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.
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.
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.
Objectivism and Managerialism in the Law of Statehood: the Tradition Renewed by Vidmar’s Democratic Statehood
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).
The Ruins of the Sources Theory and the Garden of Eden: A Rejoinder to Carlos Esposito and Philip Allott
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.
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.
On the occasion of my very first post on EJIL:Talk! – at the invitation of its editors – on the current duality of government in Côte d’Ivoire (see here), I have deemed it necessary to post a separate note on the “art” of legal blogging, for this topic has hardly been discussed on this experts’ blog in its first two years of existence (compare. with the debate held by the on-line platform of the Yale Law Journal). Moreover, the criticisms of which I have been the object for an earlier on-line opinion have also convinced me that some circles of our professional community have not yet completely assimilated the idea of blogging on issues of international law. While blogging on current (legal) developments undoubtedly remains a hazardous exercise which one should engage with the greatest care (if not with the greatest self-restraint), I would like to shed light on some of the virtues of blogging as well as the common misunderstandings at the heart of the objections still raised against legal blogging. I hope that these – inevitably cursory – considerations – which exclusively zero in on experts’ blogging – will help pursuing a healthy debate about the pro’s and con’s of bloggership.
1. Legal blogging and its detractors
In some strands of the international legal scholarship, many still resent blogging – and hence tend to despise those who engage in blogging – for two main reasons. First, legal blogging is scorned for the superficiality of the analyses and the half-baked ideas it disseminates. Second, it is berated for disinhibiting scholars and bolstering their disregard of the – unwritten – codes and hierarchies of the profession.
These two objections are surely not ill-founded. Indeed, posts on legal blogs often are quickly written notes on current legal developments without much critical distance and replete with unfinished thoughts. Likewise, posts on legal blogs allow direct confrontations between legal scholars at odds with the traditional non-confrontational debates conducted by the intermediary of international law journals. Yet, these criticisms rest on a misunderstanding of what legal blogging is all about and, more fundamentally, a negation of the cultural evolution witnessed in the international legal scholarship over the last two decades. Read the rest of this entry…
Dr. Jean d’Aspremont is Associate Professor of International Law and Senior Research Fellow of the Amsterdam Center for International Law at the University of Amsterdam. He is also Guest Professor of International Humanitarian Law at the University of Louvain in Belgium and Senior Editor of the Leiden Journal of International Law.
The current distressful situation in Côte d’Ivoire is pitting two warring factions against one another, each of them claiming to be the legitimate authority entitled to act and speak on behalf of the State. Such a duality of government is, regrettably, far from being unprecedented and raises some legal issues which are not unknown to international lawyers.
A sketch of the facts
The eligibility of Alassane Ouattara – President of the Rally of the Republicans (RDR) whose popular support lies mainly in the north of the country, former Prime Minister of Côte d’Ivoire and a former IMF managing director – to run for office has been a bone of contention in the political scene in Côte d’Ivoire for more than a decade. Indeed, several key political figures began, in the mid-nineties, to make use of the loaded argument of ‘Ivoirité’, especially following the 1995 electoral code barring candidates from taking part in the national elections if either of their parents were of a foreign nationality and if they had not lived in Côte d’Ivoire for the preceding five years – a stipulation which had been perceived by many as meant to exclude the popular Ouattara who was said to be of Burkinabé (i.e. Burkina Faso) origin. After a coup d’Etat in 1999, a new Constitution in 2000, a civil war between a government-controlled south and a rebel-held north, a painstaking peace process between the insurgency led by Guillaume Soro and Laurent Gbagbo in power in Abidjan, a unity government and several postponements of the last round of elections in which Ouattara had eventually been allowed to participate, the severe tensions that had beset the country over the last decade came again to a head in the aftermath of the 28 November second round of the presidential elections. Indeed, on 2 December 2010, the Independent Electoral Commission (hereafter CEI) announced the provisional results according to which Ouattara had won the election with 54% of the vote. Gbagbo claimed that the elections had been rigged by the former rebels and the results were invalidated by the President of the Constitutional Council which declared Gbagbo the winner.
Recognition of Ouattara as the legitimate head of Côte d’Ivoire
The international community was very prompt to endorse the position of the CEI and recognize Ouattara as the legitimate leader of Côte d’Ivoire. Although many States still profess that they do not officially recognize governments, it has long been demonstrated that such a political claim has never entailed an actual abandonment of the practice of recognition of governments but rather a toning down of the solemnity with which new governments are recognized. Situations of duality of government, as that in Côte d’Ivoire, makes this claim even less sustainable, for States around the world, and especially those having strong relations with – and interest in – the country, inevitably need to determine whom they will speak to and thus who they see as being in charge. Read the rest of this entry…