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EJIL Editors’ Choice of Books 2015: Jean d’Aspremont

Published on February 24, 2016        Author: 

For all of those scholars cultivating a generalist expertise of a topic, the contents of each year’s readings can vary dramatically. For them, looking back at such readings can prove very illuminating as it can lay bare huge fluctuations in the literary and scholarly sources that serve as inspiration. In contrast to the very doctrinal works I read and reported on last year, my readings of the last 12 months have been primarily devoted to theoretical materials meant to feed into my work on the structure of legal argumentation as well as the professionalization of international law. This may explain why none of the books I list here qualifies as international legal scholarship properly so-called. Yet, in the light of the insights I gained from them, I have come to consider these books as ‘must reads’ for any generalist international lawyer interested in looking beyond the mere mechanical deployment of the formal modes of legal reasoning imposed by the discipline. These also are books that are one click away for international lawyers in wealthy parts of the world as they are published by mainstream publishers and available in most online bookstores.

Before sketching out their content, an observation is warranted on the extent to which not only the selection of our readings but also reading itself is prejudiced by the works and the projects we have in the making. What we make of what we read is very much contingent on what we expect from such materials and even more on what we hope to find therein. In this sense, when we read for scholarly purposes, we turn ourselves into hungry hunters with some pre-reflective preferences or expectations about the type of meat we want to bring home – and, thus, the type of insights we want to present in our own scholarship. The risk is thus that our prey ends up being embellished or corrupted by those pre-reflective preferences or expectations. This is why our reading is, to a large extent, performative as it constitutes the insights we gather from the materials from which we draw inspiration. This very elementary observation explains why, for each of the books mentioned below, I take pains to say a few words about my pre-reflective preferences at the moment of reading – that is, the context in which the reading was done. It may explain why colleagues, in a different context and in relation to different scholarly projects, may have made something radically different of these texts. It should finally be highlighted that my listing of the following books does not entail any value judgment about the intrinsic merit of the theses defended therein, let alone their direct transposability to international legal debates. My choices for this year should more simply be read as refreshing calls to shed some common assumptions found in international legal scholarship. Read the rest of this entry…

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Managing Change in International Law and the Dream of the Managerialist International Lawyer

Published on September 25, 2015        Author: 

This post is a reaction to an ESIL Reflection written by Ramses Wessel and Monika Ambrus and entitled Between Pragmatism and Predictability: Temporariness in International Law. Their piece originates in an impressive symposium on the topic that has been published in the Netherlands Yearbook of International Law (see here)

1. Thinking of international law in managerialist terms

The 19th century idealist-intellectual international lawyer was murdered by his doctrinal-formalist counterpart who rose to prominence at the beginning of the 20th century. It did not come as a surprise that the doctrinal-formalist would also soon succumb, not only to his own weight and self-confidence, but also to the blows of the next hegemon, i.e. the managerialist international lawyer who thinks that international lawyers managing the world can no longer afford overly formal and sophisticated structures of argumentation. Interestingly, the murder of the doctrinal-formalist international lawyer by the managerialist international lawyer was condoned by his peers who had grown averse to the false necessities of doctrinal constructions and formal modes of legal reasoning. This is why the managerialist international lawyer was quickly welcomed and celebrated as the messianic saviour of a profession that had ceased to hope in its ability to make demands on the world.

The murder of the doctrinal-formalist international lawyer by the managerialist international lawyer is however not the end of the story of 20th century international legal thought. Indeed, the night after the opulent celebration of his conquest, the managerialist international lawyer had a dream. He dreamed that he would not only manage the world through international law but also the time of that world. In his dream, managing time also meant managing change. And managing change required self-reactive legal institutions and modes of reasoning to allow his managerial project to be carried out whatever happens outside his palace. Read the rest of this entry…

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International Law’s Empirically Generated Justice: Natural Law Theory Reinvented

Published on June 2, 2015        Author: 

The weight of any argument or theory that is empirically grounded is unparalleled. In contemporary legal discourses, no argument or theory fares better than an empirical one, that is when its foundations can be validated by facts, practices, and existing institutional arrangements – which are, on that occasion, considered self-sustaining. This is what is called empiricism. International lawyers have long understood the argumentative convenience of empiricism, which has accordingly been thriving in contemporary international legal thought. Only international lawyers amenable to the natural law tradition have continued to prefer to ground legal argumentation in normative and theoretical postulates and have played down the foundational role of facts, practices, and existing institutional arrangements which, in their view, cannot be self-sustaining. It is accordingly no surprise that the resilient debates between mainstream empiricists and moralists have been revolving around the validating role of these facts, practices and institutional arrangements.

This dichotomous image of the structure of international legal argumentation is challenged by The Thin Justice of International Law (hereafter TJIL) written by Professor Steven Ratner. Indeed, in this book, he offers us an elegant refinement of the natural law tradition in international law by seeking to bridge the abovementioned divide between empiricists and moralists in international legal thought. It will however be argued in the following paragraphs that the most innovative aspect of TJIL does not lie with the stylish blend of empiricism and morality it relies on but rather with the epistemic union between international lawyers and moral philosophers which it calls for.

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Editor’s Book Choices: Jean d’Aspremont

Published on December 24, 2014        Author: 

Looking back at one’s readings over the last 12 months is a rather humbling exercise. We, international legal scholars, are supposed to be reading all the time, at least during these moments miraculously rescued from teaching, management and administration. In practice, even in these precious reading and reflection periods we do not properly read. Too often we skim rather than read. Too often we zero in on some carefully selected chapters or sections of books and form our opinions on the basis of rather limited samples. Too often we navigate books according to our research agenda (after having picked them in a similar way). The main explanation for this perennial reading attitude is that we, international legal scholars, read functionally, i.e. with a specific argument or project in mind. Albeit conducive to short-term efficiency and productivity, this functionalist approach to reading is obviously regrettable. Indeed, it rarely allows us to let our thoughts dawdle in the imaginary space created by the thoughts of others. But this is not the saddest part of the story. Running from one deadline to the other, we, international legal scholars, may even come to forget what we have read and only remember the argument or the project that our readings served. This is why looking back at one’s past year’s reading can make one feel like a marathoner who, on the finishing line, relishes his achievement but who, out of breath, is completely oblivious about the landscape that unfolded during the race. It is against the backdrop of such functional reading patterns of present day academia and the correlative oblivion that I let my choice be guided by three memorable traits or mindsets which I ascribe to some of the authors whose books I read in 2014: modesty, courage and inquisitiveness. It is the memory of these distinct traits or mindsets that revives my recollection of three specific books which I read thoroughly during the last 12 months. The following choice is certainly not meant as a personal charts or quality ranking. These three books are simply three works which did not leave me indifferent. That a book creates a feeling or an emotion with its reader is, in my view, a good sign. It is maybe the best that a book can ever achieve and indifference is probably the most tragic fate for a book, let alone a scholarly book.

Modesty: James Crawford’s State Responsibility – The General Part was published in 2013 but it took me until mid-2014 to seriously read it. It reads like a “synthesis” of the author’s past accounts of the conceptual and functional variations of the law of responsibility. This historical exposition is shrewdly constructed as to vindicate the author’s own vision of the doctrine in the framework of the International Law Commission’s work on State Responsibility which is in turn presented as a “modern synthesis” in which all the visions of the old Masters have coalesced. Read the rest of this entry…

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Democracy and International Law according to Russell Buchan: Prescribing under the Guise of Explaining?

Published on November 17, 2014        Author: 

Russell Buchan’s Lieber Prize-winning book entitled International Law and the Construction of the Liberal Peace (hereafter The Construction of the Liberal Peace) rests on a courageous enterprise. Indeed, it takes a lot of courage, especially given the dominant cynical mindset to which many international lawyers have succumbed, to seek to vindicate the democratic peace theory and, with it, the democratic legitimacy thesis. Buchan’s The Construction of the Liberal Peace also stands out for being elegantly written, aesthetically designed and conceptually strong as well as for denoting an impressive knowledge of international law and international relations theory.

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Customary International Law as a Dance Floor: Part II

Published on April 15, 2014        Author: 

The first part of this blog post commended the self-restraint of the ILC Special Rapporteur on the identification of customary international law. It simultaneously argued that the work of the ILC, somewhat paradoxically, laid bare a formidable emancipatory fervour at play outside the Palais des Nations. It is as if the intellectual prison of custom was gradually being turned into a large dance floor where (almost) everything goes. The following observations substantiate that claim and shed light on some of the consequences of this ongoing revelling.

Hunting (and finding) practice everywhere

It has long been accepted that the myth of induction in the theory of customary international law was more difficult to uphold in relation to opinio juris. This is why the subjective element has always been the object of the most severe criticisms or reservations. Yet, international legal scholars have started to realise that the myth of induction is not less difficult to vindicate in connection to the objective element, i.e. practice. As the Nicaragua decision famously taught us, how can one possibly ascertain the unascertainable, that is an intangible practice of abstention? Since the great majority of rules of international law are of a prohibitive character, the establishment of customary international law very often requires a speculative venture into nothingness. Confronted with this overdue realisation that practice – especially with respect to prohibitive rules – was not more easily captured inductively than opinio juris, international lawyers have been forced to resort to all new sorts of nets and traps to hunt and capture practice where there was none.

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Customary International Law as a Dance Floor: Part I

Published on April 14, 2014        Author: 

International lawyers’ thirst for argumentative freedom seems unquenchable. Nowhere is this more conspicuous than in the debate unfolding around the current work of the International Law Commission (hereafter ILC) on the identification of customary international law. Indeed, whilst the ILC has espoused a rather self-restrained approach so far, its study on the identification of customary international law has laid bare the prodigious emancipatory fervour at work outside the Palais des Nations. Particularly remarkable is the widespread presupposition that, in order to allow customary international law to serve the various agendas of ambitious 21st century international lawyers, one can simply toss out some of the elementary constraints around which the 20th century modern theory of customary international law had been shaped.

As this short note will argue, the emancipation from the traditional theory of customary international law at play in international legal scholarship, and unveiled by the current work of the ILC, is perplexing. This is certainly not because the traditional and modern theory of customary law should be redeemed. The inconsistency and deceitfulness of customary international law have long been proven. It is even astounding that such a frail gospel has been able to survive for so long. What is perplexing is that international lawyers may currently be replacing the duplicitous prison of customary international law with a dance floor where (almost) anything goes while still believing that this uncomplicated discourse-production technique can serve all their – sometimes extravagant – ambitions. It is contended in the following observations that this argumentative freedom is not only bound to be short-lived but may also end up depriving international lawyers of what has so far been a surprisingly useful discursive technique to create authority and make demands of the world.

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Objectivism and Managerialism in the Law of Statehood: the Tradition Renewed by Vidmar’s Democratic Statehood

Published on August 8, 2013        Author: 

Jean d’Aspremont is Professor of Public International Law at the University of Manchester

The law of statehood is a regulatory, explanatory and epistemological project. The law of statehood is an explanatory project in the sense that it seeks to make sense of the intricate and volatile practice of state creation. It is a regulatory and managerial project in the sense that it seeks to order the intricate and volatile practice of state creation. It is an epistemological project in the sense that it manifests the quest by one group of professional for ownership of the knowledge on the intricate and volatile practice of state creation. The scholarship on the law of statehood is informed by such a three-fold agenda. This multilayered agenda, in turn, determines the modes of apprehension designed by international lawyers to allow such a volatile phenomenon to penetrate the international legal system.

It is against this backdrop that the following observations will seek to situate the impressive and refined work of Jure Vidmar, whose subtle insights on the matter had been trickling in the literature these last years through an impressive number of articles. They now receive their full thrust with the publication of his first monograph entitled Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (Hart, 2013).

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The Ruins of the Sources Theory and the Garden of Eden: A Rejoinder to Carlos Esposito and Philip Allott

Published on December 14, 2012        Author: 

I feel indebted to Carlos Esposito and Philip Allott who have taken so much of their – precious – time to engage with the argument developed in my book Formalism and the Sources of International Law. In a professional community where constant solicitation and correlative overcommitment have become pathological, taking pains to engage with and constructively criticize peers’ works amounts to a manifestation of respect which, coming from such highly esteemed figures, is greatly flattering. I simultaneously rejoice at the fact that their – deliciously phrased and doled out – criticisms touch on the very points which, in my view, have always deserved to be debated across the interpretative community of international law. In this brief rejoinder, I shall limit myself to mention a few of them and sketch out my thoughts on the matter.

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Formalism and the Sources of International Law: An Introduction

Published on December 11, 2012        Author: 

Prolegomena: A paradox

At the origin of the inquiry found in the book under discussion (whose introduction is available for download here) lies a paradox. This paradox can be spelled out as follows. Nothing has been more ontologically threatening for international law – and for the professional community organized around it – than the rampant contemporary post-ontological mindset of the international legal scholarship. The (self-proclaimed) post-ontological era – and the correlative broadening of the substantive agenda of research that has accompanied it – have aggravated the impoverishment of our state of reflection about the theory of sources.

Indeed, having become too busy reflecting on legitimacy, accountability, participation, transparency or newly obsessed by epistemological and sociological introspection, international lawyers – and especially international legal scholars – have come to severely neglect the thinking about the most elementary tool of cognition of their object of study: the theory of sources. Said differently, the post-ontological era of international law has witnessed a move away from (theoretical reflections about) the theory of sources. This move away from the theory of sources has led international legal scholars to demote the theory of sources to a debate of secondary importance – let alone an unnecessary constraining straightjacket – and, as a result, output, effect, impact of norms or even compliance have been elevated in a central defining characteristic of international law.

The reasons thereof have not always been a dogmatic repulsion towards the theory of sources. The agenda behind such a move (this is what I have called elsewhere the ‘politics of deformalization’) includes the perceived need to expand or reform international law, the urge to buoy its legitimacy or the accountability of its main power-wielding actors, a religious attachment to pluralism, or the necessity to allow greater argumentative creativity – to name only a few. Interestingly, such a growing disinterest for the theory of sources has also been witnessed in international case-law where judges seem to take less and less pains to explain how (and according to which indicators) they identify and ascertain the rules they apply.

The agenda behind the theory of sources

In contrast to such a postontological conceptual nonchalance, this book makes a plea for preserving the central cognitive role of the theory of sources – albeit in a reformed configuration. The reasons for advocating the preservation of a theory of sources are multifold.

First, the book, in a functionally agnostic fashion, submits that, whatever function is assigned to it – whether freedom-restricting, behavior-conducting, progress-enhancing, society-structuring, hope-conveying or simply intellect-stimulating – international law needs to be formally ascertained and cognized to a reasonable extent. The book also takes the centrality of the theory of sources as a precondition for the critique of international law. Indeed, it argues that a (reformed) theory of sources also makes possible the critique of law – and thus its reform.

Eventually, the books argues that a theory of sources is an indispensible condition for the existence of a common vocabulary without which there cannot be any interpretative community of international law. All in all, the book takes the view that, short of a theory of sources able to provide sufficient ascertaining indicators, international law is at best a platform for discursive practices and the profession organized around it a cacophonic debating henhouse.

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