Editor’s Book Choices: Jean d’Aspremont

Looking back at one’s readings over the last 12 months is a rather humbling exercise. We, international legal scholars, are supposed to be reading all the time, at least during these moments miraculously rescued from teaching, management and administration. In practice, even in these precious reading and reflection periods we do not properly read. Too often we skim rather than read. Too often we zero in on some carefully selected chapters or sections of books and form our opinions on the basis of rather limited samples. Too often we navigate books according to our research agenda (after having picked them in a similar way). The main explanation for this perennial reading attitude is that we, international legal scholars, read functionally, i.e. with a specific argument or project in mind. Albeit conducive to short-term efficiency and productivity, this functionalist approach to reading is obviously regrettable. Indeed, it rarely allows us to let our thoughts dawdle in the imaginary space created by the thoughts of others. But this is not the saddest part of the story. Running from one deadline to the other, we, international legal scholars, may even come to forget what we have read and only remember the argument or the project that our readings served. This is why looking back at one’s past year’s reading can make one feel like a marathoner who, on the finishing line, relishes his achievement but who, out of breath, is completely oblivious about the landscape that unfolded during the race. It is against the backdrop of such functional reading patterns of present day academia and the correlative oblivion that I let my choice be guided by three memorable traits or mindsets which I ascribe to some of the authors whose books I read in 2014: modesty, courage and inquisitiveness. It is the memory of these distinct traits or mindsets that revives my recollection of three specific books which I read thoroughly during the last 12 months. The following choice is certainly not meant as a personal charts or quality ranking. These three books are simply three works which did not leave me indifferent. That a book creates a feeling or an emotion with its reader is, in my view, a good sign. It is maybe the best that a book can ever achieve and indifference is probably the most tragic fate for a book, let alone a scholarly book.

Modesty: James Crawford’s State Responsibility – The General Part was published in 2013 but it took me until mid-2014 to seriously read it. It reads like a “synthesis” of the author’s past accounts of the conceptual and functional variations of the law of responsibility. This historical exposition is shrewdly constructed as to vindicate the author’s own vision of the doctrine in the framework of the International Law Commission’s work on State Responsibility which is in turn presented as a “modern synthesis” in which all the visions of the old Masters have coalesced. This historical exercise of objectivisation is meant to consolidate the version of state responsibility that Crawford managed to impose on the International Law Commission. State Responsibility – The General Part being an exercise of consolidation, it could have been expected that the author also uses it to promote those interpretations and conceptual choices which were not  supported by the International Law Commission at the time. One inevitably thinks of the famous controversy around the entitlement of non-injured states to take countermeasures in the general interest, provided that they could at demonstrate a universal legal injury. It is well-known that, in the light of the opposition within the International Law Commission, James Crawford, an avowed proponent of that option, secured the inclusion of a saving clause, thereby leaving the resolution of the matter to further developments in international legal scholarship and practice. It is remarkable that the commentary that accompanies the saving clause provides an account of practice which, rather than supporting the open-endedness of the Articles on State Responsibility,  buttresses the entitlement of non-injured states to take counter-measures in the general interest. So does a seminal PhD thesis written at the time by Christian Tams under the supervision of James Crawford. Yet, in State Responsibility – The General Part this subtle exercise of muscle-flexing is succeeded by modesty. Interestingly, State Responsibility – The General Part does not perpetuate the ambiguity of the commentary nor does it seek to engage with that debate any further. Rather, it  limits itself to recall the opposing positions in the debate on Article 54. What is more, State Responsibility – The General Part even seems to stick to (and vindicate) the rationale of the saving clause, thereby explicitly backing away from the support for countermeasures in the general interest that was perceptible in the commentary to Article 54. It is as if the author of State Responsibility – The General Part had come to terms with the impossibility of defending the idea of countermeasures in the general interest as a matter of law and retreated from the veiled activism that infused the commentary. In that sense, the modesty of State Responsibility – The General Part is also accompanied by a latent feeling of resignation. This is not surprising. Modesty and resignation often travel together, the former manifesting our coming to terms with the limitations of what we can achieve. James Crawford shows us not only his great mastery of international law, but also offers us a glimpse of all the social and psychological processes through which ideas and concepts are designed, sold, received, and someday abandoned.

Courage: When reading Russell Buchan’s Lieber Prize-winning book entitled International Law and the Construction of the Liberal Peace, it is difficult to resist the feeling that this book is a very courageous enterprise.  In my view, it takes a lot of courage in the 21st century to seek to vindicate the democratic peace theory and, with it, the democratic legitimacy thesis, especially given the dominant cynical mindset to which many international lawyers have succumbed. Even more courageous is the author’s claim – in which the entire work is anchored – that there exists a community of liberal states. By Russell Buchan’s account, such a community consists  of a growing majority of states that adhere to liberal democracy and distinguishes itself from the international society that supposedly seeks to protect state autonomy by virtue of rules like non-intervention or the prohibition to use force. It is platitudinous to stress the inevitable hegemonic – and maybe colonialist – character of the very idea of a virtuous community that deprives illiberal villains of the benefit of some of their rights (reminiscent of ideas put forward by John Rawls in his Law of Peoples). Such a charge probably holds for any scholarship seeking to promote liberal democracy in the international society and no doubt the author is aware of it. This makes Russell Buchan’s enterprise even more audacious. And with his courage comes some fresh air. In an era when our faith in normative projects has shrunk and when we see ourselves condemned to run, not only from deadline to deadline, but towards unattainable and contradictory horizons, such courageous normative projects allow us to escape, albeit only temporarily, some of the despair and cynicism into which scholarship in the last 30 years has drifted.

Inquisitiveness: With his new opus entitled The Sources of International Law, Hugh Thirlway – obviously an uncontested authority on the question – offers us what probably constitutes the state of the art on the topic. Indeed, in The Sources of International Law, the mainstream 20th century modernist doctrine of the sources of international law – itself a product of 19th century legal thinking – is spelled out and refined to an unprecedented degree. It is also carefully updated, taking into account all the latest judicial pronouncements. It is a treasure trove for all practitioners and researchers in the field. Although the doctrinal account of the sources found in the book is impressive, it is the last part of the book (chapter IX) that, in my view, constitutes its most noteworthy feature. This part is remarkable for its attempt to bridge what looks, at the surface, unbridgeable: the gigantic sea of incommensurability that has come to separate various strands of scholarship in the last decades, especially between those who have faithfully and mechanically abode by the doctrine of sources and those who have sought to reflect upon it, test its usefulness and unravel its contradictions. The latter have moved in the opposite direction of the former, for they have ceased to think about the sources of international law from the rule-based vantage point of Article 38 of the Statute of the World Court and recognize that the sources can constitute many things at the same time: dynamic law-ascertainment techniques, a catalogue of the available law-making processes, or more simply argumentative techniques to generate authority of legal argument and provide a platform for the continuation of politics. In this respect, it is no coincidence that when I sent Hugh Thirlway a copy of my monograph on the same topic 4 years ago, he kindly acknowledged receipt and thanked me for something he then considered to be written in a language that he was not certain to fathom. With his new opus, Hugh Thirlway, after a distinguished career as a scholar and as a Principal Secretary of the International Court of Justice, shows us that he still is ready (and able) to learn new languages, make himself familiar with new conceptual and cognitive vocabularies and look at institutions he helped perpetuate during his entire career from radically different angles. This is not to say that he vindicates such reflective – he calls them “alternative” – approaches. On the contrary the tone seems to indicate that he doubts their usefulness and his engagement remains minimalistic. Yet, Hugh Thirlway’s inquisitiveness is most commendable as it conveys some reasonable hope that debates on such a foundational topic of international law can continue despite some inevitable conceptual, cognitive, functional, inter-generational, inter-professional, cultural, geographical, and ideological incommensurability.