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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