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.
Comment on d’Aspremont’s Formalism and the Sources of International Law: We Don’t Just Talk Past Each Other; We Disagree!
Jean d’Aspremont is concerned with the effects of the Babel syndrome created by legal pluralism. He is bewildered that international scholars ‘talk past each other’: the impression that international legal scholarship has become “a cluster of different scholarly communities, each using different criteria for the ascertainment of international legal rules” (3). This is the justification for his impressive intellectual effort to present a ‘theory of the ascertainment of legal rules’ and engage in the politics of formalism (29).
His theory is rooted in Herbert Hart’s famous source and social theses, which are reinterpreted by d’Aspremont to fit international law. In d’Aspremont’s theory, “law-ascertainment in international law must be conceived independently of article 38 [of the ICJ Statute], which was not only conceived to serve another purpose, but also leaves too much room for non-formal law-ascertainment”(150). He favours the use of written linguistic indicators (formal law-ascertainment is only possible for rules enshrined in a written instrument) to guarantee formal law-ascertainment in international law and move away from intent-based systems to determine international legal rules.
D’Aspremont affirms that his proposal amounts to “a complete reversal of our theoretical perspectives which allows the ascertainment of treaties and other international legal acts to do away with the speculations inherent in the establishment of intent and makes it exclusively dependent on the use of linguistic indicators” (192). The source thesis, by which rules are ascertained through their pedigree, is completed by the social thesis, which provides the foundations for the formal law-ascertainment of rules in the social practice of law-applying authorities. That is, in a nutshell, D’Aspremont’s recipe to secure true common legal language in “an age of pluralized normativity” (221), a goal that cannot be achieved by other techniques of law identification based on impact, compliance, process, or intent.
A blog post is, of course, not the ideal medium to review in detail the many interesting points raised by d’Aspremont in his encyclopedic, often complex, but absolutely remarkable piece of scholarship. I would rather advance three interconnected comments on some of the more controversial aspects of his book.
Last week, I posted that the Oxford Martin School Programme on Human Rights for Future Generations is seeking three Postdoctoral Research Fellows. It has just come to my attention that the links I used in that post were not working. I apologise for that error. I now have just fixed the links in my previous post. Further information about these positions can be found here and here .
The deadline for applications is midday (UK time) tomorrow – Dec. 13!
Comments on Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules
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?
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.
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.
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…
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?
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…
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.
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
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
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…