 The most robust and straightforward form of State consent is veto power, such as when States sign treaties and conventions in the creation of a new institution or an IGO. Once these are created, however, States very rarely keep any veto power 23   See e.g., Philip Pettit, ‘Legitimate International Institutions:  A  Neo-​Republican Perspective’, in Besson and Tasioulas, eds, The Philosophy of International Law, 139–​61; Philip Pettit, ‘The Republican Law of Peoples: A Restatement’, in Barbara Buckinx, Jonathan Trejo-​Mathys, and Timothy Waligore, eds, Domination and Global Political Justice:  Conceptual, Historical, and Institutional Perspectives (London: Routledge, 2015), 37–​70; Christiano, ‘Democratic Legitimacy and International Institutions’; Thomas Christiano, ‘Is Democratic Legitimacy Possible For International Institutions?’, in Daniele Archibugi, Mathias Koenig-​Archibugi, and Raffaelo Marchetti, eds, Global Democracy: Normative and Empirical Perspectives (Cambridge: Cambridge University Press, 2011), 69–​95. A less central, but still important, role of State consent can be found in Buchanan and Keohane, ‘The Legitimacy of Global Governance Institutions’; and Samantha Besson, ‘State Consent and Disagreement in International Law Making—​Dissolving the Paradox’, Leiden Journal of International Law 29 (2016): 289–​316. 24   See Besson, ‘State Consent and Disagreement’; for a more general overview of the situation of State consent, see Charlotte Ku, International Law, International Relations and Global Governance (London: Routledge, 2012).

740    sources and the legitimate authority of international law to exert control over their actions. The role of States is diminishing at the international level as IGOs become more autonomous than ever. States rarely participate in law-​making processes, particularly in some regimes such as human rights law, international environmental law, and international criminal law, and when they do, increasingly common passive assent mechanisms and majority rule, among other types of processes, diminish their effective control. Many IGOs today are not even created by States, but by other IGOs, functioning as independent agencies with little or no supervision by State delegates.25 Secondly, not all States are democratic. Only democratic State governments can claim to represent their people and therefore allow them to claim ultimate control over international law-​making. Any other States only represent the will of a few de facto government representatives, with no hope of their people having ultimate control over the international system.26 The principle of ultimate popular control is violated, as a result, for those peoples. But the problem is even worse. The principle of democratic equality in these cases is violated as well, since undemocratic governments with no legitimacy can normally have the same vote in the current system that democratic countries have. With hardly one-​half of the world’s governments being minimally democratic, this is highly problematic.27 Undemocratic, illegitimate governments can easily block or veto decisions supported by democratic States, violating the principle of democratic equality. To address this, most views of international legitimacy restrict the mechanisms of State consent to democratic States only.28 The current system of sources of international law is therefore partly illegitimate because it fails to differentiate between democratic and undemocratic States. Furthermore, the principle of State consent becomes conditional to a highly utopian restriction: the exclusion of non-​democratic States from international law-​ making processes. Thirdly, the principle of ultimate effective popular control is not well secured, even in democratic States. The chain of power delegation is too indirect and specific mechanisms to allow the people to exert effective control over international 25   According to Charlotte Ku, about 70% of existing IGOs have been created not by States, but by other IGOs, the so-​called emanations. Some emanations have been created, in turn, by other emanations, and so on, up to IGOs of fifth generation. See Ku, International Law, p. 51. 26   See Christiano, ‘Democratic Legitimacy and International Institutions’; Christiano, ‘Is Democratic Legitimacy Possible’; Buchanan and Keohane, ‘The Legitimacy of Global Governance Institutions’; and Besson, ‘State Consent and Disagreement’. 27   See e.g., the ‘Democracy Index 2016’, elaborated by The Economist Intelligence Unit, according to which only seventy-six States can be considered full or flawed democracies, while ninety-one others are hybrid or authoritarian regimes. 28  For instance, Pettit, ‘Legitimate International Institutions’; Pettit, ‘The Republican Law of Peoples’; Christiano, ‘Democratic Legitimacy and International Institutions’; Christiano, ‘Is Democratic Legitimacy Possible’; Buchanan and Keohane, ‘The Legitimacy of Global Governance Institutions’; Jürgen Habermas, The Inclusion of the Other, trans. Ciaran Cronin and Pablo De Greiff (Cambridge: MIT Press, 1998), ch. 7; Jürgen Habermas, The Divided West, trans. Ciaran Cronin (Cambridge: Polity, 2006).

josé luis martí   741 institutions and international law-​making are lacking. Citizens are frequently less interested and less informed on foreign affairs than they are in domestic politics.29 Even when this is not the case, the only mechanism to exert any control on international law-​making is through governments, specifically through agendas in periodic elections. But often such agendas do not emphasize international issues, leaving concerned citizens the only option of making such issues salient in a future election and trying to find an alternative government committed to addressing it. This mechanism is too difficult and indirect, and for that reason it is ultimately ineffective.30 Fourthly, State consent is often just a formal principle based on the idea of sovereignty but with little real-​life correlation. The existing imbalance of power among States, or among IGOs and States, often places weaker States in a position of subordination or very low bargaining power. State consent, under some circumstances, may play a rather symbolic role. The mechanism of State consent can respect the principle of ultimate popular control only if it serves as an effective tool to exert ultimate control over the immediate lawmakers. I mentioned above the enormous difficulties that the people of democratic countries may face in order to effectively use their domestic elections and governments to exert control. Now we add that, at least for the not-​so-​powerful countries, even if governments act according to their people’s interests and preferences, they may lack effective mechanisms to exert control over the international lawmakers due to the great imbalances of power among States. If that is true, such imbalances of power constitute an objective difficulty to implement the principle of ultimate effective control. But, in addition to that, they will also compromise the principle of democratic equality. For such principle to be respected, the peoples of some countries should not have more power in terms of ultimate control than the peoples of other countries, at least not because of their respective countries’ military or economic power. And this brings me to the next point. Fifthly, in the current international order, State consent is usually connected to the principle of State sovereignty under the presumption that each State should have roughly the same political power in the creation of international law, although we know this may not be true. But there are other contexts in which, at least formally,

  See Robert Dahl, ‘Can International Organizations be Democratic? A  Skeptical View’, in Ian Shapiro and Casiano Hacker-​Cordón, eds, Democracy’s Edges (New York: Cambridge University Press, 1999), 19–​36 and Buchanan and Keohane, ‘The Legitimacy of Global Governance Institutions’. 30   There might be ways to alleviate such a problem, though. We might make more efforts to inform and educate our peoples about the importance of the international order, and innovate in creating a special State commissioner for international affairs, a person with the power to deal with international organizations and who could be directly elected by the people on a specific international agenda. This would certainly improve the democratic legitimacy of the international order. As maybe other ways to reform our domestic democracies to make the exercise of control powers possible would do. I am grateful to Nahuel Maisley and Victoria Inostroza for this point. 29

742    sources and the legitimate authority of international law States are equal in power. An example of this is when each State has one vote in the assembly of an IGO, regardless of their respective populations, potentially causing serious disproportionality. The decisions made by majority rule in this case compromise the principle of democratic equality. Giving the same vote to countries with hundreds of millions of citizens and to others with just a few thousand might pose a serious problem for democratic proportionality. Finally, State consent at present is usually combined with majority rule, resulting in permanent minorities; that is, countries that are never on the winning team.31 The North–​South divide is the best-​known example of this. The principle of democratic equality is thus further compromised, undermining the legitimacy of the sources of international law. Some measures may reduce the damage caused to democratic equality, including removing majority rule mechanisms, restoring unanimity rule, reinforcing veto powers for all States, and reinforcing exit rights for these States from IGOs and specific regimes of international law. That, however, would be too high a price to pay for improving the legitimacy of the international system. Restoring the old ways of a Westphalian statist world would only produce paralysis or regression in the international system, and it would fail to address the shortcomings in terms of State consent and ultimate effective popular control outlined above. International law would presumably return to being less significant to the people, and therefore its legitimacy or illegitimacy would be less pressing. Another major trend in the literature, that tries to escape from the difficulties identified above, consists of widening the scope of legitimate agents of international law-​making by including non-​State actors while improving the internal functioning of existing institutions and agencies to make them more transparent and deliberatively accountable to these new actors.32 While State governments may be imperfect mechanisms of ultimate effective popular control over international law-​making, NGOs and other civil society actors could hold international institutions accountable and give a voice to those who are not well represented internationally. A vibrant public sphere, with active civic citizens and civil organizations participating in formal and informal public deliberation, certainly contributes to democratic legitimacy. These civil associations can force decision-​makers to be more transparent,

  See Pettit, ‘Legitimate International Institutions’; Christiano, ‘Democratic Legitimacy and Inter­ national Institutions’. 32   For a rather descriptive account of how such non-​State actors are increasingly involved in law-​ making processes, see Anne-​Marie Slaughter, A New World Order (Princeton: Princeton University Press, 2004). Defending the idea that such actors should play an even larger role in these law-​making processes, see e.g., Buchanan and Keohane, ‘The Legitimacy of Global Governance Institutions’; Bohman, Democracy across Borders; James Bohman, ‘Democratising the Global Order:  From Communicative Freedom to Communicative Power’, Review of International Studies 36 (2010): 431–​47; Jürgen Habermas, Inclusion of the Other, ch. 7; John Dryzek, Deliberative Global Politics: Discourse and Democracy in a Divided World (Cambridge: Polity Press, 2006). 31

josé luis martí   743 consider the interests and preferences of the people, and assume responsibility when they fail to do so. The proponents of this view do not need to renounce the role of States and State consent in international law-​making processes, but they emphasize the contribution that such non-​State actors can make to strengthen deliberative contestability and furthermore strengthen the ultimate control over international institutions by the people whose governments are too inefficacious to do so, alleviating some of the difficulties of State consent. However, important as it is to promote such deliberative contestability, the main element of democratic legitimacy remains the principle of ultimate popular control, which should be guaranteed by any legitimate system of sources of law. It is not clear whether including non-​State actors such as NGOs is an adequate complement to make popular control possible and effective. Put in these terms, I am sure non-​State actors can play a significant role in a legitimate international system, exactly as they have in domestic democracies, but this may not be sufficient. First, such NGOs cannot claim to be representative of all the peoples of the world as they have not been elected by them, nor are they entirely accountable to them, regardless of any internal transparency they might be willing to adopt. How can NGOs act as mechanisms of popular control if they lack any form of electoral accountability? At the same time, it is not clear how they would preserve democratic equality in the international law-​making processes. So long as powerful States continue to be involved in such processes, the ability of non-​State actors to not only make the voice of unrepresented people heard but also count will be always limited. The presence and participation of non-​State actors in international law-​making is something that must be explored in greater detail as there is room for innovation to improve democratic legitimacy. The role of States as guarantors of the principle of ultimate popular control and the role of non-​State actors as enhancers of deliberative contestability are two strategies that can help to render the sources of international law democratically legitimate by respecting the principles of ultimate popular control, democratic equality, and deliberative contestability. Both strategies are necessary but probably insufficient, in my view, and inferior to a global parliament. Most proponents of these strategies make their claims on the assumption that the creation of a global parliament would be impossible or very unlikely for a very long time. However, the creation of a global democracy with an international representative body might be the only way to secure ultimate control by the peoples of the world in the conditions of democratic equality and deliberative contestability required for democratic legitimacy. Idealist it may be, but perhaps we should put all our effort into trying to bring the sources of international law as close as possible to such an ideal without excluding, of course, efforts made in securing State consent and the civic participation of non-​State actors. These same proponents might reply that this is precisely what they are trying to do. They explore ways to approximate the ideal of democratic legitimacy

744    sources and the legitimate authority of international law while being realistic about the limitations of the international order. Even if more advanced forms of global democracy are not accessible at this moment, we must remember that the contextuality of the idea of legitimacy, shaped only in relation to specific circumstances in which a standard is meant to be applied, does not work using binary logic. The fact that we have achieved certain conditions does not mean we are to stop approaching the ideal:  these two strategies may provide the best approximation available today to achieve international democratic legitimacy, but we must continue to make global democracy possible in the future, or at least find another way to satisfy the three basic principles of democratic legitimacy. The current sources of international law do not accomplish this entirely.

Research Questions • Under what precise conditions can the actors and modes of international law creation be considered legitimate and, more specifically, democratically legitimate? • How can we improve the existing mechanisms of ultimate popular control, political equality, and deliberative contestability in the current system of international law?

Selected Bibliography Besson, Samantha, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2010), 163–​85. Buchanan, Allen, and Robert Keohane, ‘The Legitimacy of Global Governance Institutions’, Ethics and International Affairs 20 (2006): 405–​34. Christiano, Thomas, ‘Democratic Legitimacy and International Institutions’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2009), 119–​38. Christiano, Thomas, ‘Is Democratic Legitimacy Possible for International Institutions?’, in Daniele Archibugi, Mathias Koenig-​Archibugi, and Raffaele Marchetti, eds, Global Democracy: Normative and Empirical Perspectives (Cambridge: Cambridge University Press, 2011), 69–​95. Pettit, Philip, ‘Legitimate International Institutions:  A  Neo-​ Republican Perspective’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2009), 139–​61.

josé luis martí   745 Pettit, Philip, On the People’s Terms (Cambridge: Cambridge University Press, 2012). Pettit, Philip, ‘The Republican Law of Peoples:  A  Restatement’, in Barbara Buckinx, Jonathan Trejo-​Mathys, and Timothy Waligore, eds, Domination and Global Political Justice:  Conceptual, Historical, and Institutional Perspectives (London:  Routledge, 2015), 37–​70. Raz, Joseph, ‘The Problem of Authority: Revisiting the Service Conception’, Minnesota Law Review 90 (2006): 1003–​44. Tasioulas, John, ‘The Legitimacy of International Law’, in Samantha Besson and John Tasioulas, eds, The Philosophy of International Law (Oxford:  Oxford University Press, 2009), 87–​115.

Section  XV I I I

SOURCES AND THE SUBJECTS OF INTERNATIONAL LAW

Chapter 35

SOURCES AND THE SUBJECTS OF INTERNATIONAL LAW A PLURALITY OF LAW-​M AKING PARTICIPANTS

Robert Mccorquodale

I. Introduction ONCE UPON A TIME . . . there was an idea called international law. It was a flexible, open, and inclusive idea. It was applied to actions between governments, as well as to actions by and between indigenous peoples, organizations, individuals, and communities. It was an idea that acknowledged the possibility of many types of entities making international law. This idea was fragile. Its potential power was recognized and seized upon by a few influential people to strengthen the emerging notion of the ‘nation-​State’. The owners, or subjects, of this international law were limited to the actions of only States. International law’s flexibility, openness, and inclusivity were replaced by

750    sources and the subjects of international law strict, closed, and exclusive rules only applicable for and by States. Its vibrancy was restricted and tamed. For many centuries, this limited view of international law was accepted as the true legal doctrine. Adherents to this doctrine asserted confidently that only States could be the subjects of international law. They pronounced that any non-​State entity was purely an ‘object’ of international law and only States made international law. Alternative ideas to this inflexible doctrine were ridiculed and dismissed as if they were heresy. It was the Dark Ages of international legal ideas. The dawning of the United Nations (UN) brought the hope of light to this darkness. Its Charter’s Preamble began with ‘We the Peoples of the United Nations’.1 Yet the possibility of change was a mirage, as it was to be an organization of States and for States, and it only extended the idea of subjects of international law to include collectives of States. In this international legal story, States live happily ever after as the only subjects of international law.

II.  Stories and Ideas This international legal story is fictional. Yet it reflects the legal doctrine that has dominated the understanding of the international legal system for centuries, and whose theorists have tried to ensure that the above story has become the reality in international law.2 The story gives complete prominence to the actions of States and ignores the actions of others. It shows a ‘law of inter-​prince relations, with its roots in religious law, natural law, Roman Law and morality [which] was later subsumed and assimilated into the modern law of nations, but did not shed its origins and its princely paraphernalia’.3 It is a story analogous to historical works that focus entirely   Charter of the United Nations (San Francisco, 26 June 1945, 1 UNTS 16).   See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–​1960 (Cambridge:  Cambridge University Press, 2001) and Philip Allott, Health of Nations (Cambridge: Cambridge University Press, 2002), especially ch. 2 (concerning the role of Emer de Vattel). There were some scholars who challenged the dominant theory and placed the individual as the main ‘subject’ and source of international law: see e.g., Georges Scelle, Précis de droit des gens (Paris: Recueil Sirey, 1932) and Hersch Lauterpacht, International Law and Human Rights (London: Stevens, 1950). See also Jan Klabbers, An Introduction to International Institutional Law (Cambridge:  Cambridge University Press, 2002), p. 43, who notes the pressure on scholars to conform to the dominant view of ‘subjects’. 3   Louis Henkin, International Law:  Politics and Values (Dordrecht:  Martinus Nijhoff, 1991), p.  9. See Carl Schmitt, Staat, Grossraum, Nomos, Arbeiten aus den Jahren (Berlin:  Duncker & Humblot, 1995), p. 585, stating that the last great heroic deed of the European peoples was the creation of a world legal order. 1

2

robert mccorquodale   751 on kings and queens, with all other characters reduced to mere shadows or puppets. Perhaps this is not surprising, as Michel Foucault acknowledged: Political theory has never ceased to be obsessed with the person of the sovereign. Such theories still continue today to busy themselves with the sovereign. What we need, however, is a political philosophy that isn’t erected around the problem of sovereignty nor therefore around the problems of law and prohibition. We need to cut off the King’s head: in political theory that has still to be done.4

His comment applies equally to international legal theory. We need to cut off its bounded link to statehood. In this chapter, I aim to show how adopting an approach in which States are the sole ‘subject’ of international law and the sole source in law creation in international law offers a very partial and biased story. It ignores the reality of changes in the international community through, for example, globalization, privatization, and fragmentation. I intend to show that there is a range of participants who are sources of law-​making in international law. In so doing, I indicate that the terminology of ‘subjects’ is deeply problematic in international law and I offer a way forward that is not reliant on this terminology or approach.5

III.  The ‘Subject’ of Sources When seeking the sources of the ‘subjects’ of international law, it is about finding the processes by which law is created and is accepted as law. As Christine Chinkin explains: A source of law identifies what constitutes law and how decision-​makers can determine what instruments, practices, or policies constitute legally binding obligations as opposed to moral, political, or other social commitments. Sources of law provide us with the basis of legal obligation. In practical terms, the sources of law tell us how new rules are made and existing rules are repealed or abrogated.6 4   Michel Foucault, Power/​Knowledge: Selected Interviews and Other Writings, 1972–​1977, ed. Colin Gordon (Brighton: Harvester, 1980), p. 121. 5   While the use of the term ‘subjects’ in domestic law may still exist, it is not used in the sense of the lawmakers or sovereigns as in international law. In international law, who is a ‘subject’ is not settled and, as Pierre d’Argent notes in ­chapter 25 of this volume, it is politically charged because being a ‘subject’ in international law means being entitled to social relations regulated under law. This is the reason why the word ‘subject’ is generally in inverted commas in this chapter. 6   Christine Chinkin, ‘Sources’, in Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran, eds, International Human Rights Law (Oxford: Oxford University Press, 2014), 75–​95, 75, quoting Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994), p. 17.

752    sources and the subjects of international law For our purposes in this chapter, this means seeking to understand which ‘subjects’ of international law are the sources of international law-​making.7 There is often a distinction made between the material and formal sources of law, with the former being the content of the law and the latter conferring a normative character on them. This distinction is criticized as being artificial in creating a sharp division between procedural and substantive aspects of law-​making that does not exist,8 and so it is not used here. As seen above, the dominant legal doctrine, at least until the late twentieth century, stated that ‘[s]‌ince the Law of Nations is a law between States only and exclusively, States only and exclusively are subjects of the Law of Nations’.9 What this statement indicates is that the creation of international law (formerly called the ‘Law of Nations’) is dependent on who are the ‘subjects’ of the law, as the ‘subjects’ of the law create international law. This approach was confirmed by the International Court of Justice (ICJ) in its Reparations for Injuries advisory opinion concerning the international legal personality of the United Nations itself: The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends on the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States [such as the UN]. . . . That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. . . . It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.10

This is an important statement of international legal principle. It directly links being a ‘subject’ of international law with being a lawmaker. It shows that it is possible to expand the group of ‘subjects’ of international law.11 7   Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Beeson and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010), 163–​85, 171, suggests that ‘international law-​making processes should be distinguished from their outcome: the great variety of international legal norms’. I have, therefore, tried to use ‘law-​making’ in this chapter instead of ‘norm-​creating’. 8   See e.g, ­chapter  25 by Pierre d’Argent in this volume, also Alan Boyle and Christine Chinkin, The Making of International Law (Oxford: Oxford University Press, 2007), p. 39; and Malcolm Shaw, International Law, 7th edn (Oxford: Oxford University Press, 2014), p. 51. 9   Lassa Oppenheim, International Law, vol. 1 (London: Longmans, 1905), p. 341. 10   Reparation for Injuries suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 178–​9. 11   There may also be a direct link between being a ‘subject’ of international law with having international legal personality, though that is not of direct relevance for our purposes; see Andrew Clapham, Human Rights Obligations of Non-​State Actors (Oxford: Oxford University Press, 2006), p. 83, who argues that we should ‘concentrate on the rights and obligations of entities rather than their legal

robert mccorquodale   753 If there is a ‘subject’ of international law then the approach means that there must be an ‘object’ of that system about which the law concerns. The ‘objects’ will include territory and rivers, as well as commerce and diplomatic relations. They could also include individuals and other non-​State actors.12 Yet this binary opposition between ‘subject’ and ‘object’ has been rightly criticized. Rosalyn Higgins exposed its fiction when she noted that ‘the whole notion of “subjects” and “objects” has no credible reality, and, in my view, no functional purpose. We have erected an intellectual prison of our own choosing and then declared it to be an unalterable constraint.’13 Some go further, with Antônio Cançado Trindade, then President of the Inter-​ American Court of Human Rights, noting: The doctrinal trend which still insists in denying to individuals the condition of subjects of international law is  .  .  .  unsustainable [and] that conception appears contaminated by an ominous ideological dogmatism, which had as the main consequence to alienate the individual from the international legal order. It is surprising—​if not astonishing—​besides regrettable, to see that conception repeated mechanically and ad nauseam by a part of the doctrine, apparently trying to make believe that the intermediary of the State, between the individuals and the international legal order, would be something inevitable and permanent. Nothing could be more fallacious.14

The ‘subject’/​’object’ dichotomy privileges and reifies the voices of States because all entities are compared to States, and States alone decide the outcome. It is an exclusionary fiction, which silences alternative voices.15 Indeed, Antony Anghie notes that this approach to sources was deployed to deny Third World formulations of law and to force new States to comply with the rules of international law over which they had not been involved.16 personality’. On international legal personality, see Janne Nijman, The Concept of International Legal Personality:  An inquiry into the History and Theory of International Law (The Hague:  Asser, 2004) and International Law Association (ILA), First Report of the Committee on Non-​State Actors, ‘Non-​State Actors in International Law:  Aims, Approach and Scope of Project and Legal Issues’ (The Hague: ILA, 2010). 12   See Antonio Cassese, International Law, 2nd edn (Oxford:  Oxford University Press, 2005), p. 143. 13  Higgins, Problems and Process, p. 49. 14   Juridical Condition and Human Rights of the Child (Advisory Opinion OC–​17/​2002) IACtHR Series A No. 17 (28 August 2002), Concurring Opinion of Judge Cançado Trindade, paras 26–​7. 15  See, e.g., Martti Koskenniemi, From Apology to Utopia:  The Structure of International Legal Argument (Helsinki: Finnish Lawyers’ Pub. Co., 1989), and Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000). José E. Alvarez, International Organizations as Law-​Makers (Oxford: Oxford University Press, 2005), p. 968, argues that we need to look beyond the ‘billiard ball’ image of encounters between monolithic entities in the international community. 16  Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005), especially pp. 213–​16, 313. See also Sundhya Pahuja, Decolonizing International Law (Cambridge: Cambridge University Press, 2011).

754    sources and the subjects of international law Accordingly, a range of different approaches to determining those who are potential law creators of international law has been devised. These include examining the ‘participation’ in the international legal system of those actually involved in it,17 looking at the ‘functions’ of different actors,18 their ‘capacity’,19 and at the management of law.20 The term ‘participant’ is not solely linked to the New Haven School; it has been used by other jurists,21 with Christoph Schreuer noting that ‘we should adjust our intellectual framework to a multi-​layered reality consisting of a variety of authoritative structures . . . [in which] what matters is not the formal status of a participant . . . but its actual or preferable exercise of functions’.22 The actual roles of entities will be considered here because the appropriate entities to examine when determining international law-​making should be based on examining the reality of international engagement. Indeed, as Hersch Lauterpacht noted: In each particular case the question whether a person or a body is a subject [using the term then used] of international law must be answered in a pragmatic manner by reference to actual experience and to the reason of the law as distinguished from a pre-​conceived notion as to who can be subjects of international law.23

Due to these concerns, the terminology used in this chapter is that of ‘participants’ rather than ‘subjects’, as it is less historically constrained and is a more inclusive term.24

IV.  States as Sources The starting point in relation to who is a law creator in international law is the State. If States are the only or primary lawmakers, then it is necessary to determine

  See Higgins, Problems and Process.  See Christoph Schreuer ‘The Waning of the Sovereign State:  Towards a New Paradigm for International Law’, European Journal of International Law 4 (1993): 447–​7 1 and ILA, First Report of the Committee on Non-​State Actors, p. 636 (which also used the term ‘actors’). 19   See Clapham, Human Rights Obligations of Non-​State Actors. 20   See Math Noortmann and Cedric Ryngaert, eds, Non-​State Actor Dynamics in International Law: From Law-​Takers to Law-​Makers (Aldershot: Ashgate, 2010). 21   See e.g., Karen Knop, Diversity and Self-​Determination in International Law (Cambridge: Cambridge University, 2002); Boyle and Chinkin, The Making of International Law. 22   Christoph Schreuer, ‘The Waning of the Sovereign State’, pp. 447–​7 1, 453. 23  Hersch Lauterpacht, ‘The Subjects of the Law of Nations’, Law Quarterly Review 63 (1947): 438–​60, 444. 24  For a longer discussion of the term ‘participant’, see Robert McCorquodale, ‘An Inclusive International Legal System’, Leiden Journal of International Law 17 (2004): 477–​504. 17

18

robert mccorquodale   755 what is a State to make clear how it can be a source of international law. Yet there is no one clear definition of a ‘State’. James Crawford notes that: [T]‌he criteria for statehood are of a rather special character, in that their application conditions the application of most other international law rules. As a result, existing States have tended to retain for themselves as much freedom of action with regard to new States as possible. This may explain the reluctance of the International Law Commission to frame comprehensive definitions of statehood when engaged on other work—​albeit work which assumed that the category ‘States’ is ascertainable. It follows that, at the empirical level, the question must again be asked whether, given the existence of international law rules determining what are ‘States’, those rules are sufficiently certain to be applied in specific cases, or have been kept so uncertain or open to manipulation as not to provide any standards at all.25

If there are any ‘rules’ or criteria for what is a ‘State’, then the Montevideo Convention on the Rights and Duties of States articulates what is generally considered to be the customary international law criteria (or what might be called ‘characteristics’) for determining statehood in international law.26 Article 1 of that Convention provides that ‘[t]‌he State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States’.27 While a close analysis of these characteristics is beyond the scope of this chapter, there are a few observations that are relevant: • A  factual determination is required for some of these characteristics, such as whether there is a population and a defined territory.28 • A decision is needed as to the effective control of a government,29 and if it has the ‘competence, within its own constitutional system, to conduct international 25   James Crawford, The Creation of States in International Law, 2nd edn (Oxford: Oxford University Press, 2006), p. 45. 26   See e.g., the Badinter Arbitration Commission, Opinion 1, (1991) 92 ILR 165, and Matthew Craven, ‘The European Community Arbitration Commission on Yugoslavia’, British Yearbook of International Law 66 (1995): 333–​413, 359 (stating that the conditions adopted by the Commission ‘closely reflect the classical criteria for statehood’ and that reference is clearly made to the Montevideo Convention). See also the United States (US) Department of State Statement on 1 November 1976, indicating that when judging whether or not to recognize an entity as a State, the US has traditionally looked to the following facts: ‘effective control over a clearly-​defined territory and population; and organized governmental administration of that territory; and a capacity to act effectively to conduct foreign relations and to fulfil international obligations’: Eleanor McDowell, ‘Contemporary Practice of the United States Relating to International Law’, American Journal of International Law 71 (1977): 337–​50. 27   Montevideo Convention on the Rights and Duties of States (Montevideo, 26 December 1933, 165 LNTS 19). See Thomas Grant, ‘Defining Statehood: The Montevideo Convention and Its Discontents’, Columbia Journal of Transnational Law 37 (1999): 403–​57, 417. 28   Maurice Mendelson, ‘Diminutive States in the United Nations’, International and Comparative Law Quarterly 21 (1972): 609–​30. 29   ‘Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question’, League of Nations Official Journal (1920) Special Supplement No. 3: 3–​19, 8–​9.

756    sources and the subjects of international law relations with other States, as well as the political, technical, and financial capabilities to do so’.30 The issue of ‘independence’ may be a separate or included characteristic.31 • There have been many occasions when these characteristics have been ignored or given limited weight due to other considerations, such as political and economic factors.32 • These characteristics do not apply to existing States, even if they no longer meet these characteristics.33 • Other characteristics are considered relevant, including the non-​use of force in the creation of the State and the right of self-​determination.34 What can be seen from this summary is that, while the determination as to what is a State has some factual aspects, and some of the decisions are based on State practice, much of the decision-​making is subjective.35 In reaching this subjective determination, other issues such as legitimacy,36 international relations,37 legality,38 and other approaches,39 may also be important, so it is largely a political decision with normative legal effects. 30   Restatement (Third) of the Foreign Relations Law of the United States (1987), Section 202 (2), Comment (e). 31  Crawford, The Creation of States, pp. 62–​88, considers ‘independence’ as a separate characteristic. 32   For the situation in Kosovo, see Colin Warbrick, ‘Kosovo:  The Declaration of Independence’, International and Comparative Law Quarterly 57 (2008):  675–​90, commenting on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403. 33   See e.g., the situation in Somalia, where there was no government for over a decade: David Harris, Cases and Materials on International Law, 7th edn (London: Sweet & Maxwell, 2010), pp. 93–​4. 34   Malcolm Shaw, International Law (Cambridge: Cambridge University Press, 2014), p. 149. 35   See e.g., Jan Klabbers, ‘Presumptive Personality:  The European Union in International Law’, in Martti Koskenniemi, ed., International Law Aspects of the European Union (The Hague: Kluwer, 1998), 231–​54. 36   See John Tasioulas, ‘The Legitimacy of International Law’, in Besson and Tasioulas, eds, The Philosophy of International Law, 97–​118, 97–​8, who notes that ‘[if public international law] is law, then it necessarily claims legitimate authority over its subjects. Legitimate authority—​in the normative, rather than sociological, sense—​is the “right to rule”, the exercise of which “binds” its subjects by imposing duties of obedience.’ See also Allen Buchanan, Justice, Legitimacy and Self-​Determination (Oxford: Oxford University Press, 2004) and Hanspeter Neuhold, ‘Legitimacy: A Problem in International Law and for International Lawyers?’, in Rüdiger Wolfrüm and Volker Röben, eds, Legitimacy in International Law (Berlin: Springer, 2008), 335–​51. 37   In this regard, the constructivist approach of international relations offers a useful avenue, as it includes an acknowledgement of social structures and activity; see Alexander Wendt, Social Theory of International Politics (Cambridge:  Cambridge University Press, 1999) and Christian Reus-​Smit, ed., The Politics of International Law (Cambridge: Cambridge University Press, 2004). 38  See e.g., Jutta Brunnée and Stephen Toope, Legitimacy and Legality in International Law (Cambridge: Cambridge University Press, 2010), who suggest an ‘interactional’ approach. 39   See e.g., the democratic approach of Russel Buchan, International Law and the Construction of the Liberal Peace (Oxford: Hart, 2014). For a general critique of these approaches, see Besson, ‘Theorizing the Sources’, p. 165.

robert mccorquodale   757 Recognition by States is required before an entity can be accepted as a State.40 Recognition is arguably separate to the characteristics of a State, because: If the effect of positivist doctrine in international law was to place the emphasis, in matters of statehood, on the question of recognition, then the effect of modern doctrine and practice has been to return the attention to issues of statehood and status, independent of recognition.41

This last point may be debatable, at least where recognition could be constitutive, such as in relation to some of the States that emerged from the former Yugoslavia.42 Yet, what is clear is that existing States seek to ensure that any new States resemble themselves as far as possible. Thus, it is a process ‘reminiscent of a men’s club . . . [where] new claimants [have] access to the exclusive privileges of statehood provided they do not overstep the accepted limits [such as use of force or being overtly racist]’.43 This observation reinforces James Crawford’s point above about the possibility of ‘manipulation’ of who is a ‘State’. Nevertheless, once a State is recognized as a ‘State’ by other States then it can enter treaties and its State practice is relevant for customary international law.44 It becomes an international lawmaker: a source. Organizations of States can also be lawmakers distinct from States. As indicated by the International Court of Justice (ICJ) in the Reparations for Injuries advisory opinion,45 international organizations are participants in the international legal system and can be sources of international law. This is eloquently discussed in c­ hapter 46 by August Reinisch and so is not explored further here.46

  On the position of unrecognized entities, such as Taiwan, see: Hungdah Chiu, ‘The International Legal Status of Taiwan’, in Jean-​Marie Henckaerts, ed., The International Status of Taiwan in the New World Order: Legal and Political Considerations (The Hague: Kluwer, 1996); Nii Lante Wallace-​Bruce, ‘Taiwan and Somalia: International Legal Curiosities’, Queen’s Law Journal 22 (1997): 453–​86; Brad Roth, ‘The Entity That Dare not Speak Its Name: Unrecognized Taiwan as a Right-​Bearer in the International Legal Order’, East Asia Law Review 4 (2009): 91–​124; and An Hsiao, ‘The International Legal Status of Unrecognized Claimants to Statehood: A Comparative Analysis of Taiwan and the Turkish Republic of Northern Cyprus’, Issues & Studies 47 (2011): 1–​55. 41  Crawford, The Creation of States, p. 37. 42   See Stefan Talmon, ‘The Constitutive Versus the Declaratory Theory of Recognition: Tertium Non Datur’, British Yearbook of International Law 75 (2004): 101–​81. 43   Charlesworth and Chinkin, The Boundaries of International Law, p. 142. 44   Issues of whether a new State is bound by customary international law are outside the scope of this chapter. 45   See also Legality of the Threat or Use of Nuclear Weapons Opinion (Advisory Opinion) [1996] ICJ Rep 226. 46   For a detailed discussion of the variety of international organizations, see Alvarez, International Organizations as Law-​Makers. 40

758    sources and the subjects of international law

V.  Non-​State Actors as Participants When considering other participants in the international legal system, such as corporations, armed groups, and non-​governmental organizations (NGOs), the term used is ‘non-​State actor’. This definition is problematic in that it defines these actors by what they are not, that is non-​State actors. As Philip Alston notes, this is a definition that has been ‘intentionally adopted in order to reinforce the assumption that the State is not only the central actor, but also the indispensible and pivotal one around which all other entities revolve’.47 Such a definition also reinforces the dominant legal doctrine view of the State as the only participant in law creation. While other terms have been proposed,48 the term ‘non-​State actor’ (despite its difficult negative expression) will be used here as it is the term generally adopted in international law. Non-​State actors are a major presence in the daily lives of most people. Indeed, for many people around the world their local community leaders, social and religious hierarchy, and their corporate employers, as well as those who might bring protection and/​or violence, will have the primary impact on them, with the State being a distant presence.49 While a detailed examination of the participation of non-​ State actors is beyond the length of this chapter,50 an indication of some of the main non-​State actors and their activities can be summarized: • Corporations:  these entities enter agreements with States that are subject to international law and international dispute settlement. There is now a range of mechanisms under international economic law (covering global investment, trade, and financial issues) by which corporations can bring claims against States.51 These mechanisms include institutional bodies (both treaty-​based and non-​treaty based) with established procedures, legally binding decision-​making

47   Philip Alston, ‘The “Not-​a-​Cat” Syndrome: Can the International Human Rights Regime accommodate Non-​State Actors’, in Philip Alston, ed., Non-​State Actors and Human Rights (Oxford: Oxford University Press, 2005), 3–​36, 3. 48   See e.g., Daphné Josselin and William Wallace, eds, Non-​State Actors in World Politics (Basingstoke: Palgrave MacMillan, 2001). 49   See e.g., Deepa Narayan, R. Patel, K. Sghafft, A. Rademacher, and S. Koch-​Shulte, eds, Voices of the Poor. Crying Out For Change (Washington: World Bank, 2000). 50  For further discussion see e.g., Andrea Bianchi, Non-​ State Actors and International Law (Aldershot:  Ashgate, 2009), Jean d’Aspremont, ed., Participants in the International Legal System:  Multiple Perspectives on Non-​State Actors in International Law (London:  Routledge, 2011); Math Noortmann, August Reinisch, and Cedric Ryngaert, eds, Non-​State Actors in International Law (Oxford: Hart, 2015). 51  See Campbell McLachlan, Laurence Shore, and Matthew Weiniger, International Investment Arbitration (Oxford: Oxford University Press, 2008) and Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law, 2nd edn (Oxford: Oxford University Press, 2012).

robert mccorquodale   759 bodies, and enforcement procedures.52 Corporations also participate in treaty-​ drafting and in interstate dispute settlement.53 • Non-​State armed groups:  these entities enter agreements with States and with each other, often with the active engagement of other States and international organizations.54 They can control significant territory and populations. They are subject to international obligations under international humanitarian law and international criminal law.55 • NGOs: these entities have entered agreements with States to administer treaties and put international obligations into operation, and been directly part of international organizations, such as the International Labour Organization. They have assisted in the drafting of treaties,56 and in the ideas for institutions,57 as well as being crucial to the monitoring of treaties.

52   Muthucumaraswamy Sornarajah, ‘Power and Justice in Foreign Investment Arbitration’, Journal of International Arbitration 14 (1997): 103–​40. In the European Union (EU), corporations can bring claims for a breach of EU law direct to the Court of Justice: Margot Horspool and Matthew Humphreys, European Union Law, 8th edn (Oxford: Oxford University Press, 2014). 53   The drafting of key international economic treaties is often done at either the instigation of, or with the direct involvement of, corporations, as seen in the Agreement on Trade-​Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPS Agreement) (Marrakech, 15 April 1994, 1869 UNTS 299), and many of the claims brought by States to international economic legal bodies, such as under the dispute settlement procedures of the World Trade Organization (WTO), are initiated, sponsored, and prosecuted in effect by the corporations that are affected by the trade action that is the subject of the claim. See Steven Croley and John Jackson, ‘WTO Dispute Procedures, Standard of Review and Deference to National Governments’, American Journal of International Law 90 (1996): 193–​213; Steve Charnovitz, ‘Economic and Social Actors in the World Trade Organization’, ILSA Journal of International and Comparative Law 7 (2001): 259–​74. 54  For examples of such agreements, see Sandesh Sivakumaran, The Law of Non-​International Armed Conflict (Oxford:  Oxford University Press, 2012), pp. 124–​32. One instance of a non-​State actor becoming part of a treaty is the unilateral declaration made on 21 June 2015 by the Polisario Front on behalf of the people of Western Sahara to apply the 1949 Geneva Conventions and the Additional Protocol I  to the armed conflict between it and Morocco:  Katharine Fortin, ‘Universal Declaration by Polisario under API Accepted by Swiss Federal Council’ (2015), , accessed 13 July 2016. 55   See e.g, William Schabas, International Criminal Law (Cheltenham: Edward Elgar, 2012); Robert Cryer, Hakan Friman, Darryl Robinson, and Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure, 3rd edn (Cambridge: Cambridge University Press, 2014); Dieter Fleck, The Handbook of International Humanitarian Law, 3rd edn (Oxford: Oxford University Press, 2014); and Emily Crawford and Alison Pert, International Humanitarian Law (Cambridge: Cambridge University Press, 2015). 56   See e.g., where the NGOs’ role is acknowledged in the travaux préparatoires of the Convention on the Rights of the Child: Sharon Detrick, ed., The United Nations Convention on the Rights of the Child: A Guide to the ‘Travaux Préparatoires’ (Dordrecht: Martinus Nijhoff, 1992). 57   See Theo Van Boven, ‘The Role of Non-​Governmental Organizations in International Human Rights Standard-​Setting: A Prerequisite for Democracy’, California Western International Law Journal 20 (1990): 207–​25; Pierre-​Marie Dupuy and Luisa Vierucci, eds, NGOs in International Law: Efficiency in Flexibility? (Cheltenham: Edward Elgar, 2008).

760    sources and the subjects of international law While it is clear these are all participants in the international legal system, that does not automatically make them sources of international law as lawmakers. Indeed, many would argue that their participation is entirely dependent on State consent and that all treaties and customary international law are, ultimately, done by States alone. This argument against non-​State actors as being ‘sources’ due to the need for State consent, can be criticized as being a blinkered view as to both treaty creation and how customary international law is developed. For example, to look solely at the end process of negotiation of a treaty without any examination of the process by which that law is made, ignores the discursive context, power structures, and interests involved in international law-​making.58 In addition, Article 38 (b) of the Statute of the ICJ,59 which is often referred to in order to locate the ‘sources’ of international law, concerns ‘international custom, as evidence of a general practice accepted as law’ and Article 38 (c) refers to ‘the general principles of law recognized by civilized nations’. Neither of these articles expressly refers to ‘States’ or ‘State’ actions, ‘State’ practice or ‘State’ views. Indeed, Article 38 (c), although having strong colonialist ideology, acknowledges the difference between States and nations, as a nation is rarely the same as a State today, with most States containing many nations within them.60 Therefore, if reliance is placed on Article 38 as reflecting (some or even all of) the methods to determine the foundations of the international legal system, it is consistent with the concept of international law-​making that it can be extended to include actions, practices, and views of non-​State actors in the determination of sources. In an international legal system where non-​State actors act as participants, their practice could be law-​making. This is especially likely in areas such as human rights and the environment, where a simple reliance on State practice can distort the reality of participation and offers a narrow, exclusive, and silencing explanation of the relevant law.61 Before non-​State actors can be included as a source of international law, it is necessary to clarify the framing concept as to what of their participatory actions are law-​making. To do this, the approach of global legal pluralism will be used.

VI.  Pluralism of Sources Pluralism indicates that there may be several normative systems operating at the same time in relation to a specific situation, so that there are a number of actors   See Jürgen Habermas, Between Facts and Laws (Cambridge: Polity Press, 1996).   Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993). 60   See e.g., Gidon Gottlieb, Nation against State (New York: Council of Foreign Relations, 1993). 61   See Boyle and Chinkin, The Making of International Law, ch. 2. 58

59

robert mccorquodale   761 pursuing a diversity of normative actions, where there may be contestation and accommodation.62 In general terms, a pluralist approach favours procedural mechanisms, institutions, and practices that provide opportunities for plural voices to make themselves heard. Global legal pluralism is the recognition that there is a number of different normative systems that operate and interact at the international level.63 It describes ‘the State and the interstate system as complex social fields in which State and non-​State, local and global social relations interact, merge and conflict in dynamic and even volatile combinations’.64 A global legal pluralism approach can potentially help to channel normative conflict by bringing together multiple actors into a shared social space,65 and could assist towards legitimacy of international law.66 A distinct quality of global legal pluralism is that it keeps relationships between legal orders undetermined and thus keeps them open to redefinition over time.67 Indeed, some argue that adopting a pluralist approach to law-​making—​where the laws are forms of regulation—​is a more legitimate and equal (and possibly more democratic) way of constructing an international legal framework than currently exists.68 Therefore, global legal pluralism offers an approach that is consistent with an approach to the sources of international law where that law is made by more participants than States alone. This approach still ensures that the State is a ‘subject’ or lawmaker of the system.69 Once the possibility of lawmakers in addition to States is acknowledged, then the activity of non-​State actors can be shown as being law creating. A few examples will indicate this:

  Boaventura de Sousa Santos, ‘Law: A Map of Misreading. Toward a Postmodern Conception of Law’, Journal of Law and Society 14 (1987): 279–​302. 63   For a fuller discussion, see Robert McCorquodale, ‘Pluralism, Global Law and Human Rights’, Global Constitutionalism 2 (2013): 287–​315. 64   Boaventura de Sousa Santos, Towards a New Legal Common Sense:  Law, Globalization, and Emancipation (London:  Butterworths, 2002), p.  94. See also Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law beyond Borders (Cambridge: Cambridge University Press, 2012). 65   Paul Schiff Berman, ‘Global Legal Pluralism’, Southern California Law Review 80 (2007): 1155–​237, 1166–​7. 66   Tasioulas, ‘The Legitimacy of International Law’, p. 111. 67   Jeffrey Dunoff, ‘International Law in Perplexing Times’, Maryland Journal of International Law 25 (2010): 11–​36, 29. 68   See Balakrishnan Rajagopal, International Law from Below (Cambridge: Cambridge University Press, 2003). For further discussion, see Neil Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Legal Order’, International Journal of Constitutional Law 6 (2008): 373–​96; Nico Krisch, ‘The Pluralism of Global Administrative Law’, European Journal of International Law 17 (2006): 247–​78; and Nico Krisch, Beyond Constitutionalism (Oxford: Oxford University Press, 2010). 69   Boaventura de Sousa Santos, Towards a New Legal Common Sense, p. 298: ‘[i]‌n a polycentric legal world the centrality of the State law, though increasingly shaken, is still a decisive political factor. See also Koskenniemi, From Apology to Utopia. 62

762    sources and the subjects of international law • The International Committee of the Red Cross (ICRC) has been crucial in the creation, development, and enforcement of international humanitarian law, i.e. in its law-​making.70 This is seen in the Geneva Conventions of 1949 and their Additional Protocols of 1977, which provide that States can entrust the fulfilment of their duties to the ICRC,71 they must cooperate with the ICRC during conflicts,72 and the ICRC must be consulted before any proposed amendment by a State to the Protocols can be acted upon.73 Their monitoring role, as with other NGOs,74 and their practices can be crucial in the clarification of obligations under a treaty and the development of customary international law,75 as is the role of the International Law Commission.76 • The development of corporate codes of conduct, including ones relating to labour, health and safety, environmental, and human rights standards, is increasing. In many instances, industry groups are establishing normative standards of conduct on their corporate members (and to potential members) that are compliance-​ pulling.77 It may even be possible for one industry sector to apply its codes of

70   See generally François Bugnion, The International Committee of the Red Cross and the Protection of War Victims (Oxford: Macmillan Education, 2003). 71   See Art. 10 of Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva, 12 August 1949, 75 UNTS 31); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva, 12 August 1949, 75 UNTS 85); Geneva Convention (III) Relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949, 75 UNTS 287); Geneva Convention (IV) Relative to the Treatment of Prisoners of War (Geneva, 12 August 1949, 75 UNTS 135). 72   Article 81 of the Geneva Conventions. 73  Article 97 of (I)  Protocol Additional to the Geneva Conventions of 12 August 1949, and Concerning the Protection of Victims of International Armed Conflict (Geneva, 8 June 1977, 1125 UNTS 3) and Art. 24 of (II) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (Geneva, 8 June 1977, 1125 UNTS 609). 74   See Michael Bowman, ‘International Treaties and the Global Protection of Birds’, Journal of Environmental Law 11 (1999): 87–​119 and 281–​300, 298: ‘the role of [NGOs] has proved to be of vital importance. Not only have they regularly pressed for the adoption of agreements  .  .  .  they have frequently shown a willingness to undertake much of the preliminary drafting work necessary to make such projects a reality. Insofar as these agreements, once concluded, have required to be sustained by technical resources and expertise, NGOs have been prominent in the provision of such support . . .. [In relation to one treaty,] one such [NGO] has also provided the administrative infrastructure for the establishment of a secretariat.’ 75   Theo Van Boven argues that non-​State actors have affected the enforcement of, and compliance with, international law, and have been ‘elaborating further interpretative rules in connection with already existing international instruments . . . [which have come to be] referred to as . . . authoritative sources.’ Theo Van Boven, ‘The Role of Non-​Governmental Organizations’, pp. 219–​20. 76   Boyle and Chinkin, The Making of International Law, ch. 2. 77   Apple joined the Fair Labor Association (FLA) after one of its Chinese suppliers was found to have human rights violations on its facilities, and Apple’s action was seen as an attempt to demonstrate its commitment to upholding human rights standards; the Ethical Trading Initiative

robert mccorquodale   763 conduct on other industry sectors,78 or facilitate binding national and international regulation by beginning a process of consensus-​building that can lead to legal regulation.79 Indeed, it has been argued that, at least in the area of transnational labour market regulation: State law is no longer plausible as a benchmark for responsible corporate behaviour. In practice, [transnational corporations], their advisors and apologists might have solved the problem of a plausible benchmark by supporting the reinvigoration of State law, helping to build effective transnational institutions or entering into a new social contract with workers and communities. However, what they have chosen to do instead is to promulgate their own benchmark, their own self-​imposed law: codes of conduct.80

Thus, the law-​creation of corporate codes of conduct is not only law-​creating within the international corporate community but has an effect on legal regulation beyond that community. • Armed groups can have effective control over territories and the agreements entered into by armed groups can carry with them international legal obligations for all parties.81 For example, the Agreement on the Protection of Civilians and (ETI) suspended Levi Strauss from its membership after the corporation refused to commit to a living wage standard required under the ETI Code of Conduct. See Apple Press Info, ‘Fair Labor Association Begins Inspections of Foxconn’, 13 February 2012:  , accessed 13 July 2016; and Maquila Solidarity Network, ‘Levi’s Drops from 1st to 5th Place in Ethical Ranking’, 29 January 2007 , accessed 13 July 2016. 78   See e.g., the finance industry’s application of the Equator Principles (on environmental and social impacts of development) to all borrowers, , accessed 13 July 2016. 79   Mark Taylor, ‘The Ruggie Framework: Polycentric Regulation and the Implications for Corporate Social Responsibility’, Nordic Journal of Applied Ethics 5 (2011): 9–​30. See also Report of the Secretary-​ General’s Special Representative on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, ‘Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts’, UN Doc. A/​HRC/​4/​035 (9 February 2007), para. 62: ‘the standard-​setting role of soft law remains as important as ever to crystallize emerging laws in the international community. The increased focus on accountability in some intergovernmental arrangements, coupled with the innovations in soft law mechanisms that involve corporations directly in regulatory rulemaking and implementation, suggests increased State and corporate acknowledgment of evolving social expectations and recognition of the need to exercise shared responsibility.’ 80   Harry Arthurs, ‘Private Ordering and Workers’ Rights in the Global Economy: Corporate Codes of Conduct as a Regime of Labour Market Regulation’, in Wesley Cragg, ed., Ethics Codes, Corporations, and the Challenge of Globalization (Cheltenham: Edward Elgar, 2005), 194–​211, 196. He also points out that State regulation is a more democratic paradigm of governance, whereas self-​regulation allows companies to prioritize themselves in relation to other stakeholders. 81   See Jann Kleffner, ‘The Applicability of International Humanitarian Law to Organized Armed Groups’, International Review Red Cross 93 (2011): 443–​61.

764    sources and the subjects of international law Civilian Facilities from Military Attack between Sudan and the Sudan People’s Liberation Movement 2002 ‘reconfirm[s]‌[the parties’] obligations under international law, including common Article 3 of the 1949 Geneva Conventions, to take constant care to protect the civilian population, civilians and civilian objects against the dangers arising from military operations’.82 The form of governance of armed groups can be so ‘State-​like’ that it carries international obligations on third States, such as in relation to non-​refoulement,83 and disputes can be settled at international courts and tribunals.84 Their activities, including their role in clarification of international humanitarian law, have been persuasively argued to be law-​making in many instances.85 • The activities of non-​State actors in their actions against States and against each other can change international law. This can be seen in the development of international law so that terrorist activities are a breach of international law without a need to link these non-​State activities to a State participant.86 Thus certain ‘terrorist’ actions by non-​State actors are now considered to be a breach of inter­ national law and, presumably, therefore give rise to international obligations by those non-​State actors. These are just some examples in which the activities of non-​State participants in the international legal system are law-​making and are thus a source of international law. Indeed, a judge of the ICJ has noted that the actions of non-​State actors ‘cannot be completely discounted in the formation of customary international law today’.87

82   Agreement between the Government of the Republic of Sudan and the Sudan People’s Liberation Movement to Protect Non-​Combatant Civilians and Facilities from Military Attack (10 March 2002) as quoted in Sivakumaran, The Law of Non-​International Armed Conflict, p.  128. See Scott Sheeran, ‘International Law, Peace Agreements and Self-​Determination: The Case of Sudan’, International and Comparative Law Quarterly 60 (2011): 421–​58. 83   Sadiq Shek Elmi v Australia (2000) 7 IHRR 603 (Committee against Torture) and see Robert McCorquodale and Rebecca La Forgia, ‘Taking off the Blindfolds: Torture by Non-​State Actors’, Human Rights Law Review 1 (2001): 189–​218. 84   See e.g., Permanent Court of Arbitration, Abyei Arbitration (The Government of Sudan v Sudan Peoples’ Liberation Movement/​Army) Final Award, 22 July 2009, 48 ILM 1258. See also 104 American Journal of International Law (2010): 66–​73. 85   Anthea Roberts and Sandesh Sivakumaran, ‘Lawmaking by NonState Actors: Engaging Armed Groups in the Creation of International Humanitarian Law’, Yale Journal of International Law 37 (2012): 107–​52. 86   See UNSC Res. 1373 (28 September 2001), particularly para. 5, which ‘[d]‌eclares that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations.’ 87   Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) [2002] ICJ Rep 3, 137, 155 (Dissenting Opinion of Judge Van den Wyngaert).

robert mccorquodale   765 This development in international law-​making beyond States has been criticized as giving international legal status to non-​State actors and legitimation of their activities,88 despite their lack of representativeness and possible bias.89 This concern about legitimation is often raised by States in relation to armed groups and applying international humanitarian law obligations direct to them.90 However, after reviewing the arguments, Andrew Clapham found that there was little empirical evidence to support these concerns about legitimization,91 and, in any event, that a pluralism of sources can assist towards legitimacy of international law itself.92 Accordingly, it is appropriate to conclude that the participation of non-​State actors can create international law.93 While the extent of non-​State actors’ law-​ making may not be as extensive as States, and it may only be binding in certain areas of the international legal system, it is nevertheless a source of international law.

VII.  Diversity of Sources The plurality of sources of participants in the international legal system is shown in the diversity of actors undertaking international law-​ making activity. The State remains the main source of international law, as the legal pluralism framework allows for disparities in power and other differences between normative

 See Holly Cullen and Karen Morrow, ‘International Civil Society in International Law: The Growth of NGO Participation’, Non-​State Actors in International Law 1 (2001): 7–​39. 89   See Boyle and Chinkin, The Making of International Law, p. 60: ‘in light of the imbalance between international NGOs from the northern industrialized countries and those from the developing countries, another effect . . . might be to replicate State power structures by furthering the bias in favour of the agendas of the North’. 90   This is despite the terms of Common Article 3 of the Geneva Conventions and Art. 4 of Additional Protocol I to the Geneva Conventions stipulating that the application of those treaties does not affect the legal status of parties to the conflict. 91  Clapham, Human Rights Obligations of Non-​State Actors, pp. 46–​53. 92   See Tasioulas, ‘The Legitimacy of International Law’, p. 111. See also d’Aspremont, ed., Participants in the International Legal System, especially pp. 3–​5. 93  Sergio Iván Anzola-​Rodríguez, ‘Governing through Customary International Law?’, Revista Colombiana de Derecho Internacional 20 (2012):  165–​84 notes that ‘if the daily practice and flow of investment is not between States but between a host State and a foreign investor[,]‌the established, widespread and consistent practice and opinio iuris must also be [sought] in the foreign investor’. 88

766    sources and the subjects of international law orders.94 There will be some areas where the State is the only source and some where there is more than one source. For example, César Rodríguez-​Garavito considers that ‘the struggle for worker rights takes place in a context of legal pluralism in which national laws, International Labour Organization (ILO) Conventions, corporate codes of conduct, social clauses in bilateral and regional trade agreements, and unilateral sanctions overlap and clash.’95 In some areas, a non-​State actor’s law-​making may be more determinative, such as where powerful corporate-​determined economic regulation is at the expense of the State’s social regulation. This could reflect a ‘paradigm shift from a regulatory to a governance model’,96 or a ‘shift of power relations in favour of a limited group of corporate actors’.97 In other areas, the participation of non-​State actors, such as NGOs in the treaty process, can provide greater transparency and accountability of States for their negotiating positions, especially as accountability will usually be increased with greater participation within a community.98 Indeed, as Jürgen Habermas demonstrates, law-​making and opinion formation are mutually informing processes, which are shaped by a variety of participants, national and international, and not only by States.99 As a consequence, there has become ‘a peculiar process of interaction between traditional law mechanisms and transnational social processes with the mediation of non-​State actors [to become] a novel method of law-​making and law enforcement’.100 This ‘novel method’ is one of plurality of international law-​making that is not limited to States. It is reflective of the changes in the international community and of the understanding of law-​ making in it. It is also able to develop over time as the international legal community changes. Therefore, the sources of ‘subjects’ of international law are not ‘subjects’ and are not solely States. They are the participants in the international legal system

 See Schiff Berman, Global Legal Pluralism, and Ralph Steinhardt, ‘Soft Law, Hard Markets: Competitive Self-​Interest and the Emergence of Human Rights Responsibilities for Multinational Corporations’, Brooklyn Journal of International Law 33 (2007): 933–​54. 95  César Rodríguez-​ Garavito, ‘Nike’s Law:  The Anti-​ Sweatshop Movement, Transnational Corporations, and the Struggle Over International Labour Rights in the Americas’, in De Sousa Santos, Towards a New Legal Common Sense, p. 65. 96   Rodríguez-​Garavito, ‘Nike’s Law’, p. 77. 97   Arthurs, ‘Private Ordering and Workers’ Rights’, p.  194. Brunnée and Toope, Legitimacy and Legality, p. 81, note that ‘communities of practice can also accommodate a plurality of actors’. 98   See e.g., the impact of NGOs on States during the drafting of the Climate Change Convention: Robyn Eckersley, ‘Soft Law, Hard Politics, and the Climate Change Treaty’, in Reus-​Smith, ed., The Politics of International Law, 80–​105. 99   Jürgen Habermas, The Inclusion of the Other (Boston: MIT Press, 1998). 100   Andrea Bianchi, ‘Globalization of Human Rights:  The Role of Non-​State Actors’, in Gunther Teubner, ed., Global Law Without a State (Dartmouth: Aldershot, 1997), 179–​212, 201. 94

robert mccorquodale   767 who create law, and these include non-​State actors, such as corporations, armed groups, and NGOs.

VIII.  A Different International Legal Story There is no ‘once upon a time’. The facts of the international legal story today are real and not invented. The daily lives and the laws that affect people around the world are not made solely by States. Many non-​State actors have global law-​making impact. This is not a historical story but a contemporary dynamic and, at times, an uncertain one. Participants are not restricted to the privileged few. It is a story of the real international legal system and its sources. This story should not be a work of fiction. THE END

Research Questions • To what extent can sources of international law remain solely those based on State actions alone? • Can global legal pluralism offer a way to understand law-​making in international law that includes the actions of non-​State participants?

Selected Bibliography Besson, Samantha, and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010). Boyle, Alan, and Christine Chinkin, The Making of International Law (Oxford:  Oxford University Press, 2007). De Sousa Santos, Boaventura, Towards a New Legal Common Sense: Law, Globalization, and Emancipation (London: Butterworths, 2002).

768    sources and the subjects of international law Higgins, Rosalyn, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994). McCorquodale, Robert, International Law beyond the State (London:  Cameron May, 2011). Roberts, Anthea, and Sandesh Sivakumaran, ‘Lawmaking by NonState Actors:  Engaging Armed Groups in the Creation of International Humanitarian Law’, Yale Journal of International Law 37 (2012): 107–​52. Schiff Berman, Paul, Global Legal Pluralism:  A  Jurisprudence of Law Beyond Borders (Cambridge: Cambridge University Press, 2012). Schreuer, Christoph, ‘The Waning of the Sovereign State:  Towards a New Paradigm for International Law’, European Journal of International Law 4 (1993): 447–​7 1.

Chapter 36

SOURCES AND THE SUBJECTS OF INTERNATIONAL LAW THE EUROPEAN UNION’S SEMI-​AUTONOMOUS SYSTEM OF SOURCES

Bruno De Witte

I. Introduction The question of who counts as a subject of international law is a controversial one, and that controversy poses particular problems to the ascertainment of the sources of international law, as is shown by the companion chapter to this one.1 Yet, even the existence of such a well-​established category of subjects as that of international organizations poses challenging questions for the doctrine of sources of international law, which was originally developed for a world in which only States were   See ­chapter 35 by Robert McCorquodale in this volume.

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770    sources and the subjects of international law envisaged as the subjects of international law. This chapter addresses some of those challenges, by focusing on the most ‘advanced’ international organization, the European Union (EU). The chapter examines how the conception of the sources of law that was developed in the EU legal order may affect our understanding of the sources of international law. Several authors have reflected in general terms about the impact of the law of international organizations on the doctrine of sources. According to a recent synthesis by Mathias Forteau,2 the law of international organizations has made two main contributions to the doctrine of sources: it has led to the development of new categories of sources (namely: the ‘constitutive treaty’, the unilateral acts of the organization, and the practice of the organization); and it has led to the emergence of new relations between sources (namely: the creation of a hierarchy among the sources of a particular organization, and the construction of a relationship between the law of the organization and other norms of international law). This chapter aims to show how the EU legal order has gone further than most organizations in both these respects:  it has developed its own ‘semi-​autonomous system of sources’ which is significantly different from the regime of sources in other parts of international law. Such an analysis is predicated on the view that the EU is (still) an international organization and that, therefore, the evolution of its system of sources of law has a direct bearing on the sources of international law more generally. When the European Communities were created in the 1950s, there was no doubt that they were created as international organizations and that Community law was therefore a subsystem within international law. The ‘treaty path’ was also followed at later stages of the European integration process. Revisions of the so-​called ‘founding Treaties’ have,3 together with accession treaties, remained the main instruments for the legal deepening and widening of European integration. Yet, despite this continuing anchorage in international law by means of the founding Treaties, there is quite some disagreement in the scholarly literature as to whether the EU should still be considered to belong to the ‘general’ category of international organizations.4 Many EU law scholars argue that the EU is a sui generis legal reality which 2   Mathias Forteau, ‘Organisations internationales et sources du droit’, in Evelyne Lagrange and Jean-​Marc Sorel, eds, Droit des organisations internationales (Paris: LGDJ, 2013), 257–​85, particularly sections 1 and 3. 3   I  will use that expression in this chapter to refer to the European Coal and Steel Community (ECSC), European Economic Community (EEC), European Community (EC) and EU treaties in different periods of time; as well as to the Treaty on European Union (TEU) (Consolidated version 2016–​OJ C 202 (2016)), and the Treaty on the Functioning of the European Union (TFEU) (Consolidated version 2016–​OJ C 202 (2016)) today. 4   For more on this discussion, see Bruno de Witte, ‘EU Law: Is it International Law?’, in Catherine Barnard and Steve Peers, eds, European Union Law (Oxford: Oxford University Press, 2015), 174–​95; Robert Schütze, European Constitutional Law (Cambridge: Cambridge University Press, 2012), ch. 2; Antoine Bailleux and Hugues Dumont, Le pacte constitutionnel européen (Brussels:  Bruylant, 2015), pp. 200–​63.

bruno de witte   771 is no longer part of the broader category of international organizations, but this chapter rather starts from the opposite view (widely shared among international lawyers) that the EU is ‘just’ a very particular species of the genus of international organizations. What follows from that view is (i) that the construction of a system of sources of EU law can best be interpreted as an example of the construction of an autonomous subsystem within international law; and (ii) that the development of the EU’s regime of sources can tell us something about the sources of international law generally and can serve as inspiration for other international organizations. The chapter is organized in two main parts. The first one (section II: A Separate System of Sources of EU Law) emphasizes the separate character of the EU’s system of sources, whereas the second part (section III: The Continuing Reliance on the General Sources of International Law) notes the various ways in which that system continues to rely on the traditional sources of international law, particularly on the treaty instrument. Together, these two parts aim to justify the choice of the words ‘semi-​autonomous system of sources’ used in the subtitle of this chapter.

II.  A Separate System of Sources of EU Law The EU legal order is conceived by its highest judicial authority, the Court of Justice of the European Union (CJEU), as a structured legal order comprising a clear hierarchy of sources that departs from the traditional ‘horizontal’ nature of international law where the main sources of law do not stand in a hierarchical relationship with each other. The system of sources of EU law consists today, roughly speaking, of five major elements: at the summit of the legal hierarchy are the founding (or ‘basic’) Treaties themselves, essentially the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), as well as the EU Charter of Rights and Freedoms which is given ‘the same legal value’ as the two Treaties by the terms of Article 6 TEU; next to them, and at the same hierarchical level, are the unwritten general principles of EU law that act as standards for the judicial review of EU acts by the CJEU; then, at a lower level of the hierarchy, come the international agreements concluded by the EU which must be in conformity with the founding Treaties and the general principles but prevail over the rest of EU law; at a still lower level, we find the binding acts adopted by the EU institutions (mostly called, in the Brussels jargon, the ‘legal instruments’); and finally a proliferation of various non-​binding legal acts that can generically be called ‘soft law’.

772    sources and the subjects of international law As will be shown in the following pages, the CJEU has been the main actor in the development of this hierarchical order, also in situating this system of EU sources of law at arm’s length from the overall international regime of sources. Alongside the Court, the EU Member States themselves (especially when revising the founding Treaties), as well as the EU institutions, have contributed to the development of an idiosyncratic system of sources. That idiosyncrasy will be illustrated in the following pages by discussing two positive and two negative elements. The positive dimension consists of two ways in which EU law developed the existing practice of the law of international organizations, namely by the creation of a differentiated and subtle system of instruments of secondary EU law (section II.1), and by the great importance assumed by an unwritten source, the general principles of EU law (section II.2). The negative dimension is represented by two ways in which the EU system has taken distance from international law: by the rejection of the idea that States can, through their practice, modify the content of treaties which they have concluded (section II.3); and by the affirmation of the primacy of the EU’s own highest norms over other norms of international law (section II.4).

1. The Legal Instruments: Continuity and Change The most visible distinctive characteristic of the sources of EU law, compared to the rest of international law, is the existence of a wide range of binding instruments of so-​called ‘secondary EU law’. In addition, the EU has also developed a range of variously named non-​binding instruments, but this characteristic is perhaps less distinctive from the rest of international law, and I will not dwell upon it here.5 The main provision in the current treaty text dealing with the EU’s legal instruments is Article 288 TFEU, which lists several of them: ‘[t]‌o exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions’. In fact, and rather surprisingly, the list of five instruments in Article 288 TFEU has not changed compared to the corresponding article of the original EEC Treaty in 1958. At the time, the regulation was considered a major breakthrough in the practice of the law of international organizations, since this instrument allowed the Community to adopt general measures that were to be directly applicable in the legal order of its Member States. The other two binding instruments seemed less innovative at the time. Directives were to be, like the regulations, measures of   For inventories of the variety of soft law instruments in EU law, and of the variety of functions they fulfil, see Linda Senden, Soft Law in European Community Law:  Its Relationship to Legislation (Oxford: Hart, 2004); Silvère Lefèvre, Les actes communautaires atypiques (Brussels: Bruylant, 2006); Oana Stefan, Soft Law in Court: Competition Law, State Aid and the Court of Justice of the European Union (Alphen: Kluwer Law International, 2013). 5

bruno de witte   773 general application, but their impact on the national legal order was to be diluted by their subsequent transformation into norms of national law; whereas the decision was a more familiar denomination in the practice of international organizations at that time. This system operated on the basis that the choice of the legal instrument was to depend on the policy objective which the European institutions sought to achieve in any given instance. The embodiment of this ‘subject-​matter specialization’ of the use of sources was the legal basis requirement. Each legal basis provision in the Treaties specified not only the domain within which the Community could act and/​or the objectives it should set itself, but also the legal instruments that could be used for that purpose, the institution that could adopt those instruments, and the decision-​making rules that should be followed. So, for example, the Treaty chapter on competition law specified from the start that the legal instruments to be used in this area were to be, essentially, the regulation and the decision; whereas harmonization of national laws, when needed for a better functioning of the common market, would have to be done by means of directives or conventions concluded between the Member States (on the latter instrument, see section III: The Continuing Reliance on the General Sources of International Law below). Despite the fact that the current list of Article 288 TFEU corresponds to the original list contained in the EEC Treaty of 1957, the regime of legal instruments has undergone an important legal evolution in the intervening decades. One important element of that evolution is that additional binding instruments were added and then disappeared again. Indeed, the Maastricht Treaty, in 1992, gave important new policy competences to the EU that were made subject to specific institutional rules departing radically from existing Community law. Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (JHA) were conceived so differently from the rest, institutionally speaking, that the Member States decided to enact a wholly new Treaty and establish a new organization (the EU) to accommodate them, so as to emphasize that ‘normal’ Community law mechanisms should not apply to those policy domains. Specifically, the existing instruments of Community law were discarded in favour of two separate sets of special instruments, one for CFSP and one for JHA.6 This was, probably, pushing the preference for institutional specificity too far, since those novel legal sources—​especially the ones provided for JHA—​proved to be legally controversial and ineffective. The institutional fragmentation created by the Maastricht Treaty was streamlined into a more coherent system by the Lisbon Treaty (entered into force in December 2009) which abolished the separate set of legal instruments for those two policy areas. The general typology of legal instruments contained in Article 288 TFEU now applies to the whole 6   For a discussion of the characteristics of those legal instruments of the ‘second and third pillar’, emphasizing their closer proximity to the traditional instruments of international organizations, see Niels Blokker, ‘Decisions of International Organizations: The Case of the European Union’, Netherlands Yearbook of International Law 30 (1999): 3–​44, 28 ff.

774    sources and the subjects of international law of EU law, although CFSP is still distinguished from the other policy areas by the fact that the only binding legal instrument available for that domain is the decision (and the external agreement with third countries), whereas directives and regulations cannot be used (see Article 25 TFEU). The decision has now become a true all-​purpose instrument, which, depending on the case, can be used for the adoption of individual acts, of funding programmes, and of foreign policy actions of various kinds; in this respect, EU law has remained close to the practice of more traditional international organizations, where the denomination ‘decision’ is commonly used for a variety of legal instruments. Apart from these changes in the nomenclature, the evolution of the legal regime has been principally marked by the erosion of the central distinction between the two law-​making instruments, the regulation and the directive. This differentiation was originally intended to express a distinction between more and less ‘supranational’ areas of Community policy but has, in current practice, lost that connotation.7 Both instruments are used today almost interchangeably in all areas of EU law when it comes to effectuate changes in the domestic law of the Member States. Specifically, the fact that regulations are said by the Treaty text to be ‘directly applicable’ in the national legal orders does not radically differentiate them from directives and decisions. Indeed, many regulations require implementing measures by the Member States before they can be applied in practice. Article 296 TFEU, first paragraph, states that ‘where the Treaties do not specify the type of act to be adopted, the institutions shall select it on a case-​by-​case basis, in compliance with the applicable procedures and with the principle of proportionality.’ The reference in Article 296 to the ‘applicable procedures’ acknowledges the fact that it is still specified in a number of legal bases that the EU should act by means of either regulations or directives, although in most cases, the legal basis articles use passe partout terms such as ‘provisions’ or ‘measures’, which allow for an ad hoc choice of the most convenient instrument by the EU institutions. Within the broad category of legal instruments, the Treaty text does not establish an internal hierarchy. There is no hierarchical ranking between regulations, directives, and decisions. However, within each of these three categories, there is a ‘hidden’ hierarchy: since the Lisbon Treaty, there exist three sub-​versions of each of the three binding legal instruments: there are legislative regulations, directives, and decisions; delegated regulations, directives, and decisions; and implementing regulations, directives, and decisions. The nature of the act is now visible from its title. Indeed, the adjective ‘delegated’ is inserted in the title of delegated acts and the word ‘implementing’ is inserted in the title of implementing acts.8 Therefore,   For a discussion of the distinction between the regulation and the directive from the perspective of the vertical division of powers between the EU and its member States, see Robert Schütze, ‘The Morphology of Legislative Power in the European Community:  Legal Instruments and the Federal Division of Powers’, Yearbook of European Law 25 (2006): 91–​151, 112. 8   See, respectively Art. 290 (3) and Art. 291 (4) TFEU. 7

bruno de witte   775 regulations, directives, and decisions without any of these two adjectives in their title will normally be legislative acts. This improves somewhat the transparency of the EU’s system of sources, compared to the pre-​Lisbon situation, when the title of the instrument did not give any indication as to its legislative or executive nature. This reform brings the EU regime of sources closer to that of national legal systems, where legislative and administrative acts are usually clearly distinguished by their denomination.

2. The Court’s ‘Own Source’: General Principles of EU Law Whereas the general principles of international law (GPIL) play a very limited role in the judicial practice of international courts, the general principles of Union law (GPUL) form a prominent source of the EU legal order, and one which is frequently applied by the CJEU and by the national courts of the EU Member States. Despite the terminological proximity, the GPUL is not a sub-​category of the GPIL, but an EU-​specific source. Indeed, the lingering doubts as to whether GPIL should be considered as self-​standing norms or rather as mere guides for the interpretation of (other) legal norms does not apply to GPUL; the CJEU routinely applies them as self-​standing unwritten norms, alongside the written norms of the Treaties, giving them the same rank of primary EU law. This is, in fact, the most striking contribution by the CJEU to the development of the EU’s separate system of sources. The original text of the EEC Treaty referred to the ‘general principles common to the laws of the member States’ only in one very specific context, namely as forming the basis of the legal regime of tort liability of the EC institutions (this provision is now in Article 340 TFEU). Despite this limited textual ground, the CJEU developed a much broader range of general principles by a Treaty article calling on the Court to ‘ensure that in the interpretation and application of the Treaties the law is observed’;9 the Court considered that the ‘law’ could encompass unwritten general principles beyond the text of the Treaties themselves and of the written instruments of Community law. The model followed by the CJEU in developing its general principles case law was not that of any previous international court, but rather that of the French Conseil d’Etat, which had similarly shaped the legal protection of the individual against the State on the basis of unwritten principles of law. The creation of this source of law, and the prominence given to it by the Court, were never challenged by the EU Member States. On the contrary, they have to some extent ‘codified’, through incorporation in the Treaties, general principles which had first been developed by the Court. This happened, most prominently, with fundamental rights: the Court’s approach, of incorporating those rights wholesale   This formula, unchanged since the 1950s, is now in Art. 19 (1) TEU.

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776    sources and the subjects of international law within the category of general principles, was approved by the Member States in the Maastricht Treaty, and it is only later on that the EU set out to develop its own written catalogue of rights, the EU Charter of Rights. Despite this codification of fundamental rights, unwritten general principles continue to be an important source of law in the Court’s review of the legality of EU action, and in its interpretation of the duties of the Member States when acting within the scope of EU law. The principles of proportionality, legal certainty, and legitimate expectations are thus frequently used in the case law of the CJEU and of national courts.10

3. The Rejection of Treaty Change through Subsequent Practice In the law of international treaties, there is some doctrinal controversy as to whether treaties can be modified, not only by means of their formal amendment, but also by implication and without their text being changed—​either by the emergence of a new customary law norm or (more likely) by means of subsequent practice of the contracting parties that supersedes the original text of the treaty.11 In EU law, that possibility has been clearly rejected by the CJEU. A clear ruling in this sense came in the Defrenne judgment of 1976, in which the Court stated that ‘apart from any specific provisions, the [EEC] Treaty can only be modified by means of the amendment procedure carried out in accordance with Article 236’.12 The Court’s central concern might well have been that, if one were to accept the possibility of an informal treaty amendment, the governments of the Member States could unilaterally modify the foundations of the legal order without the checks and balances (in particular, the involvement of EU institutions) provided by the normal treaty amendment procedure. Along the same lines, in a number of cases the CJEU insisted that ‘a mere practice’ of the EU institutions cannot override the provisions of the EU Treaties.13 The Court made those statements in cases where one or another of the EU institutions claimed that ‘this is how we have consistently been doing things in practice’, 10   Among the many instances in which national courts were called by the CJEU to apply the EU principles of legitimate expectations and legal certainty, see CJEU, Stichting ‘Goed Wonen’, 26 April 2005, Case C-​376/​02, EU:C:2005:251, point 32; and CJEU, Elmeka, 14 September 2006, Joint Case C-​181/​ 04 to 183/​04, EU:C:2006:563, point 31. 11   This unorthodox form of treaty amendment is not expressly codified in the Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331), but some legal writers consider it to be covered by the general wording of Art. 39 of the VCLT, stating that ‘a treaty may be amended by agreement between the parties’. 12  CJEU, Defrenne, 8 April 1976, Case 43/​75, EU:C:1976:56, point 57. Article 236 EEC Treaty contained the formal Treaty amendment procedure (now replaced by Art. 48 of the EU Treaty). 13  CJEU, UK v Council, 23 February 1988, Case 68/​86, EU:C:1988:85, point 24; CJEU, France v Commission, 9 August 1994, Case C-​327/​91, EU:C:1994:305, point 36.

bruno de witte   777 whereas the other institution, or a Member State, claimed that the practice was contrary to the Treaty text and therefore illegal. In such disputes, the Court always took the latter view, in the name of preserving the ‘institutional balance’ or the division of powers between the EU and its Member States, as set out in the Treaty text. Finally, the alternative way of Treaty change by means of a modification agreed among some of the parties to the original treaty, which is codified in Article 41 of the VLCT, is excluded within the EU legal order. Agreements between some EU States are treated in the same way as unilateral action of those States: they are subject to the primacy of EU law,14 and if they contain provisions that conflict with norms of EU law, those provisions must be set aside by the national courts of the States concerned or by the CJEU in infringement proceedings brought by the Commission.

4. The Autonomy of the Legal Order from the ‘Rest’ of International Law The CJEU has repeatedly affirmed the autonomy of the EU legal order in respect of its international legal environment. In terms of sources, this position implies that norms of international law can apply to the operation of the EU only to the extent that the EU legal order allows for this. Thus, in its Kadi judgment, the CJEU referred to the Charter of the United Nations, stating that ‘an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community legal system’.15 The EU legal order has developed some well-​known rules on the integration between ‘general IL’ and ‘specific EU’ sources of law. Some of those rules are laid down in the text of the founding Treaties, whereas others were developed by the CJEU over the course of time. The first, and most important of those ‘integration rules’ is that international agreements concluded by the EU are part of the EU legal order without the need for ‘dualist’ transformation and prevail over provisions in secondary EU law16—​although this primacy can be judicially enforced only when the conflicting provisions of EU law are subject to judicial review (which excludes, nowadays, many measures of EU foreign policy) and if the relevant international  As recently confirmed by the CJEU, Thomas Pringle, 27 November 2012, Case C-​ 370/​ 12, EU:C:2012:756, point 69. 15  CJEU, Kadi and Al Barakaat v Council, 3 September 2008, Cases C-​402/​05 P and C-​415/​05 P, EU:C:2008:461, point 282. Similar language is used in point 316 of the judgment: ‘the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement’, and in point 317: ‘the question of the Court’s jurisdiction arises in the context of the internal and autonomous legal order of the Community . . . ’. 16   The Court has drawn this (logical) conclusion from the Treaty norm stating that ‘Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States’ (Article 216 (2) TFEU). 14

778    sources and the subjects of international law agreement lends itself to judicial enforcement (a criterion which has famously been used by the CJEU to exclude the enforcement of WTO norms and dispute settlement decisions as well as, more recently, the enforcement of the UN Convention on the Law of the Sea).17 A second integration rule acts as a principled limit to the openness of the EU legal order to external obligations: the priority of external agreements does not extend to cases of conflict with norms of primary EU law; that is, the norms contained in the founding Treaties and those that form part of the general principles of Union law. A  typical application of this conflict rule occurred in the case Germany v Council of 1998, in which the Court held that the Framework Agreement on Bananas which the European Community had validly concluded with four Latin American countries could not receive application within the EC legal order because it breached the general principle of non-​discrimination (as it harmed the interests of particular categories of banana importers in a disproportionate way).18 In that case, the CJEU did not feel the need to mention the autonomy of the Community legal order:  it seemed to accept without further justification that the EC Member States had established a specialized legal order in which certain values and rights were constitutionally entrenched, so that validly concluded international obligations conflicting with those values and rights should not be applied. What the CJEU did ten years later in Kadi was not much different: again, it decided to refuse the application of ‘external’ international obligations to preserve what it considered to be fundamental norms of the ‘internal’ legal order of the Union, namely the rights of the defence. Yet, this time, it chose to preface its detailed discussion of the meaning of those rights by a general argument in which the autonomy of the EU legal order was highlighted. The judgment thus acted as a rather spectacular ‘reminder’ of the fact that the EU legal order had long established its autonomy towards that wider international legal system.19 Although the CJEU did not call into question its traditional view that international agreements of the EU form part of the EU legal order upon their ratification and entry into force (and, in this respect, Kadi is not a dualist ruling), it did repeat the view that international obligations concluded by the EU cannot prevail over the highest norms of the internal EU legal order.   There is abundant literature on the restrictive attitude of the CJEU towards the application of WTO law and decisions of the WTO’s dispute settlement organs, which is often contrasted with its more open attitude to the judicial enforceability of other agreements concluded by the EU. In the Intertanko judgment (3 June 2008, Case C-​308/​06, EU:C:2008:312), the Court controversially extended its WTO approach to the UN Convention on the Law of the Sea. See generally on this question, Mario Mendez, The Legal Effects of EU Agreements—​Maximalist Treaty Enforcement and Judicial Avoidance Techniques (Oxford: Oxford University Press, 2013). 18  CJEU, Germany v Council, 10 March 1998, C-​122/​95, EU:C:1998:94. 19   Jean d’Aspremont and Frédéric Dopagne, ‘Kadi: The ECJ’s Reminder of the Elementary Divide between Legal Orders’, International Organizations Law Review 5 (2008): 371–​9. 17

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III.  The Continuing Reliance on the General Sources of International Law This section of the chapter is a counterpoint to section II:  A  Separate System of Sources of EU Law. Whereas section II sought to show the various ways in which a distinctive system of sources of EU law was built, this section seeks to show that the EU legal order continues to be anchored in its broader international environment. The EU ‘uses’ the traditional toolbox of sources of international law in three different ways: international treaties continue to form the foundation of the EU legal order (section III.1); international treaties continue to be used as a means to develop the EU’s internal policies as a complement to the EU’s ‘own’ legal instruments (section III.2); and the EU obviously uses the various sources of international law in its relations with the rest of the world and, in doing so, contributes to the ongoing evolution of the international law of sources (section III.3).

1. International Treaties as the Unchallenged Foundation of the EU Legal Order The Lisbon Treaty is the last of a series of major international treaties which EU Member States have concluded in order to define their cooperation in the framework of the European Communities first, and the EU later. International law has thus provided, from the start and until now, the basic legal instruments for the overall organization of the European integration process. Even the botched attempt, in 2002–​2005, to enact a ‘Constitution for Europe’ was seen by all the leading actors, without much controversy, as involving technically speaking a revision of the existing EU Treaties in accordance with the procedure of Article 48 of the EU Treaty, rather than the creation of a wholly new legal edifice that would be situated outside international law. According to Article IV-​447 of the Treaty establishing a Constitution for Europe, it had to be ‘ratified by the High Contracting Parties in accordance with their respective constitutional requirements’ before it could enter into force, which was a clear recourse to the coded language of the law of international treaties. The Treaty of Lisbon then discarded the constitutional ambition and semi-​constitutional terminology used by the Constitutional Treaty, and did not pretend to be anything else than ‘just’ an international treaty. The EU treaty revision regime fits within the general rules on amendment of multilateral treaties, as laid down in Articles 39 and 40 of the VCLT. Article 39 contains the very simple default rule that a treaty may be amended by an agreement between all the parties, and the normal rules on the conclusion of treaties apply to this amending

780    sources and the subjects of international law agreement. This default rule may be set aside by the parties when concluding the original (to-​be-​amended) treaty. The international law regime of treaty amendment is, thus, one of utmost flexibility: the contracting parties are free to arrange for the later amendment of their treaty in the way they wish. Indeed, a large and increasing number of multilateral treaties contain such a special amendment procedure, which is generally aimed at facilitating adaptation to changing circumstances, often by allowing for the amendment of a treaty without the agreement of all the parties.20 Article 48 of the EU Treaty is an example of a specific amendment clause but, contrary to most others, it does not provide more flexibility than the default rule of Article 39 of the VCLT. It requires the agreement of all the parties (in this case, the Member States of the EU) for the valid adoption of an amendment and, in addition, it requires a degree of involvement of the EU institutions in the preparation of the revision, as well as the subsequent ratification by each State according to its own constitutional requirements. The Lisbon Treaty did, however, create two special procedures for ‘simplified’ treaty revision. The main one, described in Article 48 (6) of the EU Treaty, applies to amendments of ‘Part Three of the Treaty on the functioning of the European Union relating to the internal policies and action of the Union’, altogether some 171 treaty articles, and this procedure was first used for the amendment of Article 136 TFEU, situated in the chapter dealing with economic policy: a new paragraph added to that article expressly allowed for the creation of a financial stability mechanism by the Member States of the Euro area. The main feature of the simplified procedure, from the perspective of sources of law, is that the amendment is made by means of a unanimous decision of the European Council (to be ‘approved’ by each Member State separately) rather than by means of an international treaty (to be ratified by each Member State). This phenomenon of treaty amendment by means of an ‘internal decision’, which is rather common in the law of international organizations, had remained very exceptional in the EU legal order thus far. The exclusive position of the Treaties at the summit of the EU’s hierarchy of norms was also affected by another innovation of the Lisbon Treaty, namely the incorporation of the Charter of Fundamental Rights into primary EU law. According to a renvoi clause in Article 6 (1) TEU, the Charter ‘shall have the same legal value as the Treaties’. But the Charter is not a treaty itself; it is an atypical instrument which was ‘solemnly proclaimed’ (rather than ‘adopted’) by the EU’s Commission, Council, and Parliament acting together.21 Thereby, the ‘top layer’ of the hierarchy of sources of EU law is now composed, to a large extent, by a document which is not an international treaty itself but which receives its legal force from being referred to in an international treaty. 20   For a short survey of such ‘facilitating clauses’ in treaties establishing an international organization, see C. F. Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd edn (Cambridge: Cambridge University Press, 2005), pp. 447–​63. 21   For those formal characteristics of the Charter, see its publication in the OJEU 2000, C 364/​1.

bruno de witte   781

2. International Agreements as a Complementary Tool for Interstate Cooperation in the EU Context Apart from forming the foundation of the EU legal order, international treaties have also played a more mundane, day-​to-​day role as subsidiary instruments for the ‘internal’ development of EU policies, alongside the more prominent unilateral instruments of secondary law discussed in section II: A Separate System of Sources of EU Law. In the original text of the EEC Treaty, conventions concluded between the Member States were expressly included among the available legal instruments. Such treaties could be called complementary or parallel agreements,22 since they were to be adopted in connection with the founding Treaties by the very same contracting parties, namely all EEC Member States together, without the participation of any third countries. The reference to this instrument was not unusual at the time, since other international organizations, such as the International Labour Organization and the Council of Europe, already used conventions as their principal law-​making instrument (as they still do today).23 Such complementary agreements were envisaged, in the text of the EEC Treaty, for the following domains: abolition of double taxation within the Community, the mutual recognition of companies or firms, the retention of legal personality in the event of transfer of a company’s seat from one country to another, and the recognition and enforcement of judgments of national courts. These were areas identified in 1957 as calling for the adoption of uniform laws accompanying the creation of a common market, and international agreements seemed more suitable for that purpose than the regulations and directives whose nature and use was not clearly established at the time. However, only three such conventions did come into force. Later, the Treaty of Maastricht also provided for the possibility of conventions to be concluded between the EU Member States in the new policy area of Justice and Home Affairs. At that stage of the European integration process, the choice for interstate conventions (rather than the more incisive legal instruments of Community law) was inspired by the wish to preserve the control by the Member States on the adoption and application of these instruments (in the same way as with Council of Europe conventions, for example). In the years following the entry into force of the Treaty of Maastricht, many such conventions were concluded, but only   The term ‘complementary law’ is used in Armin von Bogdandy, Felix Arndt, and Jürgen Bast, ‘Legal Instruments in European Union Law and their Reform: A Systematic Approach on an Empirical Basis’, Yearbook of European Law 23 (2004):  91–​136, 117. For the expression ‘parallel agreements’, see Bruno de Witte, ‘Chameleonic Member States:  Differentiation by Means of Partial and Parallel International Agreements’, in Bruno de Witte, Dominik Hanf, and Ellen Vos, eds, The Many Faces of Differentiation in EU Law (Antwerp: Intersentia, 2001), 231–​67. 23  On the current practice in this respect, see Jan Klabbers, An Introduction to International Organizations Law, 3rd edn (Cambridge: Cambridge University Press, 2015), pp. 171–​3. 22

782    sources and the subjects of international law one of these actually entered into force during the following years, namely the Europol Convention.24 Generally, parallel agreements proved to be a disappointment, mainly because, as they require ratification by the national parliaments, their entry into force and subsequent amendment became a very cumbersome operation. The EU Member States were faced with this problem, for example, when they sought, repeatedly, to amend the Europol Convention in order to enlarge Europol’s tasks. Three amending protocols were adopted but none of those three had come into force at the end of 2006. Thereupon, the European Commission proposed instead to repeal the entire Convention and replace it by a Council decision; that is, an instrument of secondary EU law; it argued that ‘the main advantage of a Decision over a Convention is that it is relatively easy to adapt to changing circumstances because it does not require ratification’, and that ‘this is particularly relevant for Europol as an organization, since experience has demonstrated that there is a recurrent need to adapt its legal basis’. 25 The Council agreed unanimously to this transformation of Europol from an international organization into an EU agency.26 Because of this gradual disillusionment with the convention instrument, the Lisbon Treaty entirely omitted to mention complementary conventions as part of the range of possible EU legal instruments. Even the venerable Article 293 EC Treaty, which had provided, since the 1950s, for the conclusion of interstate agreements, was repealed by the Lisbon Treaty. This repeal does not signify that the Member States are now forbidden from concluding international agreements among themselves in connection with the operation of the EU. Indeed, even without a reference in a specific provision of the EU Treaties, the Member States are free in principle to regulate certain matters which are connected to the European integration process in the form of an international agreement concluded between them. This was confirmed by the CJEU in a 1993 judgment,27 and there is no reason why this would have changed now that the Lisbon Treaty has eliminated the express references to the adoption of parallel agreements. Such agreements, however, may not include any rules that conflict with rules of EU law proper. This point deserves to be highlighted since it means that the ordinary conflict rule of international law whereby a later treaty will prevail over an earlier treaty between the same parties is set aside. The EU Treaties are, for their Member States, the principal treaties governing their relations and any parallel agreements between themselves that overlap with the principal treaties should respect the latter’s provisions. 24   Convention on the Establishment of a European Police Office, [1995] OJ C 316/​1 (entered into force on 1 October 1998). 25  European Commission, Draft Council decision establishing the European Police Office, COM(06) 817 of 20 December 2006, p. 2. 26   Council Decision of 6 April 2009 establishing the European Police Office (Europol), OJ 2009, L 121/​37. 27  CJEU, Parliament v Council and Commission, 30 June 1993, C-​181 & C-​248/​91, EU:C:1993:271.

bruno de witte   783 As a counterpoint to this decline of the parallel agreement, we have seen a recent revival of partial agreements between limited groups of EU Member States on subjects closely connected to the operation of the Union. Those agreements operate as instruments for differentiated integration. The conclusion of the ‘Fiscal Compact’ between twenty-​five of the then twenty-​seven Member States, and of the Treaty establishing the European Stability Mechanism between the then seventeen Euro States, are recent and spectacular examples of this use of international law as a mechanism of flexibility in the European integration process.28 In 2014, 26 Member States (all except the UK and Sweden) signed yet another international agreement in the sphere of Economic and Monetary Union (EMU) law, namely the Agreement on the Single Resolution Fund, which is the intergovernmental part of the banking union package.29 A further international agreement closely connected with the functioning of the EU was signed on 19 February 2013 between twenty-​five Member States (all except Croatia, Poland, and Spain), namely the Agreement on a Unified Patent Court.30 That new international court’s main task will be to adjudicate an EU law instrument, namely the Regulation on the creation of unitary patent protection; there was no obvious legal reason why this adjudication task could not have been entrusted to the CJEU, but the ‘patent community’ apparently persuaded the Member State governments that it would be preferable to create a separate and allegedly more expert court by means of an international treaty.31 Although recourse to international side agreements was a novelty in the EMU context, it is a traditional instrument in the toolbox of European integration, which has mainly been used to give legal form to differentiated integration projects, the most prominent examples being the Schengen Agreement of 1985 and Schengen Convention of 1990. The legal possibility for EU States to conclude such inter se agreements hinges on the fact that in areas in which the EU has (only) shared competence, and so long as the EU has not exercised that competence, the Member States preserve the power to adopt their own rules either individually or together   On the political and legal circumstances explaining, and justifying, this recourse to inter se international agreements in the context of the euro crisis, see Bruno de Witte, ‘Using International Law in the Euro Crisis—​Causes and Consequences’, ARENA Working Paper No. 4 (2013); and see, in the same sense, Alberto de Gregorio Merino, ‘Legal Developments in the Economic and Monetary Union during the Debt Crisis:  The Mechanisms of Financial Assistance’, Common Market Law Review 49 (2012): 1613–​45, especially 1635–​40. Among the more critical assessments of this development, highlighting the threat to the EU’s institutional integrity, see Angelos Dimopoulos, ‘The Use of International Law as a Tool for Enhancing Governance in the Eurozone and its Impact on EU Institutional Integrity’, in Maurice Adams, Federico Fabbrini, and Pierre Larouche, eds, The Constitutionalization of European Budgetary Constraints (Oxford: Hart, 2014), 41–​64. 29   Agreement on the Transfer and Mutualisation of Contributions to the Single Resolution Fund, [2014] Council Doc. 8457/​14. It entered into force on 1 January 2016. 30   Agreement on a Unified Patent Court [2013] OJ C 175/​1. 31   See Franklin Dehousse, ‘La juridiction unifiée du brevet:  le nouvel oxymoron du droit européen’, in Inge Govaere, ed., The European Union in the World. Essays in Honour of Marc Maresceau (Leiden: Martinus Nijhoff, 2014), 259–​74, 269. 28

784    sources and the subjects of international law with a group of like-​minded EU States (or, indeed, together with third States), provided that those rules do not conflict with existing EU law obligations.

3. Treaties and Decisions as Instruments of EU External Relations The EU’s significance for the international law of sources is not exhausted by the development of its own internal regime of legal sources to an extent which no other international organization has achieved; the EU is also, more than any other international organization, an active subject of international law. Its unilateral and conventional practice of international relations contributes to the evolution of international law generally, and the evolution of the sources of international law specifically.32 It goes without saying that international treaties in particular are a major instrument of the EU’s external relations. In almost all policy areas, today, the EU regularly appears as a contracting party to international treaties with third States. Indeed, from an internal EU law perspective, the field is ‘wide open’ for the EU on the basis of the well-​known principle, established long ago by the CJEU, that ‘whenever Community law created for the (EU) institutions powers within its internal system for the purpose of attaining a specific objective, the Community has authority to undertake international commitments necessary for the attainment of that objective even in the absence of an express provision to that effect’.33 A particular feature of the EU’s treaty practice that has led to the development of a special new branch of treaty law is the widespread practice of mixed agreements whereby the EU participates in international treaties alongside its member States.34 In addition to its treaty-​making activity, the EU adopts the whole gamut of unilateral, bilateral, and multilateral acts of international law and soft law. Due to its tendency to export its ‘integration-​through-​law’ model abroad, the EU is particularly keen to establish overall institutional frameworks for its relations with third countries or other regional organizations, leading quite often to further international law decisions taken within such frameworks. Also, the CJEU contributes to the development of the international law of sources through its authoritative interpretation of international relations acts of the EU. Although the CJEU is extremely reluctant to allow other international courts to interpret, even indirectly, legal norms of EU   For a survey of that international practice by the EU as it relates to the question of sources, see Frank Hoffmeister, ‘The Contribution of EU Practice to International Law’, in Marise Cremona, ed., Developments in EU External Relations Law (Oxford: Oxford University Press, 2008), 37–​127, 54 ff. 33  CJEU, Opinion 1/​03 (Lugano Convention), 7 February 2006, EU:C:2006:81, point 114 (with reference to earlier opinions of the Court in which this principle was established). 34  Christophe Hillion and Panos Koutrakos, eds, Mixed Agreements Revisited: The EU and its Member States in the World (Oxford: Hart, 2010). In his textbook on the law of international organizations, Klabbers discusses mixed agreements in general but adds that ‘the practical occurrence of this phenomenon is largely limited to the EU’; Klabbers, An Introduction, p. 281. 32

bruno de witte   785 law,35 it does not hesitate, from its own side, to interpret bilateral and multilateral treaties to which the European Union is a party;36 in doing so, it often refers to the methods of interpretation laid down in the VCLT.37

IV. Conclusion What, then, is the overall contribution of this special subject of international law, the EU, to our understanding of the sources of international law? As was mentioned in the introduction of this chapter, international organizations in general are said to have contributed two things to the law of sources: they have developed new categories of sources (namely, the ‘constitutive treaty’, the unilateral acts of the organization, and the practice of the organization); and they have led to the emergence of new relations between sources (namely, the creation of a hierarchy among the sources of a particular organization, and the construction of a relationship between the law of the organization and other norms of international law). In the case of the EU, the constitutive Treaties (today called the TEU and TFEU) have truly fulfilled the role of setting out the operational system of the organization, but have also entrenched many substantive values—​they are as ‘constitutive’, but much more ‘constitutional’, than any other founding treaty of an international organization. The unilateral acts of the EU have come to form the bulk of EU law, and many of them have been integrated in the legal orders of the Member States in a much more effective way than decisions of other international organizations. As to the practice of the EU institutions, it has not been allowed to modify the rules contained in the constitutive Treaties, in contrast with the legally more prominent role that practice plays in other organizations. As for the relationship between the EU’s own sources and those 35  See generally, Bruno de Witte, ‘A Selfish Court? The Court of Justice and the Design of International Dispute Settlement beyond the European Union’, in Marise Cremona and Anne Thies, eds, The European Court of Justice and External Relations Law: Constitutional Challenges (Oxford: Hart, 2014), 33–​46; and, for a recent egregious example, the CJEU’s Opinion 2/​13 of 18 December 2014 on accession of the EU to the European Convention on Human Rights (EU:C:2014:2454), in which the CJEU firmly denied the European Court of Human Rights any role in interpreting, even indirectly, norms of EU law. 36   See e.g., the WTO Agreements: the fact that those Agreements are enforced by the WTO’s Dispute Settlement Body, whose interpretation of WTO law is authoritative, has not prevented the CJEU from proposing its own interpretation of WTO rules when necessary for its own purposes. See e.g., CJEU, Opinion pursuant to Article 300(6) EC (GATS Schedules of Specific Commitments), 30 November 2009, Opinion 1/​08, EU:C:2009:739. 37   See Pieter Jan Kuijper, ‘The European Courts and the Law of Treaties: The Continuing Story’, in Enzo Cannizzaro, ed., The Law of Treaties beyond the Vienna Convention (Oxford: Oxford University Press, 2011), 256–​78.

786    sources and the subjects of international law of the rest of international law, we have seen a mixed picture: the European Union is not a self-​contained legal phenomenon, in that it still relies heavily on the general sources of international law, especially the treaty and the decision, in both its internal operation and its external relations; but at the same time, the CJEU has sought to integrate the norms of rest-​international law into a hierarchical regime in which they must allow precedence to the fundamental norms of the EU legal order. (Even though those fundamental norms, in turn, are mainly laid down in treaties.) The central actor in the construction of this sophisticated regime of sources is undoubtedly the CJEU. The decision of the Member States of the EU to establish an effective system of judicial enforcement and interpretation, originally taken in the 1950s, has allowed the CJEU that was thus created to transform the original Communities into a complex international organization marked by a number of entirely original characteristics, including its semi-​autonomous system of sources.

Research Questions • Can the sources of EU law conceptually be considered as sources of international law, or do they form an entirely separate legal reality? Are authors of textbooks on the law of international organizations right to include EU law within the scope of their book? • Do the Treaties on which the EU is founded fit within the legal regime of the Vienna Convention on the Law of Treaties, in terms of their adoption and subsequent revision or modification?

Selected Bibliography Blokker, Niels, ‘Decisions of International Organizations: The Case of the European Union’, Netherlands Yearbook of International Law 30 (1999): 3–​44. Forteau, Mathias, ‘Organisations internationales et sources du droit’, in Evelyne Lagrange and Jean-​Marc Sorel, eds, Droit des organisations internationales (Paris: LGDJ, 2013), 257–​85. Hoffmeister, Frank, ‘The Contribution of EU Practice to International Law’, in Marise Cremona, ed., Developments in EU External Relations Law (Oxford: Oxford University Press, 2008), 37–​127. Klabbers, Jan, An Introduction to International Organizations Law, 3rd edn (Cambridge: Cambridge University Press, 2015).

Section   XI X

SOURCES AND THE ENFORCEMENT OF INTERNATIONAL LAW

Chapter 37

SOURCES AND THE ENFORCEMENT OF INTERNATIONAL LAW WHAT NORMS DO INTERNATIONAL LAW-​E NFORCEMENT BODIES ACTUALLY INVOKE?

Yuval Shany

I. Introduction In what may be regarded as the quintessential introduction to legal realism, Oliver Wendell Holmes Jr wrote in The Path of The Law that ‘[t]‌he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law’.1 Although this statement nicely captures the centrality of courts in common law systems, it ignores the important role played by many other actors involved in the process of law implementation. These actors include government agencies, such as   Oliver Wendell Holmes Jr, ‘The Path of the Law’, Harvard Law Review 10 (1897): 457–​78, 461.

1

790    sources and the enforcement of international law the police and judgment enforcement officers, and private actors whose conduct is influenced by legal norms. Like courts, non-​judicial actors are engaged in the process of identifying relevant legal norms, establishing their precise contents, and applying them to specific sets of facts. Non-​judicial actors may also employ sanctions against those who fail to comply with their legal obligations. In the international legal sphere, the role of non-​judicial law-​appliers is even more pronounced than in the domestic sphere. Although international adjudication is being resorted to nowadays at a greater frequency than ever before, the compulsory jurisdiction of international courts is still limited in scope. In addition, domestic courts, who could have adjudicated many disputes involving the application of international law norms, are often barred from doing so because of lack of incorporation of international law into their domestic legal order, or because of their lack of familiarity with it. Yet, even when law application is facilitated through the process of adjudication, it may not mean much in the real world, without a complementary process of law enforcement—​that is, without measures designed to ensure compliance with the outcomes of the law-​application process. International law differs considerably, however, from domestic law with respect to its law-​enforcement capabilities: whereas in many domestic law systems, the execution of court decisions is entrusted to a judgment-​enforcement apparatus and is supported by powerful social norms conveying expectations of compliance, there are no centralized enforcement bodies at the international level; nor is there a developed social norm supporting compliance in situations where it strongly conflicts with national interests or domestic values.2 As a result, one may expect to find lower levels of compliance with court decisions at the international level than in many domestic legal systems.3 Hence, were we to adapt Holmes’ adage to the world of international law enforcement, it may be particularly useful to engage in prophecies about which norms would in fact be enforced in order to develop a good understanding of how international law really operates. The present chapter explores the sources of law used by international law-​ enforcing bodies, thus informing our prophecies about their output. Before engaging with the topic, it may be useful to define four related terms used throughout this chapter—​law application, compliance, law enforcement, and law implementation.4

  In fact, the very existence of international law as a system of law has been questioned in the past, based on the structural weakness of its law enforcement apparatus. For a discussion, see e.g., Jean d’Aspremont, ‘The Collective Security System and the Enforcement of International Law’, in Marc Weller, ed., The Oxford Handbook of the Use of Force in International Law (Oxford: Oxford University Press, 2015), 129–​56, 131–​2. 3   Clifford J. Aruba and Matthew Gabel, International Courts and the Performance of International Agreements:  A  General Theory with Evidence from the European Union (New  York:  Cambridge University Press, 2015), p. 158. 4   See Michael G. Salter, Carl Schmitt:  Law as Politics, Ideology and Strategic Myth (Abingdon: Routledge, 2012), p. 109. 2

yuval shany   791 Law application describes the formation of a precise legal determination on the basis of an evaluation of specific facts against a general legal standard;5 such a legal determination often requires targeted actors to take or refrain from taking specific action, and the concept of compliance connotes the purposeful alignment of such actors’ conduct with the conduct required by the applicable norm.6 At the same time, law enforcement involves measures that may be taken by actors other than those targeted by the applicable norm, in order to compel compliance on their part. Such measures typically involve threats of sanctions or acts of compulsion.7 Finally, the term law implementation captures the entire process of transforming law on the books into law in action, and comprises different stages and interactions, including law identification, law interpretation, law application, and, where necessary, law enforcement.8 In practice, the dividing line between law application and law enforcement is often blurred, however. Even a law-​application process that is not supported by a law-​enforcement process may create some pressure on the losing party that could lead to compliance with the applicable norms. Put differently, the finding of a violation by an international court may turn into a reputational sanction that could, itself, exert pressure on the non-​complying actor to adopt law-​compliant measures so as to avoid the stigma of being regarded a law-​violator.9 Hence, law application may contain within it an element of law enforcement. In the same vein, it appears as if law-​enforcement bodies also engage in an element of law application, since law enforcement requires, inter alia, a confirmation that the factual situation continues to be one of non-​compliance, justifying the application of sanctions. In other words, it requires the application of law to facts. The remainder of the chapter discusses the practice of international and domestic bodies, who claim to enforce international law or can be plausibly described as doing just so, and juxtaposes the sources of international law norms on which such bodies rely with the list of international law sources found in Article 38 (1) of the Statute of the International Court of Justice (ICJ).10 It offers in this connection two interrelated surveys: a categorization of the main bodies that engage in international   Hans Kelsen describes the process of ‘law-​application’ as entailing the creation of a ‘lower norm’, based on a ‘higher norm’. Hans Kelsen, Pure Theory of Law, trans. Max Knight (Berkeley: University of California Press, 1967 [1934]), pp. 234–​5. 6   Benedict Kingsbury, ‘The Concept of Compliance as a Function of Competing Conceptions of International Law’, Michigan Journal of International Law 19 (1998): 345–​72, 348. 7   Niklas Luhman, A Sociological Theory of Law, trans. Elizabeth King-​Utz and Martin Albrow, 2nd edn (Abingdon: Routledge, 2014), p. 205. 8   See Catherine Redgwell, ‘National Implementation’, in Daniel Bodansky, Jutta Brunnée, and Ellen Hey, eds, The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007), 922–​47, 925. 9  Shai Dothan, Reputation and Judicial Tactics:  A  Theory of National and International Courts (Cambridge: Cambridge University Press, 2014), pp. 9–​10. 10   Statute of the International Court of Justice (ICJ) (San Francisco, 26 June 1945, 33 UNTS 993). 5

792    sources and the enforcement of international law law enforcement, and an overview of the process of law enforcement pertaining to two sets of norms that appear to enjoy exceptional prominence in the world of law enforcement—​international judgments and resolutions of international organizations (IGOs). These surveys underlie my contention that Article 38—​the standard reference point for studying the sources of international law—​appears to provide us with limited prophetic guidance on which international law norms are likely to be invoked in practice by law-​enforcement bodies. Following these introductory remarks, Section II: The Diversity of International Law-​Enforcing Bodies describes the diversity of international law-​enforcement procedures, and Section III: Sources of Norms Used by Enforcement Bodies discusses the enforcement of international judgments and IGO resolutions. Section IV: General Trends also offers observations on relevant trends in the practice of international law-​enforcement bodies. Section V: Conclusion discusses some of the explanations for the differences between the general list of sources of international law and the sources in fact relied upon by international law-​enforcement bodies.

II.  The Diversity of International Law-​Enforcing Bodies The actual implementation of international legal norms depends to a large extent on the ability of right-​holders to resort to enforcement mechanisms in order to compel law-​violators to comply with their international obligations. However, given the scarcity of centralized enforcement bodies at the international level and, more generally, the decentralized nature of international governance structures, right-​ holders need to choose a suitable enforcement venue from a wide plurality of legal and political bodies that possess some enforcement powers. These bodies may be roughly grouped into five enforcement categories.

1. International Political Bodies Authorized to Enforce International Law Norms Some international treaties explicitly confer enforcement powers upon international bodies, which perform for the legal regime to which they belong a centralized enforcement function analogous to law-​enforcement bodies operating inside a

yuval shany   793 State. A prototype of such a political body endowed with law-​enforcement powers is the European Union (EU) Commission, which has broad authority to deal with instances of non-​compliance with EU law by EU Member States, including violations of legal norms deriving from multiple legal sources—​the EU treaties, regulations, directives and decisions issued by competent EU organs, and judgments of the Court of Justice of the European Union (CJEU).11 Another notable international body that has been implicitly invested with law-​ enforcement powers to protect broad community interests is the UN Security Council, whose decision-​making powers under Chapters 6 and 7 of the UN Charter are broad enough to include the power to enforce a variety of international law norms emanating from diverse legal sources.12 Still, even these powers of the Council are not unlimited in scope, as the exercise of Chapter 6 and 7 powers must be linked to disputes or situations the continuance of which is likely to endanger international peace and security. Sometimes, powers to enforce international law norms are narrowly defined, and certain international treaties instruct political bodies to enforce just one specific set of norms deriving from one specific source of law. One prominent example, for such an authorization, is the Council of Europe’s Council of Ministers power to enforce judgments of the European Court of Human Rights (ECtHR), which is discussed in Section III: Sources of Norms Used by Enforcement Bodies below.13

2. IGOs and NGOs Possessing Soft Enforcement Powers While some international law-​ enforcement activity is undertaken by international bodies having hard power—​that is, the power to take legally binding enforcement measures—​much of the work of international law-​enforcers, representing certain interests of the international community, involves the application of soft power—​that is, application of forms of pressure and inducements which do not have, strictly speaking, legal effects. Such pressures and inducements are 11   Treaty on the European Union, 16 October 2012, Art. 17, OJ (C 326)  13. Some other regional organizations have followed the EU model and created executive organs with comparable law-​ enforcement powers. See e.g., Art. 14 of the Additional Protocol to the Treaty of Asunción on the Institutional Structure of MERCOSUR (Ouro Preto, 17 December 1994)  , accessed 30 August 2016; Art. 33 of the Treaty of the Southern African Development Community (Kinshasa, 17 August 1992), , accessed 30 August 2016. 12   Articles 24–​5 and Arts 41–​2 of the Charter of the United Nations (San Francisco, 26 June 1945, 1 UNTS 16). 13   See Art. 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) (Rome, 4 November 1950, ETS No. 005).

794    sources and the enforcement of international law intended to encourage law-​violators to align their conduct with relevant international norms (originating from a multiplicity of sources of law), and may potentially include exhortations to law-​violators to change their conduct, calls on third parties to punish them, and public shaming of recalcitrant violators.14 Among international bodies brandishing soft enforcement powers one might mention deliberative international organizations (IGOs), such as the UN General Assembly,15 expert bodies, such as the Special Procedures of the UN Human Rights Council (HRC),16 high level officials, such as the Secretary General of the North Atlantic Treaty Organization (NATO),17 non-​governmental organizations (NGOs) such as Amnesty International,18 and sui generis bodies, such as the International Committee of the Red Cross.19

3. International Courts Invested with Power to Order Enforcement Measures International courts increasingly find themselves in recent decades tasked explicitly with enforcing international norms deriving from various sources of law, including

14   James C. Franklin, ‘Human Rights Naming and Shaming: International and Domestic Processes’, in H. Richard Friman, ed., The Politics of Leverage in International Relations:  Name, Shame, and Sanction (London: Palgrave-​Macmillan, 2015), 43–​60. 15   See e.g., UNGA Res. 63/​201 (28 January 2009) on the Permanent sovereignty of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab population in the occupied Syrian Golan over their natural resources; UNGA Res. 68/​262 (27 March 2014) on the Territorial integrity of Ukraine. 16   See e.g., HRC, Report of the Special Rapporteur on the situation of human rights in Eritrea, Sheila B.  Keetharuth, 19 June 2015, UN Doc. A/​HRC/​29/​41, paras 75–​7; Office of the High Commissioner on Human Rights Press Release, ‘ “Deeply distressing”—​UN experts condemn latest prison sentencing of rights defenders in Azerbaijan’, 20 August 2015, , accessed 20 August 2016. 17   See e.g., NATO Speeches and Transcripts:  ‘Secretary General sets out NATO’s position on Russia–​ Ukraine crisis’, 2 June 2014, http://​www.nato.int/​cps/​en/​natolive/​opinions_​110643.htm, accessed 20 August 2016. 18   See e.g., Amnesty International, ‘Deadly Force: Police Use of Lethal Force In The United States’, Report published on 18 June 2015, http://​www.amnestyusa.org/​research/​reports/​deadly-​force-​police-​ use-​of-​lethal-​force-​in-​the-​united-​states, accessed 30 August 2016; Amnesty International, ‘Europe’s Borderlands: Violations Against Refugees and Migrants in Macedonia, Serbia and Hungary’, Report Published on 6 July 2015, , accessed 20 August 2016. 19   International Committee of the Red Cross Press Release, ‘ICRC condemns the shelling of Gaza’s Al Aqsa Hospital’, 21 July 2014, , accessed 20 August 2016; International Committee of the Red Cross Press Release, ‘Ukraine: ICRC calls on all sides to respect international humanitarian law’, 23 July 2014, , accessed 20 August 2016.

yuval shany   795 their own judgments. For example, the CJEU is authorized under Articles 258–​9 of the Treaty on the Functioning of the European Union (TFEU) to conduct infringement proceedings against Member States who have failed to fulfil their obligations under EU law,20 and under Article 260, it is authorized to conduct judgment-​enforcement proceedings against Member States that failed to comply with its previous judgments and to impose a penalty upon them.21 In the same vein, following the adoption of Protocol 14 to the European Convention on Human Rights (ECHR), the ECtHR is authorized to hear cases brought against State parties who had violated their substantive human rights obligations, as well as States that have failed to comply with its judgments.22 Of course, international courts may also exercise soft power and pressurize international actors to comply with international obligations through the issuance of non-​binding advisory opinions and through language found in the obiter dicta parts of their judgments.23

4. States Enforcing International Obligations against Other States Soft and hard power designed to enforce international law norms, originating from all sources of law, may also be employed horizontally—​i.e., by one State against other States. Such exercise of enforcement power may be initiated by injured States, who may invoke the international responsibility of the law-​violators and self-​enforce the obligations due to them,24 or by States not directly affected by the violation which purport to represent the general interest of the international community in law enforcement (de facto engaging in vertical enforcement).25 Under the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts, States seeking to enforce upon other States their international law obligations may demand cessation of ongoing violations and the provision of reparation, resort to acts of retorsion, and, in some cases, countermeasures against the violating States until compliance is attained.26

  Treaty on the Functioning of the European Union, 13 Dec. 2007, OJ (C326) 1 (26.10.12) (TFEU).   See e.g., Paul Craig and Grainne De Burca, EU Law: Text, Cases and Materials, 6th edn (Oxford: Oxford University Press, 2015), pp. 454–​61. 22   Articles 33–​4, 46 (4) of the ECHR. 23   See e.g., Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 265 (‘In the view of the Court, [nuclear disarmament] remains without any doubt an objective of vital importance to the whole of the international community today’). 24   ILC, Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, in Report on the Work of Its Fifty-​Third Session (23 April–​1 June and 2 July–​10 August 2011), UN Doc. A/​56/​10, p. 294 (Art. 42). 25 26   ibid., p. 318 (Art. 48).   ibid., pp. 235 (Art. 34), 324 ff. 20 21

796    sources and the enforcement of international law

5. Enforcement by Domestic State Organs Internal State organs, such as domestic courts, parliaments, and ombudsmen, sometimes exercise their official powers to compel or pressurize other organs of the same State to comply with their State’s international law obligations, involving norms originating from different legal sources.27 In exercising their domestic soft or hard powers to further the enforcement of international law, domestic State organs can be viewed to operate as de facto organs of the international community.28 Furthermore, domestic organs sometime apply their official powers with a view to enforcing international law norms against foreign States,29 corporate entities,30 and individuals.31 *** This non-​exhaustive list of international law-​enforcement bodies and enforcement modalities is characterized by great diversity: some bodies are explicitly authorized to engage in law enforcement, whereas the authority of other bodies is implicitly derived from their other functions; some exercise soft power and some hard power. Some are the final link in the chain of implementation—​those whose application of power is directly intended to compel compliance—​and some occupy links removed from the end of the chain, and rely on complementary enforcement action by other entities. Furthermore, certain international law-​enforcement bodies may apply any norm of international law, regardless of its legal source, whereas the powers of others are limited to norms originating from a specific source and to a specific substantive field of law.   See e.g., A and others v Secretary of State for the Home Department [2004] UKHL 56; Latika Bourke, ‘Changes to Racial Discrimination Act comply with Australia’s human rights obligations, parliamentary committee finds’, Sydney Morning Herald, 11 February 2015, , accessed 20 August 2016; Report of the Ombudsman of the Czech Republic, 12 October 2011 (finding that placement in mental health institutions violates international human rights law) , accessed 20 August 2016. 28   See Georges Scelle, Règles Générales du droit de la paix, vol. 46, Collected Courses of the Hague Academy of International Law (Leiden: Brill/​Nijhoff, 1933), 327–​693, 358–​9. 29   See e.g., Simoncioni v Germany, Judgment No. 238/​2014, Gazetta Ufficiale (spec. ser.), No. 45, 29 October 2014 (Italian Constitutional Court, 22 October 2014, on World War II reparations from Germany); Parliament of Canada Press Release, ‘House of Commons Subcommittee on International Human Rights Condemns Venezuela’s Arbitrary and Illegal Detention and Imprisonment of Opposition Leader Leopoldo López, 2 December 2014, , accessed 20 August 2016. 30   See e.g., Assemblée Nationale française, ‘Proposition de loi relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre’, Quatorzième Législature Session Ordinaire de 2014–​2015, 30 March 2015, , accessed 30 August 2016; Flomo v Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1021 (7th Cir. 2011). 31   See e.g., R v Bartle and Commissioner of Police for the Metropolis and others, Ex Parte Pinochet [1999] UKHL 17; Reuters, ‘Netherlands opens war crimes investigation into airliner downing’, 21 July 2014, , accessed 20 August 2016. 27

yuval shany   797 Although the ability of international law-​enforcement bodies to compel compliance appears to depend on whether legal powers of compulsion are available to them, other variables, such as the power of political forces backing compulsion, are also very relevant. Thus, for example, although international courts have important law-​enforcement functions, as their legally binding determinations that international law had been violated exert pressure on law-​violators to comply with their legal obligations (including the legal obligation to provide effective remedies to victims of law-​violations),32 their judgments may nonetheless remain non-​complied. At the same time, non-​judicial bodies lacking in legal authority to enforce international law norms, but enjoying considerable political clout, such as the UN Secretary-​General or the United States (US) President, may be more effective than international courts in compelling law-​violators to change their conduct.33 Note that even within the world of international adjudication, in which all international courts nominally have the same res judicata powers, some courts have more clout than others and are more likely to generate compliance with their decisions.34

III.  Sources of Norms Used by Enforcement Bodies Given the great diversity in the structures, legal powers, methods of operation, and influence of international law-​enforcement bodies, it is not surprising that the sources of law they employ also vary greatly. This section discusses two specific legal sources frequently relied upon by international law-​enforcement bodies—​court judgments and IGO resolutions. Examination of the role of these two sources can  See e.g., Andrew T. Guzman, How International Law Works:  A  Rational Choice Theory (New York: Oxford University Press, 2007), pp. 52–​3. 33   See e.g., Associated Press, ‘Obama says Syria’s declared chemical weapons stockpile eliminated’, 19 August 2014, , accessed 20 August 2016. 34   See e.g., Magdalena Frolics, The Reception of International Law in the European Court of Human Rights (Oxford: Oxford University Press, 2010), pp. 72–​106. Comparable capacity to induce enforcement may also be identified in quasi-​courts, such as the human rights treaty bodies or commissions of inquiry. See e.g., Walter Kälin, ‘Universal Human Rights Bodies and International Humanitarian Law’, in Robert Kolb and Gloria Gaggioli, eds, Research Handbook on Human Rights and Humanitarian Law (Cheltenham: Edward Elgar, 2013), 441–​65; Bertrand G. Ramcharan, ‘Substantive Law Applicable’, in Bertrand G. Ramcharan, ed., International Law and Fact-​Finding in the Field of Human Rights (Leiden: Brill/​Nijhoff, 2014), 1–​16. 32

798    sources and the enforcement of international law underscore the divergence between the sources of law used in international law enforcement and the list of sources found in Article 38 of the ICJ Statute, which treats one of these sources (judgments) as subsidiary in nature, and largely ignores the other (resolutions). I then offer some general observations on trends in the work of international law-​enforcement bodies, which are based on the surveys in Section II: The Diversity of International Law-​Enforcing Bodies and section III: Sources of Norms Used by Enforcement Bodies. As described below, the exercise of soft and hard law-​enforcement powers in relation to international judgments and IGO resolutions can be found in multiple institutional settings. Arguably, international enforcement bodies are analogous in this respect to some domestic enforcement bodies, such as judgment-​execution agencies, and regulatory enforcement agencies (like tax collectors), who focus their attention on enforcing specific legal norms whose precise contents, direct applicability to the situation at hand, and operational implications have already been determined by a previous-​in-​time official decision-​maker, such as a judge or an executive agency. From a doctrinal point of view, however, there is little justification in distinguishing between the enforceability of specific legal obligations deriving from a judgment or resolution and that of other legal obligations deriving from general sources of international law, including the very international treaty or custom on which the judgment or resolution relied.35 Hence, there may be a need to consider exogenous explanations for any greater inclination to enforce judgments or resolutions, such as the quest for legitimacy of enforcement mechanisms and the functional logic of focusing enforcement resources on norms already validated and concretized by authoritative decision makers.

1. Judgment Enforcement Procedures One notable example of an international law-​enforcement mechanism focusing its enforcement powers only on judgment enforcement is the Council of Europe’s Committee of Ministers, which has been regularly employing powers pursuant to Article 46 of the ECHR with relation to judgments of the ECtHR.36 According to the Rules of the Committee, it shall examine whether the remedies indicated by the 35   See e.g., C. F. Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge: Cambridge University Press, 2005), pp. 182–​3. See also Medellin v Texas, 552 U.S. 491, 556 (2008) (Breyer J, dissenting) (‘logic suggests that a treaty provision providing for “final” and “binding” judgments that “settl[e]‌” treaty-​based disputes is self-​executing insofar as the judgment in question concerns the meaning of an underlying treaty provision that is itself self-​executing’). 36  See generally, Council of Europe—​Committee of Ministers, Supervision of the Execution of Judgments of the European Court of Human Rights: 8th Annual Report (Strasbourg, 2014), pp. 15–​23; David Harris, Michael O’Boyle, Edward Bates, and Carla Buckley, Law of the European Convention on Human Rights (Oxford: Oxford University Press, 2014), pp. 180–​99.

yuval shany   799 Court had been executed by the losing State party, and may initiate in exceptional cases infringement proceedings before the Court.37 In extreme cases, failure to comply with judgments could lead to suspension or even expulsion of a State party from the Council of Europe.38 Although the Committee focuses in its supervisory work on the remedial aspects of the enforced judgments, the process of judgment execution involves comparing action plans proposed by the losing States to the normative contents of the judgment with a view to ascertaining whether the violation, its source, underlying factual holdings, and judicial reasoning have been adequately addressed.39 Another example of a judgment-​enforcement procedure can be found under the Dispute Settlement Understanding (DSU) of the World Trade Organization (WTO).40 In effect, the DSU provides for several judgment-​enforcement procedures: the Dispute Settlement Body (DSB) has the principal responsibility for monitoring compliance with relevant panel or Appellate Body (AB) reports,41 and may authorize the suspension of concessions or obligations at the request of the prevailing Member State. This enforcement process is potentially accompanied by additional legal proceedings: Article 21.3 of the DSU provides for arbitration over the duration of implementation of the applicable ruling (or recommendation), Article 21.5 provides for panel or arbitration proceedings in disputes over whether measures taken by the losing party are consistent with the relevant WTO agreements, and Article 22.6 provides for proceedings to challenge the level of suspensions approved by the DSB or the decision-​making procedure leading thereto. The multiplicity of enforcement-​related procedures is indicative of the complicated nature of the WTO remedial system, which involves a delicate balance between legal and   Rules 6 and 11 of the Rules of the Committee of Ministers for the Supervision of the Execution of Judgments and of the Terms of Friendly Settlements (10 May 2006). 38   Article 8 of the Statute of the Council of Europe (London, 5 May 1949, ETS 1). Expulsion or suspension proceedings were initiated against Greece in 1969, but it withdrew from the Council on its own decision. Yogesh Tyagi, ‘The Denunciation of Human Rights Treaties’, British Yearbook of International Law 79 (2009): 86–​193, 158–​9. There have been attempts to suspend Russia’s membership in the Council over the second Chechen war, which did not win the support of the Committee of Ministers. Sionaidh Douglas-​Scott, ‘Europe’s Constitutional Mosaic: Human Rights in the European Legal Space—​Utopia, Dystopia, Monotopia or Polytopia’, in Neil Walker, Jo Shaw, and Stephen Tierney, eds, Europe’s Constitutional Mosaic (Oxford: Hart, 2011), 97–​136, 116. 39   See e.g., Committee of Ministers, Decision cases No. 3—​Mahmudov and Agazade group against Azerbaijan (12 June 2015), CM/​Del/​Dec(2015)1230/​3, para. 3 (‘exhorted the authorities to cooperate fully with the Committee of Ministers and to deploy all their efforts to adopt the necessary measures to eliminate the causes of the violations found by the Court’); Committee of Ministers, Decision cases No. 22—​Inçal group, Gözel and Özer group against Turkey (12 June 2015), CM/​Del/​Dec(2015)1230/​22, para. 3 (‘strongly encouraged the Turkish authorities to intensify their efforts with a view to continuing the incorporation of the case-​law of the Court fully and consistently, both in terms of assessment of the facts and reasoning’). 40   See Art. 22.6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (Dispute Settlement Understanding, DSU) (Marrakech, 15 April 1994, 1869 UNTS 401). 41   Articles 2.1 and 22.6 of the DSU. 37

800    sources and the enforcement of international law economic considerations, as well as an interplay between judicial and political enforcement bodies.42 The WTO legal norms relied upon at the enforcement stage derive from both panel and AB reports, which have identified gaps between the benefits expected under the covered agreements and the actual benefits accrued (such a gap typically emanates from a violation of the WTO agreements), as well as from the WTO agreements themselves. These norms have to be interpreted by the relevant enforcement bodies and applied in their proper procedural contexts, while respecting the minor differences among the specific mechanisms involved: Article 21.3 proceedings focus on ensuring that implementation of reports be undertaken within the shortest time possible, leaving the losing party with discretion to choose any means of implementation which are consistent with the recommendations and rulings of the DSB and with the covered agreements.43 At the same time, Article 21.5 arbitration proceedings are designed to ensure compliance with panel or AB reports and ultimately focus on the compatibility of the entire trade measures in question, including their unmodified aspects, with the covered agreements, using the reasoning employed in the report as a central interpretive benchmark.44 As for Article 22.6 proceedings, their focus is on consideration of the level of impairment or injury suffered by the prevailing party in WTO-​inconsistent situations.45 Finally, DSB surveillance meetings focus on the status report provided by losing States on the manner of implementation of panel, AB and arbitral rulings, recommendation and awards, engaging in a rather limited discussion of the background obligations of parties 42   While judicial decisions of panels and the AB are nominally subject to approval by the intergovernmental DSB, the application of negative consensus rule means that, in effect, political organs cannot override judicial decisions. See e.g., John Jackson, ‘The WTO DSU:  Misunderstandings on the Nature of Legal Obligation’, American Journal of International Law 91 (1997): 60–​4. The scope of panel and AB decisions is constrained, however, by the text of the DSU, which provides at Art. 3.2 that ‘[r]‌ecommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements’. 43   See e.g., WTO, China—​Countervailing and Anti-​Dumping Duties on Grain Oriented Flat-​Rolled Electrical Steel from the United States, Arbitration under Article 21.3(c) of the DSU, Award of the Arbitrator Claus-​Dieter Ehlermann (19 April, 2013) WT/​DS414/​12; WTO, Brazil—​Measures Affecting Imports of Retreaded Tyres, Arbitration under Article 21.3(c) of the DSU, Award of the Arbitrator Yasuhei Taniguchi (29 August 2008) WT/​DS332/​16, para. 48. 44   WTO, US—​Tuna II (Mexico), Article 21.5 Panel Report (14 April 2015) WT/​DS381/​RW, para. 7.22 (‘the overriding question for such a panel is always whether the measure found by the DSB to be incompatible with one or more obligations under the WTO Agreement has been brought into compliance so that it is no longer WTO-​inconsistent’); WTO, EC—​Bed Linen, Article 21.5 Appellate Body Report (8 April 2003) WT/​DS141/​AB/​RW, para. 79. Such a review of compatibility encompasses not only violation complaints, but also non-​violation complaints, that could result in a recommendation to introduce, modify, or remove measures entailing nullification of impairment of accrued benefits under certain WTO agreements. WTO, US—​COOL, Article 21.5 Panel Report (20 October 2014) WT/​DS384/​ RW, para. 7.663. 45  WTO, US—​Upland Cotton, Arbitration under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, Decision by the Arbitrator (31 August 2009) WT/​DS267/​ARB/​1, para. 4.77.

yuval shany   801 under the WTO agreements.46 Thus, it appears that whereas the political body—​the DSB—​mostly enforces the decisions of WTO adjudicative bodies, the adjudicative components of the system focus at times on the overarching legal agreements, at other times on the actual economic losses suffered, and yet at other times on the reports themselves and the duration of their implementation. Another interesting model for judgment enforcement is found under the ICSID Convention, where member States have undertaken to treat monetary awards issued in ICSID arbitrations as if they were judgments of their own domestic courts.47 Significantly, this legal arrangement obligates States to confer upon ICSID awards a legal status within their domestic legal systems that may far exceed the status of their other international law obligations, and which goes beyond the system for recognition of arbitral awards introduced by the 1958 New York Convention.48 Another interesting aspect of the system is that, to date, enforcement actions under Article 54 have mostly targeted assets of host States located in the territory of third States,49 resulting in the conferral upon ICSID awards of a legal effect akin in some respects to erga omnes obligations (notwithstanding the fact that international awards do not have a stare decisis effect).50 Finally, one may mention in this context the judgment-​enforcement power of the Security Council under Article 94 of the Charter, which authorizes the Council to ‘make recommendations or decide upon measures to be taken to give effect to the [ICJ] judgment’, if it was not complied with.51 Here again, one may note the preferential treatment afforded to legal norms originating in ICJ judgments—​particularly their operative parts—​over more general norms of international law and judgments of other international courts and tribunals, with regard to which the Council has not been entrusted with specific enforcement powers. This normative preference may stem from the unique role that the drafters of the Charter assigned to the ICJ   See e.g., WTO DSB, Minutes of Meeting of 25 March 2015, WT/​DSB/​M/​359.   Article 54 (1) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) (Washington, 18 March 1965, 575 UNTS 159). 48   According to the New  York Convention, State parties retain the power not to enforce arbitral awards under certain circumstances. See Art. 5 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) (New York, 10 June 1958, 330 UNTS 38). No such power exists under the 1965 ICSID Convention. 49   Christoph Schreuer, The ICSID Convention:  A  Commentary, 2nd edn (Cambridge:  Cambridge University Press, 2009), pp. 1124–​5. 50   Article 59 of the ICJ Statute; Art. 46 (1) of the ECHR. 51   Karin Oellers-​Frahm, ‘Article 94 UN Charter’, in Andreas Zimmerman, Karin Oellers-​Frahm, Christian Tomuschat, and Christian J. Tams, eds, The Statute of the International Court of Justice, 2nd edn (Oxford: Oxford University Press, 2012), 186–​204, 199. Interestingly, the Council of the League of Nations had a broader mandate, which included the power to ‘propose what steps should be taken to give effect’ to any arbitration award or decision of judicial settlement, and the possibility of being seized at the request of any member of the League. The Council was seized once with respect to an arbitral award (Forests of Central Rhodope (Greece v Bulgaria) (merits) III RIAA 1405 (1933)). See Oellers-​Frahm, ‘Article 94’, p. 188. 46 47

802    sources and the enforcement of international law in the maintenance and restoration of international peace and security (although the Council’s Article 94 powers are not reserved for the enforcement of judgments rendered in disputes that threaten international peace and security),52 and from the related need to maintain the Court’s credibility. The enforceability of ICJ judgments under the Charter remains, however, of academic interest only, since the Council has never exercised its Article 94 powers.53 At all events, it is useful to note that the power of the Security Council to enforce ICJ decisions is not exclusive, and other actors may also take relevant enforcement action vis-​à-​vis them. Hence, for example, the UN General Assembly decided in 2004 to take practical measures to give effect to the advisory opinion by the ICJ on the Wall in Occupied Palestinian Territories,54 and the US President instructed State courts in 2005 to give effect to the ICJ judgment in Avena.55

2. Resolutions of International Organizations Another important source of international norms relied upon by international law-​ enforcement bodies are IGO resolutions. As with judgments, resolutions typically involve the interpretation and application of general norms of international law to a concrete set of circumstances. Furthermore, some international resolutions are endowed, like judgments, with legally binding character—​either pursuant to an explicit authorization found in an international treaty, or through implicit acceptance by parties to an international treaty of the relevant treaty organs’ power to fill existing gaps therein.56 Thus, for example, the implementation of binding Security   See e.g., Art. 36 (3) of the UN Charter.   The Security Council was requested to exercise its Art. 94 powers with respect to a final judgment only once, regarding the final judgment in the Military and Paramilitary Activities in and against Nicaragua case. The request was denied. Chester Brown, ‘Article 59’, in Zimmermann et al., eds, The Statute of the International Court of Justice, 1416–​46, 1443. The Security Council may also enforce international judgments through invocation of its broad powers under Chapters 6 and 7 of the Charter. However, in doing so it may blend judgment enforcement with other policies. See e.g., Resolution 461 (1979), which addressed the Tehran hostage crisis, and invoked as reasons for its urgent call upon the government of Iran to immediately release the hostages the violation of international law, the grave consequences for international peace and security, and the provisional measures ordered by the ICJ. See UNSC Res. 461 (31 December 1979). However, it has been suggested in this regard that when the Council exercises powers under Art. 94, it may not modify the operative parts of the judgment. See Oellers-​Frahm, ‘Article 94’, p. 199. 54   See UNGA Res. ES-​10/​15 (2 August 2004), para. 4 (the resolution requests the Secretary General to establish a register of damages caused by the Israeli Separation Wall). 55   See White House, Memorandum for The Attorney General on Compliance with the Decision of the International Court of Justice in Avena (28 February 2005) , accessed 30 August 2016. The memorandum was deemed by the Supreme Court to be unconstitutional for violating the separation of powers principle; see Medellin v Texas, 552 U.S. 491, 532 (2008). 56   See e.g., Joel P. Trachtman, The Economic Structure of International Law (Cambridge: Harvard University Press, 2009), p. 168. 52 53

yuval shany   803 Council resolutions is sometimes monitored by subsidiary organs such as Sanctions Committees,57 which may take appropriate follow-​up measures or refer matters back to the Council.58 In exercising its enforcement powers, the Security Council may also enforce resolutions adopted by other international organizations, such as the International Atomic Energy Agency,59 or the Financial Action Task Force on Money Laundering (FATF).60 The EU represents another institutional environment in which extensive enforcement of international resolutions takes place on a regular basis:  the European Commission monitors the implementation of EU resolutions, decisions, and directives, and may issue, in appropriate circumstances, specific demands for compliance, or introduce enforcement action before the CJEU.61 In specific sub-​fields of EU law, other EU organs may become involved in the enforcement of resolutions. For example, the European Central Bank may impose fines and penalties on undertakings that fail to comply with its regulations and decisions,62 and the EU Council may require new deposits or impose fines on Member States that fail to comply with its decisions on measures necessary to achieve deficit reduction.63 IGO resolutions pertaining to international economic law are also enforced by the World Bank group, which compels compliance with loan conditionalities reflecting Bank policies, by withholding funds from ongoing development projects, or threatening not to provide future loans.64 At other times, the World Bank may enforce debarment decisions adopted by other international financial institutions, which are directed against individuals and entities engaged in corrupt practices and policies.65 Pursuant to such debarment decisions (which also apply to the Bank’s own anti-​corruption guidelines) potential loan seekers may become ineligible to

  UNSC Res. 1737 (23 December 2006), para. 18.   See e.g., UNSC Res. 1747 (24 March 2007), para. 4; UNSC Res. 1803 (3 March 2008), para. 7. 59   See e.g., UNSC Res. 1803 (3 March 2008), para. 1.  The International Atomic Energy Agency’s power to refer matters to the Security Council is found in Art. XII (c) of the Statute of the International Atomic Energy Agency (New York, 23 October 1956, 276 UNTS 3). 60   See e.g., UNSC Res. 1617 (29 July 2005), para. 7. 61   Article 258 of the TFEU; see also Stine Andersen, The Enforcement of EU Law: The Role of the European Commission (Oxford: Oxford University Press, 2012), pp. 13–​17. 62   Article 132 (3) of the TFEU. 63   Article 126 (11) of the TFEU. The Council may also ‘invite the European Investment Bank to reconsider its lending policy towards the Member State concerned’. 64   Jeffery D. Sachs, ‘Conditionality, Debt Relief, and the Developing Country Debt Crisis’, in Jeffrey D. Sachs, Developing Country Debt and the World Economy (Chicago: The University of Chicago Press, 1991), 275–​84, 277–​8; Valerie Sperling, The Globalization of Accountability (Cambridge:  Cambridge University Press, 2009), pp. 73–​6. 65   World Bank Sanctions Procedures as adopted by the World Bank as of January 1, 2011, para. 9. 01, , accessed 30 August 2016; Agreement for Mutual Enforcement of Debarment Decisions, 9 April 2010, , accessed 30 August 2016. 57

58

804    sources and the enforcement of international law receive bank loans, subcontracts, or loan proceeds for a definite period of time, or indefinitely. IGO resolution can also be enforced sometimes by domestic enforcement bodies. For example, in Al-​Jedda, the United Kingdom (UK) House of Lords gave effect to UN Security Council Resolution 1546 to block a civil claim under the UK Human Rights Act,66 and the New Zealand Trade in Endangered Species Act 1989 authorizes the domestic executive to incorporate into domestic law the appendices to the Convention on International Trade in Endangered Species (CITES), as amended from time to time by the Conference of the Parties.67 Note that the enforcement of IGO resolutions may take place even when such resolutions lack a legally binding character under international law, and are labelled as mere recommendations, best practices, codes and standards of conducts, and other soft law designations. In such cases, enforcement efforts may rely on informal sanctions, such as public shaming, and on acts of retorsion. Thus, for example, the UN General Assembly often expresses ‘grave concern’ or ‘condemnation’ for failures to comply with its past resolutions, notwithstanding their non-​binding nature,68 and UN human rights treaty bodies often urge States to comply with norms of a recommendatory nature, including their own concluding observations, concluding observations issued by other treaty bodies, resolutions of the HRC, and recommendations made by the Council’s special rapporteurs.69 In the field of international economic law, the International Monetary Fund regularly publishes reports on the observance of standards and codes (ROSC), reviewing State practice in twelve areas of financial policy in which soft international standards exist,70 and producing information which can then be relied upon by the private sector and rating agencies. Similarly, the intergovernmental FATF conducts ongoing review of the implementation of its recommendations on anti-​money laundering and combatting the financing of terrorism (AML/​CFT)

66   R (on the application of Al-​Jedda) v Secretary of State for Defence [2008] 1 AC 332, ILDC 832 (UK 2007), para. 112. 67   Trade in Endangered Species Act 1989, Public Act No. 18, assented on 28 April 1989, Section 54. The Act is to be enforced by special endangered species custom officers, by the police, and by the Conservation Ministry. See also Norwegian Ministry of the Environment, Norwegian Implementation Plan for The Stockholm Convention on Persistent Organic Pollutants (POPs), 22 June 2006,