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The Ruins of the Sources Theory and the Garden of Eden: A Rejoinder to Carlos Esposito and Philip Allott

Published on December 14, 2012        Author: 

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.

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Comment on d’Aspremont’s Formalism and the Sources of International Law: We Don’t Just Talk Past Each Other; We Disagree!

Published on December 13, 2012        Author: 

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.

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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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Belgium v. Senegal: Did the Court End the Dispute between the Parties?

Published on July 25, 2012        Author: 

Inna Uchkunova, New Bulgarian University (LLM) is a Member of the International Moot Court Competition Association.

The Judgment in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) is the first in the history of the International Court of Justice (“ICJ”) in which it found that a State had standing based on obligations erga omnes partes. Before that, the PCIJ had only once to pronounce on this question in the 1928 Wimbledon case. In para. 68 of its judgment the Court stated, inter alia, that:

The States parties to the Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity. The obligations of a State party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for prosecution are triggered by the presence of the alleged offender in its territory, regardless of the nationality of the offender or the victims, or of the place where the alleged offences occurred. All the other States parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention. All the States parties “have a legal interest” in the protection of the rights involved (Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 32, para. 33). These obligations may be defined as “obligations erga omnes partes” in the sense that each State party has an interest in compliance with them in any given case.

The Court’s reference in the judgment to the Barcelona Traction case may create confusion as to the difference between obligations erga omnes partes (Article 48(1)(a) of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA)) “owed to a group” of States and erga omnes obligations (per se) which are “owed to the international community as a whole” (Article 48(1)(b)).  The ARSIWA Commentary clarifies that the name “owed to the international community as a whole” was preferred over erga omnes in order to avoid confusion “with obligations owed to all the parties to a treaty.” The better view seems, therefore, to be that obligations erga omnes partes exist in the case of treaties such as the CAT or the Genocide convention, while obligations erga omnes form part of customary law.

Article 48 ARSIWA represents progressive development, but the Court in East Timor did not rule out standing deriving from obligations erga omnes either. It merely stated that “the erga omnes character of a norm and the rule of consent to jurisdiction are two different things.” (para. 29) In that case the Court lacked jurisdiction based on the Monetary Gold principle. It remains to be seen whether erga omnes skeptics are to be proven right or wrong.

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Comparative Law and the Ad Hoc Tribunals: A Reply to Jaye Ellis’ Rejoinder

Published on June 19, 2012        Author: 

In her rejoinder to my post, Jaye Ellis underscores that “comparative law could help international judges understand general principles as an opportunity to learn from municipal legal systems, rather than as a means of transferring pieces of legal machinery from one system to another”.

Insofar as comparative law is considered merely as an opportunity to “learn” from municipal legal systems, then the matter is relatively uncontroversial. A perhaps more controversial question, however, is: how are the lessons learnt from comparative law to be used?

While some authors, on the one hand, have suggested that the lessons from comparative law may provide safeguards against judges who attempt to legitimate a posteriori a solution that they have already chosen (see Delmas-Marty, The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law, Journal of International Criminal Justice (2003)).

On the other hand, some commentators have suggested that comparative law may be used for precisely the converse reason. Judge Cassese, for instance, intimated that:

Mon experience est que souvent le droit compare est utilise pour confirmer une solution que l’on avait déjà trouvée.(cited in Bohlander and Findlay, The Use of Domestic Sources as a Basis for International Criminal Law Principles, in the Global Community Yearbook of International Law and Jurisprudence (2002)).

It is perhaps this apprehension which explains Judge Cassese’s categorical stance in Erdemović, in relation to the acceptance by the Tribunal of a guilty plea. While the Tribunal concluded that it could restrict its search solely to common law adversarial systems from which the rule was derived, Judge Cassese insisted that such a narrow inquiry was unacceptable. Read the rest of this entry…

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Comparative Law and the Ad Hoc Tribunals: A Rejoinder to Aldo Zammit Borda

Published on June 15, 2012        Author: 

Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971

In his EJIL:Talk! post commenting on my recent EJIL article, Aldo Zammit Borda begins with reference to an approach to the identification of general principles of international law that is quite different from the one I described as being the current dominant approach, and rather similar to the approach that I propose in my paper. Central to my argument is that comparative law could help international judges understand general principles as an opportunity to learn from municipal legal systems, rather than as a means of transferring pieces of legal machinery from one system to another. The approach taken by Judge Shahabuddeen in Furundzija, and adopted by Aldo, seems compatible with the one I advance. I would propose the adoption of a more modest goal: rather than hoping to find ‘a common underlying sense of what is just in the circumstances’ as Judge Shahabuddeen would have it, I would suggest the identification of a reasonable, and reasonably just, solution to a legal problem. Nevertheless, Judge Shahabuddeen’s approach moves sharply away from a mechanical, or functional, approach to borrowing from municipal legal systems. I am less confident than Aldo regarding the extent to which this principle is reflected in what most international judges do, and what legal scholars say they ought to do, when it comes to general principles, though judges on international criminal tribunals are moving in interesting and promising directions.

I am not convinced that Aldo’s approach to comparative law provides appropriate guidance to international judges looking to learn from municipal law. Schmitthoff’s approach to comparative law, adopted by Aldo, is problematic in my view. I agree with Schmitthoff that comparative law is better described as a comparison among reactions of legal systems to a problem than as a comparison between legal rules and institutions, but I find that the second stage, the utilization of the results obtained, is question-begging. Read the rest of this entry…

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Comparative Law and the Ad Hoc Tribunals: A Reply to Jaye Ellis

Published on June 1, 2012        Author: 

Aldo Zammit Borda is a PhD candidate at Trinity College, University of Dublin and a Fellow of the Honourable Society of the Middle Temple. Previously, he served as First Secretary, Ministry of Foreign Affairs of Malta, and as Legal Editor, Commonwealth Secretariat, London.

 1. Introduction

This post seeks to engage with Jaye Ellis’ article on ‘General Principles and Comparative Law’ (22 EJIL (2011) 4, 949–971). While it agrees with Ellis’ general proposition that comparative law provides a valuable resource for the identification of general principles of law, it argues that there are important distinctions to be drawn between the comparative law method and the review of evidence for the purpose of clarifying customary international law and general principles of law. In particular, the argument is made that the identification of general principles is not, as Ellis suggests, the mechanical extraction of the essence of rules. Rather, it is the juridical identification of a common underlying sense of what is just in the circumstances. In her article, Ellis was critical of the late Judge Cassese’s position in Erdemovic, for insisting that an approach which relied primarily on common law systems for guidance on the guilty plea was “unacceptable.” This post however agrees with Judge Cassese’s position and underscores the dangers in accepting narrow inquiries, which at best attach special weight and at worst restrict the scope of  inquiry to a single, specific legal system.

2. Comparative Law And The Ad Hoc Tribunals

In ‘The Science of Comparative Law’ (7 Cambridge LJ (1939-1941) 94), Schmitthoff observes that  “The  first  phase  consists  in  examining  the  reaction  of  a number  of  legal  systems  to  an  individual  legal  problem.  The second stage is concerned with the utilization of the results obtained  in  the  first  phase,  and  this  utilization  can  be  effected for a great variety of reasons.”

This post will mainly be concerned with the first phase of comparative law (the “collation of facts” phase), which assumes, as a prerequisite, that the topics under examination must be comparable. Schmitthoff states that comparative law has to confine itself to legal systems which have reached the same (comparable) level of evolution. Establishing a basis of comparability for the relevant topics is therefore a prerequisite of comparative law. For Barak, this basis of comparability is a common ideology. He states that, with respect to democratic legal systems, a meaningful comparison could only be had with other democratic legal systems.

A. The Application Of Comparative Law By The Ad Hoc Tribunals

Delmas-Marty observed that the attraction of comparative law stems from the sources of international criminal law, at least to the extent that custom and general principles of law are partly based on national law. (‘The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law’, 1 J International Criminal Justice (2003) 13)

1. Comparative Law And Customary International Law

The process of clarifying customary international law requires reviewing evidence from, inter alia, national jurisdictions in order to make out its material sources, namely State practice and opinio juris. The process of reviewing evidence in this context resembles Schmitthoff’s first phase of comparative law, namely, the “collation of facts” phase. Read the rest of this entry…

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General Principles and Comparative Law

Published on May 31, 2012        Author: 

Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971

My article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. As international law’s agenda becomes wider and more ambitious, areas of overlap between international and municipal law become ever larger, and interactions between the two levels more numerous. It might seem reasonable to assume that general principles of law, a source which establishes an important point of contact between international and municipal law, would come into its own in such an environment. This has not been the case, however. One possible explanation is hesitation on the part of international judges to identify rules whose formal validity as rules of international law is rather tenuous. Another possible explanation is the highly unsatisfactory nature, both in theory and in practice, of the methodology currently applied to identify general principles of law. The debates at the international level regarding general principles map onto those at the municipal level concerning the ‘borrowing’ of rules from one legal system by another. It makes sense, therefore, to look into the controversies over ‘borrowing’ that play out in scholarship on comparative law, in order to gain some insights into the difficulties generated by the source general principles of law, as well as ways of alleviating these difficulties. I argue that particular attention ought to be paid to strands of comparative law scholarship which take issue with a functional approach – to put it starkly, an approach that treats legal rules as pieces that can be extracted from one machine and inserted into another – and which place emphasis on the processes through which legal systems can learn from one another.

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