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Comments on Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules

Published on December 12, 2012        Author: 

Jean d’Aspremont’s book evokes subliminally two recurring nightmares – one social, one intellectual. Socially, it reminds us of the failure of law to secure its proper place in international society. Intellectually, it reminds us of the part played by the modern university in the disempowering of the human mind.

The conventions of monograph-writing require that the author survey the territory in which he or she intends to plant something new – employed, as John Locke modestly said of himself, ‘as an under-labourer in clearing the ground a little, and removing some of the rubbish that lies in the way of knowledge’.  In fact, as d’Aspremont himself notes, most self-conscious intellectual innovators, before the advent of the modern university, did not devote much explicit effort to disposing of the writings of their predecessors.  Locke himself certainly did not do so, either in the Essay or the Two Treatises.

In the present case, ‘clearing the ground a little’ produces a mountain of footnotes listing hundreds of writings expressing, and endlessly recycling, every conceivable view, and many inconceivable views, about the essence of International Law, or its lack of an essence. It requires the author to sift through the output of an industrial-scale intellectual effort, to sort out the countless academic sects (many of them blessed with brand-names ending in -ism), and to locate them in relation to each other.  And it requires him to perform the impossible – but academically expected – task of making sober judgments about their relative merits.

And, all the while, the wicked world goes on its merry way to ruin. Why would anyone choose to write creatively and intelligently about the philosophy of International Law? They are unlikely to be heard by those who exercise international public power – politicians, diplomats, civil servants, intergovernmental officials, international judges and arbitrators, legal practitioners – the international ruling class, a self-satisfied and self-regarding conspiracy, many of whose members have the crudest ideas about the nature of law, and many of whose members relentlessly abuse public power, national and international.

It is important to understand two things.  Holders of public power are the product of ideas, ideas that they did not invent.  Holders of public power use other people’s ideas as instruments of power.  If a more or less abstract idea might be useful to them, they will appropriate it – ideas of religion or philosophy or morality or political theory or natural science or human psychology – not only to justify their possession of power but also to exercise that power more efficiently. Words are power.  Words are weapons.  The power of the powerful includes the power to incorporate ideas into the language of power.

I won’t comment in detail on the intricacies of d’Aspremont’s exposition.  But I must say that I would differ from some of his accounts and judgments of legal philosophies and theoretical positions with which I am myself familiar.   (I’m sorry that he devotes respectful attention to Herbert Hart and Ludwig Wittgenstein – both of them being of minimal continuing intellectual significance.)   For me, the book is important at a more general level.   The important question is – what general lessons can we learn from d’Aspremont’s heroic work of synthesis and analysis?

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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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Discussion of Jean d’Aspremont’s Formalism and the Sources of International Law

Published on December 11, 2012        Author: 

This week we will be hosting a discussion of Jean d’Aspremont’s recent book Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules, published by OUP in 2011. Jean is a prolific scholar and currently Associate Professor of International Law at the University of Amsterdam. He will be taking up a chair of public international law at the University of Manchester in January 2013, and has also blogged with us in the past. We will start off by an introductory post by Jean himself, and then proceed with comments by Philip Allott (Cambridge) and Carlos Esposito (UA de Madrid), concluding with the author’s response. The book being discussed was previously briefly noted in the EJIL by Monica Garcia-Salmones.

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Nicaragua v Columbia: the curious question of the Commission on the Limits of the Continental Shelf

Published on December 10, 2012        Author: 

Continental shelf questions have a reputation for being arcane and technical, but an interesting point with implications for offshore resource disputes arose in last month’s ICJ judgement in Territorial and Maritime Dispute (Nicaragua v. Colombia).

First, a certain amount of (potentially dull) technical background needs to be set out, which I’ll simplify as much as possible.

Notably, Nicaragua is a party to the UN Convention on the Law of the Sea (UNCLOS) and Colombia is not. UNCLOS in Article 76(1) states a general principle:

The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to [an automatic] distance of 200 nautical miles from [its] baselines.

This 200 nm or “the outer edge of the continental margin” general definition of the limits of the continental shelf was always likely to be found to be customary international law – and now the ICJ has determined that it is (para 118: correct me if I’ve missed an earlier case). Read the rest of this entry…

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Self Determination and the Syrian Conflict – Recognition of Syrian Opposition as Sole Legitimate Representative of the Syrian People: What Does this Mean and What Implications Does it Have?

Published on December 6, 2012        Author: 

A couple of weeks ago, the United Kingdom recognised the umbrella Syrian opposition organization, National Coalition for Syrian Revolutionary and Opposition Forces (NCS) as the “sole legitimate representative of the Syrian people”. In so doing, the UK was following a number of other States that have also recognised NCS as the legitimate or sole legitimate representative of the Syrian people. It is reported that the US government will accord the same recognition, perhaps next week. In the summer of 2011, many States also recognised the Libyan National  Transitional Council as the “[sole] legitimate representative of the Libyan people” prior to later recognising the Libyan NTC as the government of Libya (see previous EJIL:Talk! Post here and an example here). The question that arises with this recognition is: what does it mean to recognise an entity as the legitimate representative of the Syrian [or Libyan] people? Also, what are the implications of such recognition? Does this type of recognition operate only in the world of international politics, or does it have some legal basis?  More importantly, does this form of recognition have legal consequences?

In particular, I wish to examine in this post whether the recognition of NCS as legitimate representative of the Syrian people should be taken to mean that Syria is regarded as a case where the Syrian people are exercising their right of self-determination, through the NCS. If that is so, what consequences might this have for actions that foreign States may take and what assistance, if any, might this entitle the Syrian opposition to? Read the rest of this entry…

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Palestine, When is Your Birthday?

Published on December 5, 2012        Author: 

lironpic

 Col. (Retired) Liron A. Libman, LL.M, is a former Head of the International Law Department of the Israeli Defense Forces.

On 29 November, in what some reports described as a historic vote, the UN General Assembly accorded to “Palestine” the status of a “non-member observer state” in the organization. The Palestinian Liberation Organization (PLO) has enjoyed an observer status in the UN since 1974. Since 1988 the PLO mission to the UN was designated “Palestine”. Therefore, the supposed novelty is the UN recognition of Palestine as a state.

I do not want to discuss here the question of Palestinian statehood itself: whether “Palestine” has the objective qualification of a state under international law. Rather, I want to concentrate on the Palestinian official view as to the date when the Palestinian state was established. Many states celebrate their national day on that date, so in simple words, I ask when will the Palestinians celebrate their Independence Day?

I start my inquiry with the epilogue of Dr. Abbas, chairperson of the PLO, in his speech to the General Assembly:

“Sixty-five years ago on this day, the United Nations General Assembly adopted resolution 181 (II), which partitioned the land of historic Palestine into two States and became the birth certificate for Israel.

The United Nations General Assembly is called upon today to issue the birth certificate of the reality of the State of Palestine.”

Dr. Abbas asked the General Assembly to grant a “birth certificate” to the state of Palestine. Taking this metaphor seriously, this implies that the Palestinian state already exists. To the best of my knowledge (as a father, if I may add), first, a child is born and only afterwards can the happy parents receive a birth certificate. The certificate is an official acknowledgement of a fait accompli.

However, Dr. Abbas paralleled the resolution he asks for with General Assembly resolution 181(II) of 29 November 1947, which he views as the birth certificate of the state of Israel. The problem is that clearly resolution 181(II) did not recognize an existing state of Israel, but rather recommended the future establishment of a Jewish state (alongside an Arab state) upon the termination of the British Mandate. The resolution even set a timetable for the coming into existence of the two future states.  Israel was established only about six months later, on 14 May 1948, when the Jewish People’s Council approved the Declaration of the establishment of the state of Israel. Clearly, resolution 181(II) was not the birth certificate of the state of Israel.

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Call for Papers: International Law Association (British Branch) Annual Conference – April 2013

Published on December 5, 2012        Author: 

The  International Law Association (British Branch) has issued a call for papers its 2013 spring conference which will be on the following theme:

The Changing Face of Global Governance: International Institutions in the International Legal Order

Venue: University of Oxford

Date: 12-13 April 2013

The Conference Keynote Address and Inaugural Oxford Global Justice Lecture will be delivered by:

by Patricia O’Brien, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel

CONFERENCE THEME

The conference will explore the changing nature of international institutions and their impact on international governance, international law-making and law-enforcement. Read the rest of this entry…

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Oxford University Seeks Three Human Rights Post Doctoral Fellows

Published on December 5, 2012        Author: 

The Oxford Martin School Programme on Human Rights for Future Generations is seeking three Postdoctoral Research Fellows. This interdisciplinary research programme, which I will co-direct, will commence in January 2013 and will focus on the extent to which human rights constitutes an appropriate framework for confronting some of the most serious problems facing current and future generations. Within this shared framework the research programme focuses on three of the most urgent aspects of insecurity: armed conflict, poverty and environmental change. This programme is a collaboration of academics in the Faculty of Law, the Faculty of Philosophy, and the Department of Politics and International Relations, at the University of Oxford. The Research Fellows will have completed (or be about to to complete) a doctorate in Law, Philosophy, Politics or International Relations. Each of the posts is for three years starting in January 2013 or as soon as possible thereafter.

Further information about these positions can be found here  and  here

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Does General Assembly Resolution 67/19 Have Any Implications for the Legal Status of Palestine?

Published on December 4, 2012        Author: 

Jure Vidmar is Leverhulme Early Career Fellow in the Faculty of Law, and Research Fellow at St Johns College, University of Oxford. He has written widely on the process of State creation (see SSRN page here), including: ‘Explaining the Legal Effects of Recognition’ (2012) International and Comparative Law Quarterly 361.

On 29 November 2012, with 138 votes in favour, nine against and forty-one abstentions, the General Assembly adopted Resolution 67/19, which, inter alia, “accord[ed] to Palestine non-member observer State status in the United Nations…” This post considers whether the vote in the General Assembly objectively confirms that Palestine is a state and/or whether the General Assembly on 29 November 2012, in fact, created a new state (a matter considered briefly by Dapo at the end of his post on the Resolution). In essence, did the Resolution change anything in terms of legal status and did Palestine on 29 November become more of a state than it was on 28 November? The post thus narrowly focuses on the implications of Resolution 67/19; it does not intend to clarify Palestine’s legal status in general.

In this instance, Palestine’s legal status could be implicitly clarified in two ways. One way would be if the Resolution meant admission to the international organisation, which prescribes statehood as a prerequisite for membership. The other possibility is that by voting for the Resolution which accords “to Palestine non-member observer State status” [emphasis added], those states voting in favour implicitly recognised Palestine as a state. Indeed, the Resolution here says that Palestine is a state. What is the legal significance of this phrasing and of the fact that 138 states are happy with it? Did the 138 states voting in favour thus create a state by (implicit) recognition or at least confirm Palestine’s legal status?This post will argue that the General Assembly resolution itself and the voting behaviour of states neither altered nor clarified the legal status of Palestine. On 29 November 2012, Palestine did not become more or less of a state than it was before. The Resolution may well be a significant step in an internationalised political process which could ultimately clarify and settle Palestine’s legal status. But the Resolution of 29 November 2012 does not have any direct legal implications for Palestine’s statehood.  Read the rest of this entry…

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Palestine as a UN Observer State: Does this Make Palestine a State?

Published on December 3, 2012        Author: 

Last week, the UN General Assembly voted by 138 to 9 (with 41 abstaining) “to accord to Palestine non-member observer State status in the United Nations”. Thus, Palestine which has been an observer at the UN since 1974 has had its status within the UN upgraded to being an observer State. There has been much euphoria on one side as a result of this decision, and dismay on the other side. However, what are the implications, if any, of this decision. It is thought that one reason why Israel opposed the change, though it asserts that the decision achieves nothing, is that characterising the Palestinian as an observer State would give Palestine access to legal, particularly judicial, remedies that it otherwise would not have (see BBC Q & A report here). It was reported that the United Kingdom, which in the end abstained from voting, was prepared to vote in favour of the resolution, if Palestine had been prepared to pledge not to ratify the Rome Statute of the ICC or to seek to utilise the International Court of Justice. So though the granting of observer Status does not change “the facts on the ground”, it is thought that it would change the legal position of Palestine under international law. But does it? Are there new legal options open to Palestine as a result of the resolution and does the resolution constitute Palestine as a State?

Any student of international law will be familiar with the debate between the declaratory theory of recognition of States and the constitutive theory. Theory, practice and judicial decisions favour the declaratory theory and assert that recognition does not create Statehood. Although last week’s decision does not grant Palestine membership of the UN (which would require Security Council approval), the decision to grant observer State status to Palestine is an act of collective recognition of the statehood of Palestine. If that decision is capable of effecting the legal changes hoped for (by proponents) or feared (by those oppose the decision), this will provide strong support to the view that collective recognition is capable of creating Statehood. Read the rest of this entry…

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