EJIL Debate. A Reply to Thirlway: I am not Thinking From the Bench

Being the object of a public rebuttal in an highly visible on-line blog platform by a prominent author like Professor Thirlway probably constitutes the most generous reward one can receive for “burning the midnight oil“. This also provides a fate for one’s work that is much better than the oblivion and indifference to which most of scholarly outputs are condemned in today’s academic pathologically prolific scene. This is why I could not be more grateful to Professor Thirlway for his comments on my article. Our repeated public debates these last years (for another example, see here) remind me that we share many areas of interest (sources, international dispute settlement, responsibility, etc) but also confirm that our views are simply — and thankfully — irreconcilable. In this short reaction, I want to respectfully show that our views diverge on the structure of legal argumentation related to sources and interpretation (1) as well as on the purpose of international legal scholarship (2).

Saving the Court through opposability

The reading of the judgment of the International Court of Justice (hereafter ICJ or the Court) in the Whaling in the Antarctic case which I have articulated in the European Journal of International Law and with which Professor Thirlway takes issue can be summarized as follows: the Court blurred the lines between the doctrine of sources and the doctrine of interpretation (and the modes of legal argumentation associated with each of them) by calibrating the interpretive value of IWC resolutions for the sake of interpreting the notion of ‘scientific approach’ in Article VIII of the Whaling Convention on the basis of Japan’s assent to those resolutions.

I deem it unnecessary to rehash this claim here. For the sake of this short reaction, it suffices to emphasize that my reading of the judgment is informed by my long distinguishing of two doctrines — and two sets of modes of argumentations corresponding to them, namely sources and interpretation. Although the application of the modes of legal reasoning prescribed by the sources is itself of an interpretive nature, I have long considered that the distinction between law-ascertainment (sources) and content-determination (interpretation) constitutes a central modern dichotomy inherited from the Enlightenment which has been shaping international legal argumentation for at least two centuries. In my view, this dichotomy is also what lies at the heart of the self-referential foundations of international law as a whole (see here). This does not mean that such a dichotomy is good or bad but, more simply, that it deeply and continuously permeates international legal thought and practice while also providing a useful analytical category when scrutinizing legal reasoning. According to the argument I developed in the article discussed here, the blurring of the lines between these two modes of argumentation by the Court in the Whaling case constitutes a — rather unspectacular — variation of one of the most basic moves found in international legal argumentation since the Enlightenment.

This being said, my reading of the judgment of the Court in the Whaling case which Professor Thirlway criticizes has never been meant to lament any lack of rigour by the Court or its disregard for the abovementioned distinction between sources and interpretation. In fact, I have never felt the need to be the guardian of those modern argumentative moves, let alone the distinction between law-ascertainment (sources) and content-determination (interpretation). In my view, as long as argumentative constructions convince all those who invoke them, international lawyers’ regulatory projects can go down any argumentative route they deem appropriate and convincing. Yet, I remain unconvinced by the reduction of the question of the interpretive weight of IWC resolutions to a question of opposability as is contended by Professor Thirlway in his rebuttal. In traditional approaches to international law — which he has always claimed to be both an heir of and a champion — opposability hardly plays a role when it comes to determining the interpretive weight to be given to an instrument, let alone the possible bindingness of that instrument. In that sense, I believe Professor Thirlway overestimates the place of opposability in both mainstream international law and in the reasoning of the Court.

To be honest, if, at the end of the day, Professor Thirlway really wants to see opposability at work everywhere, I can live with it. I am slightly more bewildered by the extent to which opposability is invoked by Professor Thirlway to rehabilitate the ICJ and its judgment in the Whaling case. Whilst I strongly believe that whales are cetaceans that must be protected from extinction by all means — including through judiciary battles, no such need of protection is needed for the distinguished judges of the Court and the venerable institution they serve. I am not even sure that those serving on the ICJ are necessarily asking for rescue missions by scholars, even when they find themselves under scholarly fire. At least, neither the ICJ nor its authority is likely to be threatened by scholarly charges against the Court’s argumentative construction. On the contrary, I have come to think that the fact that scholars critically engage with the structure of the Court’s reasoning is a sign that they take this institution seriously.

The temptation of the permanent moot court competition

My most fundamental concern with Professor Thirlway’s rebuttal of my appraisal of the Whaling judgment lies elsewhere, namely in the contention that my reading of the Whaling judgment is incommensurable with what both the Court and the parties had in mind. Professor Thirlway more particularly bemoans the fact that my claim is something which the Court and the parties would have great difficulty recognizing as their own, asserting that I misunderstood what the Court was actually doing. In my view, his charge in this regard calls for two considerations.

First, I wonder how one can confidently reduce the judgment-making process to a single and objectively ascertainable “will” or “intention” of the institution and claim that there is such an absolute thing as “what the Court was actually doing”. The same holds with his objectivist flattening of the position of Japan. I have always found that this form of objectivism and reductionism — which is also very common in relation to the ascertainment of State’s will (see here) — is not only a type of highly reductive anthropomorphism but also a form of institutional or procedural natural law.

Second, I find it slightly alarming that one can criticize a scholarly reflection about an ICJ judgment for not resorting to the very categories which the Court and the parties have expressly relied on. In my understanding, scholarship is primarily about deploying — and experimenting — novel analytical and evaluative tools with a view to offering a reading beyond the legal categories and patterns of arguments that are being examined and evaluated. In fact, I have always found it rather sterile to analyse legal reasoning only in its own terms. Scholarship requires that the observer elevates herself himself above the patterns of argument expressly invoked by the actors under her or his scrutiny. From this perspective, Thirlway’s criticism of my argument epitomizes what I have called elsewhere a form of judicialized legal thought (see here). A judicialized legal thought boils down to the attitude of an observer who thinks of herself or himself as engaged in a permanent moot court competition, that is the inclination of commentators and scholars to “think from the bench” and behave as a virtual appeal judge that reviews legal arguments made by a lower court.

Whilst I can live — albeit unconvinced — with Professor Thirlway’s vindication of a reading of the case from the perspective of opposability, I feel uneasy with his reduction of scholarship to a permanent moot court competition. Thinking from the bench is hazardous because it prevents international legal scholars from making demand on international law and the world other than for the sake of judicial engineering. The result is an international legal scholarship that is stripped of all the intellectual avenues it can possible offer to reinvent the world and its battles to save its most cherished cetaceans.