Editor’s Note: This is another repeat post of an old favourite. The piece was first posted in December 2010. Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge.
Once upon a time/Es war einmal/Il y avait une fois/C’era una volta, way back at the end of the Cold War, the Comptroller-General for the Complete System was performing his quarterly ‘stress test’ on the normative integrity of the international legal system when he detected a gap. At first he did not believe it. He had been taught, and throughout his professional life had encountered nothing which caused him to doubt, that such a thing was impossible. The combination of the Lotus principle and the residual negative always provided an answer in extremis. But the gap he was dealing with here was not that sort of gap. Nor was it, as most supposed gaps are, merely a question of international law the answer to which is not to the interlocutor’s liking. Here was a real gap, and an existential gap at that. The Comptroller-General for the Complete System was perplexed. I need some help with this, he thought.
Within a week, news of the gap was the subject of fevered speculation across the globe in faculties of law, ministries of foreign affairs, intergovernmental and non-governmental organisations and the boardrooms of multinational corporations. From the ends of the earth, international lawyers—academics and practitioners, positivists and naturalists, doctrinal exegetes and critical theorists—gathered to discuss the unnerving development.
The first to offer an opinion were the legal advisors to the US Department of State and the multinational corporations—respectively, one should add, although it was sometimes hard to tell the difference. To them the source and nature of the gap was obvious: it was the hole left in the international legal order by the conceptual bankruptcy of statism, a space rich in possibilities which individual and market freedoms were expanding to fill. Having no need to hear the opinions of others, and time being money, these legal advisors then went back, perhaps not quite respectively, to drafting bilateral investment treaties. The parole passed from the legal advisers to the various European governments, who characterised the gap as the hole left in the international legal order by the welcome collapse of anti-liberal humanist tyranny, a space rich in possibilities for the construction of a new Europe. A spontaneous chorus of Beethoven’s Ninth rang out from Lon- … well, Paris to Berlin. (In Warsaw, Prague and Budapest they were too busy buying colour TVs, while in Sofia, Minsk and Kiev they were standing around waiting for Beethoven’s rehabilitation.)
Next to speak were the theorists. Some of these read the gap as the silhouette of the Other. A few of the women present, whom everyone had ignored until now, discerned in the shape of the gap an unmistakable phallus. Queer theorists cheekily took to calling the gap the ‘glory hole’. For his part, a kindly English gentleman, who, people whispered scarcely credibly, had worked for many years for the Foreign Office, divined in the gap the first breach in Vattelian international law opened up by a new self-constituting society of all societies. A bespectacled, boyish Finn thought the gap looked kitsch.
The international environmental lawyers showed a sense of humour by likening the gap to the plug-hole down which had disappeared the emerging right to life of whales. As the decade wore on, waggish international legal observers of western foreign policy began to liken the gap instead to the plug-hole down which had disappeared the emerging right to democratic governance. By the turn of the millennium, an Australian professor, one of several thousand present, was remarking jokingly upon the uncanny similarity between the hole and the receptacle into which the International Law Commission had deposited the concept of the criminal responsibility of states, pulling the chain afterwards.
But none of these accounts captured the true character of the gap, which, as the Comptroller-General for the Complete System had rightly apprehended, was more essential. Consternation increased. The kindly English gentleman tried to sooth raw nerves by reading to everyone from his latest novel, but this only deepened the air of anxious bewilderment. Things began to get fractious. The hole was getting a name for itself, but no-one could agree on what that name was.
The matter was eventually referred to the United Nations General Assembly, which invited the aforementioned ILC to begin work on the topic of ‘Gaps and Silences in the Law’. Read the rest of this entry…