The Concept and the Rationale of Formalism in International Law
The Concept and the Rationale of Formalism in International Law
Abstract and Keywords
This chapter spells out the various meanings of formalism in the international legal scholarship. It starts by explaining how formalism is understood in the book, that is as a theory of law-ascertainment that materializes itself in a model of ascertainment based on the pedigree of rules (the so-called source thesis) grounded in social practice (the social thesis). The chapter then attempts to distinguish between a conception and the current associations of formalism with adjudicative neutrality and immanent intelligibility of legal arguments, voluntarism, State-centricism, formal lawmaking processes or legal positivism. The chapter also elaborates on the extent to which the theory of formalism presented in the book, albeit different, is compatible with the famous — and somewhat ironical – “culture of formalism” put forward by Martti Koskenniemi. The chapter finally expounds on the rationale of a formal theory of ascertainment and discusses the contribution of formal-ascertainment to the preservation of the normative character and authority of international law, the significance of scholarly debates about international law, the possibility of a critique of international legal rules and the international rule of law.
2.1 Formalism and its Multiple Meanings
2.1.1 The concept of formalism espoused in this book: formalism as a theory of law-ascertainment based on social practice
Formalism is construed here as a particular conception of law-ascertainment. In general, ascertaining legal rules is a complex operation which cannot be improvised, for law-ascertainment presupposes that legal scholars and experts, as well as law-applying officials, first agree on a few basic standards allowing them to identify the law that they study or apply. In that sense, law-ascertainment necessitates an a priori standardization of law-identification criteria. Such standardization can be formal, non-formal, or hybrid. Formalism as law-ascertainment contrasts with the use of non-formal or hybrid law-ascertaining criteria in that it refers to the use of formal yardsticks to distinguish law from non-law. According to a formal conception of law-identification, any norm that meets such predefined formal standards is a rule of law. This formal standardization will materialize itself in predefined formal indicators. These predefined indicators can be linguistic or material. This means that formal ascertainment of legal rules does not automatically necessitate the existence of a written instrument where the rule concerned is enshrined. Indeed, linguistic indicators—that is, the use of a given predefined language—can be oral and do not necessarily need to be translated in writing. Likewise, material indicators—that is, the use of a more or less deliberate given procedure—can be exclusive of any written document. While recognizing the possibility of formal ascertainment of legal rules through the use of non-written indicators, this book nonetheless seeks to demonstrate that written linguistic indicators should play the predominant role in the ascertainment of international legal rules if formalism is to achieve any of the rationales described below. In making this argument, this book simultaneously attempts to show that those rules of international law which are ascertained short of any written instrument suffer from significant problems of normativity. Examples will be provided in chapter 7.
The understanding of formalism espoused here thus requires an inquiry into whether a norm purporting to be law meets the formal standards associated with such a predefined pedigree. This is why formalism in the theory of law-ascertainment (p.13) is often referred to in the literature as the source thesis: the term ‘source’, in this context, referring more generally to the origin and the making of the norm. The so-called source thesis provides that law is ascertained by its pedigree defined in formal terms and that, as a result, identifying the law boils down to a formal pedigree test.1 Because the pedigree is defined in formal terms, the source thesis entails formal law-ascertainment. The source thesis is often contrasted with models of law-ascertainment based on substantive criteria. Although the argument made in this book backs away from an overly orthodox conception of the source thesis, the concept of the source thesis is, therefore, used in the following chapters to refer to formal ascertainment of legal rules. Because it happens that in some legal systems the standardized formal pedigree of rules takes the form of rules or principles, formal law-ascertainment is sometimes also conceptualized as a rule-approach to law,2 which contrasts with effect- (or impact-)based or process-based definitions of law.3
It is of the utmost importance to point out that ascertainment of rules and evidence of rules are two distinct intellectual operations. The former is aimed at identifying in abstracto what a rule is, whereas the latter arises when a law-addressee or a law-applying authority respectively invokes or applies such a rule in concreto. Yet, law-ascertainment and evidence of law are closely intertwined. Indeed, evidence of law entails that the law-ascertainment criteria of the rule concerned be verified in concreto.4 Evidence of law thus requires that the authority or the individual applying or invoking the rule demonstrates the actual existence of indicators by virtue of which the rule can be said to have been created—whether they relate to the source, the law-making procedure, the content, or the effect of the rule. This does not mean, however, that if the ascertainment of a rule has been made formal, the evidence of that rule will necessarily be formal. In fact, it may well be that the formal criterion by virtue of which a rule is identified is evidenced through a non-formal evidentiary process. Evidentiary processes can be informal. It is, for instance, conceivable that the existence of a written legal agreement be demonstrated by virtue of the subsequent behaviour of the relevant contracting parties.5 The contrary is also true. A rule whose ascertainment is non-formal can well be evidenced through a formal evidentiary process. This is well-illustrated by the scholarly attempts—which (p.14) are described below6—to formalize custom-evidence in the theory of the sources of international law.7
As is envisaged here, formalism is thus restricted to a method of ascertainment of international legal rules. The ascertaining virtues of formalism, as envisaged here, do not extend to the certification of the subjects and participants of the international legal system. Indeed, there is no formal certification of the existence of subjects and actors of international law.8 Probably with the exception of international organizations,9 it seems that this can hardly be otherwise.10 The plea for formalism made here does not bear upon the identification of the subjects and participants in the international legal system.11 The idea that formalism and the certification of the subjects of international law are unrelated is also underpinned by the fact that, even though international law can significantly impact the creation and the form of new subjects,12 there are no positive rules on the certification of the new subjects that can be formally ascertained. Hence, the concept of formalism espoused in this book must be restricted to the use of formal yardsticks for the ascertainment of international legal rules while bearing no consequences for the identification of the subjects and participants of the international legal system.
Likewise, it should be made clear once again that formalism is not envisaged here as a means to describe and delineate the whole phenomenon of law,13 and in particular, to determine the content of international legal rules14 or to explain the (p.15) sense of obligation therein.15 While it helps us to draw a line between law and non-law, formalism falls short of providing any indication as to the substantive content of international legal rules once they have been ascertained.16 Indeed, even if formally ascertained as such, rules must still be interpreted.17 It is true that, if a criterion like the intent of the parties is elevated into a law-ascertainment indicator and if that intent is supposed to be inferred from the instrument, interpretation of the content of the instrument will be necessary to unearth the intent and thus to ascertain law.18 This, however, is a consequence of the use of a non-formal law-identification criteria like intent. It is a question which I will revert to later.19 As such, law-ascertainment and interpretation of the content of rules remain two distinct operations and this is why formalism, as is envisaged here, is unable to describe the entire phenomenon of law and falls short of providing an indication as to the substantive content of international legal rules.
Although the concept of formalism employed here is alien to the determination of the content of international legal rules and is restricted to their ascertainment, it is important to note that the formal identification of rules through a standard pedigree does not entirely stifle indeterminacy at the level of law-ascertainment. On the contrary, formalism inevitably brings about some indeterminacy. Indeed, because of the indeterminacy of the language with which the standard pedigree of the rules is defined, formalism as a set of standardized criteria of law-identification inevitably fails to produce an autonomous and self-contained linguistic convention for the sake of law-identification. As will be explained in chapter 3,20 proponents of the source thesis have, however, devised several conceptual strategies to overcome the non-self-sufficiency of the source thesis and rein in, as far as possible, the inevitable indeterminacy of the formal standards of law-ascertainment. In this regard, this book adopts a particular understanding of formal law-ascertainment derived from social practice. Such a particular conception of the ontology of formal law-ascertainment has been designated in the literature as the social thesis. The archetype social thesis purports to supplement the classical source-based criteria of identification of international legal rules (the source thesis), with a view to endowing it with some limited autonomy, by inferring the meaning of the standard pedigree of rules from the practice of law-applying authorities.21 While the social thesis does not completely eliminate (p.16) indeterminacy or provide autonomy from the source thesis, it still constitutes, as will be developed in chapter 8, a useful framework within which the indeterminacy of formal standards of law-ascertainment can be domesticated without falling into naïve objectivism. In that sense, and thanks to its definitional advantages, the social thesis remains one of the central tenets of the rejuvenation of formalism envisaged here. This is true even if the peculiarities of international law—and the unique configuration of its law-making processes—have always impeded a mechanical and full transposition of the social thesis into the theory of the sources of international law.
The idea that a legal system must rest on some elementary formal standardization of law-identification criteria originating in social practice is not new. This is the well-known conception embraced by Herbert Hart in the Concept of Law. While acknowledging the abiding indeterminacy of law, Hart construed law as rooted in social conventions, allowing it to be constructed without raising the question of the validity of the ultimate rule from which the system as a whole is derived.22 As will be argued in chapter 8,23 such a construction, if transposed into international law, allows us—at least for the sake of the ascertainment of international legal rules—to leave aside the question of the validity of the international legal system as a whole.24 While Hart’s theory can prove significantly helpful in sharpening formalism in the context of international law, I argue that Hart’s insights are insufficient to rejuvenate formalism in international law. In fact, it is well-known that Hart not only demoted international law to a very primitive set of rules which lacks a systemic character but also failed to elucidate the political foundations of his formal understanding of law. This is why Hart’s theory—although instrumental in the revitalization of formalism in the context of international law attempted here—is, as such, insufficient to explain the foundations of formalism in international law and convincingly refute the current trend of deformalization of law-ascertainment. The same is true with the work of his followers. Although the argument of this book also borrows from the approaches of Joseph Raz, Jules Coleman, and Will Waluchow,25 none of them has offered a modernization of Hart’s formalism that fits the specificities of the sources of international law. As far as the ascertainment of international legal rules is (p.17) concerned, a more relevant adjustment of Hart’s thesis is probably found in the endeavours of Brian Tamanaha,26 as well as William Twining,27 to refresh Hart’s theory in order to accommodate a wider range of contemporary phenomena. In particular, they advocate a broader conception of law-applying authorities at the origin of the social practice in which formal law-ascertainment is grounded in order to embrace a wide range of social actors.28 As explained in chapter 3, these accounts provide insights for the application of Hart’s social thesis in the theory of the sources of international law.
Some similarities probably exist between the promotion of formalism advocated here and some of the Hart-based constructivist accounts of international law, according to which international rules are seen as prescriptive statements that require a formal approach.29 However, contrary to these particular constructivist understandings of the normative character of international law, the argument made here and developed in chapters 7 and 8 does not elevate formalism into a constitutive element of rules.
As will be shown in chapter 8, some very relevant insights for the theory of ascertainment are found in the philosophy of language. Consequently, elucidating some of the roots of formalism inevitably requires some detours through philosophy: the arguments developed here will accordingly allude to the work of some of the philosophers who have grappled with these questions.30 The argument made here, as chapter 8 will demonstrate, has been particularly nurtured by the insights offered by philosophers like Ludwig Wittgenstein who, themselves, influenced Hart and his followers.31 However, the occasional references to their philosophical work should by no means be interpreted as an endeavour to borrow authority from their (p.18) philosophy, which international legal scholars rarely grasp completely. By the same token, such references should not be seen as an attempt to directly and naïvely translate the work of the abovementioned philosophers into international law. Their work is far too complex and subtle to provide ready-made solutions for a peculiar system like international law. Moreover, if the identification of international legal rules hinges on some formal standards rooted in social practice, as is advocated here, it does not need to ‘borrow’ anything from other social sciences to ensure its internal coherence. References to the work of Wittgenstein are simply and modestly aimed at helping international legal scholars and international lawyers to disentangle some of the theoretical uncertainties that beset the use of formalism in international law.
Finally, it should be made clear that, as formalism refers here to the use of formal indicators to ascertain international legal rules, the concept of deformalization that is also used throughout this book means the move a way from formal law-ascertainment and the resort to non-formal law-ascertainment criteria. The meaning of deformalization in this book thus departs from the use of that concept to refer to norm-making by informal non-territorial networks.32
2.1.2 Other conceptions of formalism
In the theory of the sources of international law, formalism has been understood in various manners, and not only as formal law-ascertainment. It is fair to say that a large part of the scholarly debate about formalism—and about the school of international law advocating the resort to formal law-ascertainment criteria—has been riddled by mutual misunderstandings and diverging conceptions. Proponents and opponents of formalism have been using incompatible notions, with the latter’s criticisms of the former ending up ‘knocking down a straw man’.33 While this book stands by an understanding of formalism as a theory of law-ascertainment and does not seek to address alternative conceptions of formalism, such alternative conceptions ought, nevertheless, to be mentioned to avert any misunderstanding of the argument made here.
Formalism as a theory of adjudicative neutrality and immanent intelligibility of legal arguments
Formalism is often construed by legal scholarship as a theory of adjudicative neutrality and immanent intelligibility of legal arguments. This is probably how formalism is most commonly understood.34 According to this construction, formalism is meant (p.19) to provide predictability in the behaviour of law-applying authorities while simultaneously endowing judicial decisions with a greater legitimacy and authority.35 In that sense, formalism is the antithesis of radical rule-scepticism and legal realism, which construe law-application as totally indeterminate, and equate law with law-application.36 Formalism in legal argumentation minimizes choice in law-application and maximizes predictability. Such conceptualization of formalism has often gone hand-in-hand with portrayals of the international legal order as a system.37 This type of formalism has, in the history of most legal systems, been subject to oscillations, with periods of dominance of formal legal argumentation succeeded by dramatic movements towards deformalization of legal argumentation.38
Much of the criticism of formalism in the legal scholarship has been directed at such an understanding of formalism reminiscent of a Kantian conception of universal reason. This is particularly true with respect to the realist objections against the ‘abuse of logic’,39 the ‘abuse of deduction’,40 and the ‘mechanical jurisprudence’41 that are supposedly brought about by formalism.42 All these critiques are premised on the idea that formalism is first and foremost a theory of adjudication43 and constitutes some form of dispute-management technique which allows for the identification of the specific rules meant to settle legal disputes.44 Although its theory (p.20) about making social choices also includes a law-ascertainment dimension, the process-based approach of the New Haven School primarily construes formalism as a theory of adjudication and legal argumentation for the promotion of reform.45 Many scholars affiliated with critical legal studies also understand formalism from the vantage point of legal argumentation.46 Some legal positivists have also castigated that form of formalism which they have perceived as nothing more than a ‘noble dream’.47
It is interesting to note that these—in my view very cogent—objections against formal legal argumentation have failed to universally undermine the fidelity of international lawyers to that type of formalism. In particular, old-style legal positivism,48 whose adherents have been among the strongest advocates of the resort to formalism in law-ascertainment, has continued to enjoy significant support in the European49 and Asian50 traditions of international law. American international legal scholars have long distanced themselves from formal legal argumentation, at least since the objections formulated by realists, liberals, and scholars of policy-oriented jurisprudence.51
Whatever the reasons for preserving or repudiating formalism in legal argumentation may be, it is absolutely fundamental to make clear that this book does not discuss formalism from the perspective of legal argumentation and (p.21) adjudication.52 This does not mean, however, that formal law-ascertainment is immune from the problems with which formal legal argumentation and legal adjudication are saddled, in particular those arising in connection with the inevitable indeterminacy of formal standards.53 Indeed, the ascertainment of international legal rules can also be subject to legal argumentation and legal adjudication. As the following chapters will make clear, the conception of formal law-ascertainment that is discussed here does not, however, aim to stifle the indeterminacy as well as the contradictions necessarily afflicting legal argumentation, including legal argumentation about law-ascertainment. This book only zeroes in on the theory of ascertainment itself—and not on legal argumentation about law-ascertainment. Yet, this does not mean that the rejuvenation of the theory of ascertainment put forward here does not help to temper some of the indeterminacy and contradictions inherent in legal argumentation about the identification of international legal rules, as the following paragraphs will demonstrate.
Formalism, voluntarism, and State-centricism
In the literature, commentators often equate formalism with a law-ascertainment mechanism that is exclusively based on State’s consent.54 So construed, formalism has been lampooned for assuring the continued authority of the State.55 The international legal scholarship of the 19th century is often portrayed as promoting such a conception of formalism, which ultimately became an acclamation of State sovereignty. The early 1927 decision of the Permanent Court of International Justice (p.22) in the famous Lotus case 56 is often—mistakenly in my view—interpreted as the culmination of this association of formalism with voluntarism,57 allowing it to survive in 20th and 21st century legal scholarship.58
There is no doubt that, if conflated with voluntarism, formalism remains inextricably plagued by contradictions and fails to offer a satisfying theory to explain the binding character of international law.59 It certainly is not the place, however, to discuss the contradictions of formalism construed as a theory about the foundation of the binding nature of law. Indeed, this book backs away from such a conception of formalism. According to the argument made here, voluntarism is primarily an approach to the authority and legitimacy of international law, which is a different question to the ascertainment of rules.60 This book—although not ignoring the impact of formal law-ascertainment on the authority and legitimacy of international law—does not seek to explain why international law is binding or why subjects abide (p.23) by its rules. This book is thus premised on the idea that formalism and voluntarism cannot be inherently associated.61
This being said, because this book revisits the theory of the sources of international law, it inevitably looks at the creation of international law from a primarily State-centric perspective. This is due to the fact that mainstream conceptions of the sources of international law remain largely informed by State’s consent. Yet, the current State-centric character of mainstream theory of the sources of international law does not entail that, as a matter of principle, formalism in law-ascertainment must necessarily be assimilated with State’s intent,62 like those found in the work of pre-modern international legal scholars and classicists.63 It will be shown in the following chapters that formalism does not mean that law exclusively emanates from the State, as formalism is indifferent as to the actual material source 64 of law. Indeed, formal law-ascertainment criteria can well lead to the identification of certain norms as legal rules despite the fact that they do not originate in the will of States. For instance, in the pluralized contemporary international legal system, it would be entirely conceivable for law to emanate from non-State entities, while its identification remains conducted upon the basis of formal criteria.65 While formalism—as it is construed here—does not bestow a law-ascertainment role on State’s consent, the reverse is certainly true too. Consent alone does not automatically involve the use of any formal law-ascertaining criterion.66 For instance, when they are construed as being a (p.24) manifestation of implicit State’s consent,67 customary rules are not ascertained by virtue of formal criteria.68
The need to distinguish between formalism and State’s consent explains why the conception of formalism advocated in this book does not prejudge the identity of the actors from whom the law emanates. The argument made in this book is thus not averse to the theoretical possibility of international legal rules made by non-State entities. It must again be repeated that formalism as law-ascertainment is simply indifferent regarding the material source of law. It is only concerned about how law is identified, no matter who or what may have been the primary norm-making force.
Formalism and formal law-making processes
Formal law-ascertainment is sometimes associated with the existence of a formal procedure through which a rule is made.69 According to this view, a rule can only have a proper existence in the legal system concerned—and hence yield any effect therein—if the procedural forms prescribed by that system for a rule to be a legal rule have been respected.70 Yet, it will be shown in the following chapters that, as far as formal ascertainment of international legal rules is concerned, such a conception of formalism is too restrictive and cannot be generalized in the theory of the sources of international law. International legal rules are—and should be able to be—identified by virtue of formal criteria even though their making has not been subject to a formal procedure. This is well-illustrated by the flourishing practice of agreements in simplified forms which are discussed below.71 It will nonetheless be shown that material and procedural aspects of law-making procedures can sometimes provide useful indicators supplementing formal law-identification yardsticks.72
(p.25) Formalism as a general descriptive theory of international law
Formalism is often associated—mostly by its critics—with a general descriptive theory of international law. In that sense, it is thought to provide a (commonly inadequate) approach to delineate the whole phenomenon of law, and make sense of how international law is made and why it is complied with.73 In the following chapters, I do not construe formalism as a tool to describe how law is made or and how law generates a sense of obligation. International law is a complex phenomenon that can certainly not be reduced to formal ascertainment mechanisms. In particular, there is little doubt that formal law-ascertainment does not suffice to describe the intricate phenomenon of the making of international law. Likewise, although—as I will subsequently explain—formal law-ascertainment is an indispensable condition for the authority of international law,74 formal law-ascertainment does not, in itself, suffice to generate a sense of obligation.75 There is much more that is needed for a rule that has been ascertained by virtue of formal indicators to generate a sense of obligation among its addressees. Formalism is more modestly construed here as a theory to distinguish between law and non-law by virtue of formal indicators, irrespective of the ‘shared understandings’76 which have generated the rule concerned and whether or not they actually generate compliance.
Formalism and legal positivism
Formalism is also often conflated with legal positivism.77 This is not utterly accidental, since legal positivists have not only commonly defended formalism in legal argumentation,78 but have also usually been the most fervent supporters of formalism in the ascertainment of legal rules.79 Indeed, legal positivist theorists have (p.26) adhered to a strict formal law-ascertaining blueprint, i.e. the so-called source thesis. As was explained above, the source thesis provides that law is determined by its source and that, as a result, identifying the law boils down to a pedigree test.80
Although legal positivists have traditionally promoted the use of formalism for law-ascertainment purposes,81 formalism is but one of the many tenets of legal positivism.82 Accordingly, they ought to be distinguished.83 In defending formal law-identification, this book falls short of supporting legal positivism as a whole.
Besides the fact that formalism constitutes only one of the aspects of legal positivism, there is another reason why the defence of formalism attempted in this book must be severed from the debate about legal positivism. The debate about legal positivism in general legal theory or in the international legal scholarship manifests so many different, if not conflicting, meanings of positivism—even among legal positivists themselves84—that the debate about legal positivism has proved almost unfathomable and unintelligible.85 Likewise, positivism has often been faulted for positions which were, to a very large extent, straw men,86 thereby further clouding scholarly discussions about the exact tenets of legal positivism. The criticisms of legal positivism thus cannot be transposed to formalism.87 Because of the extreme (p.27) difficulty of reaching any consensus on the meaning of positivism, this book does not engage with the current debates about the relevance of legal positivism.88 Instead, I explore the ontology of formalism in law-ascertainment irrespective of the school of thought that had earlier championed it. For this reason, the promotion of formalism attempted in this book should not be construed as an endeavour to revive legal positivism as a whole in the international legal scholarship. Only if positivism is reduced to the source and social theses can the following chapters be perceived as making a plea for a refreshed positivist take on international law.89
The ‘culture of formalism’
Martti Koskenniemi’s plea for a ‘culture of formalism’ is well-known.90 This aspect of his work—which is not devoid of irony—has singled him out among scholars affiliated with critical legal studies and deconstructivism because such a plea has been perceived as an endeavour to soften some of the effect of deconstruction.91 It is not necessary to describe here the infinite variety of strands in the scholarship affiliated to deconstructivism and critical legal studies. A brief account of such doctrines will be provided when I describe how deconstructivism and critical legal studies impacted on the theory of the sources of international law in chapter 4.92 Yet, it is important at this stage to emphasize that the formalism in the theory of the sources of international law advocated in this book can certainly not be conflated with the culture of formalism famously put forward by Koskenniemi, although both ideas share some common characteristics.
It must be acknowledged that Koskenniemi’s culture of formalism is not easy to fathom. Indeed, in his published work, he has always remained rather terse and concise when it comes to the specifics of that notion. I must thus resist the temptation of (mis)reading his words so as to make them fit into the argument (p.28) defended in this book. Nonetheless, from Koskenniemi’s own work and the interpretations thereof,93 this culture of formalism can be understood as a ‘culture of resistance to power, a social practice of accountability, openness, and equality whose status cannot be reduced to the political positions of any one of the parties whose claims are treated within it’.94 In particular, this culture of formalism, while still premised on the idea of an impossibility of the universal, represents the possibility of universal legal argumentation as it avoids the dangers of imperialism by remaining empty, while seeking to preserve the possibility for alternative voices to be heard and make claims about the deficiencies of the law. In that sense, it is opposed to the formalism in legal argumentation95 and must be construed as a ‘regulative ideal’96 or a necessary unattainable ‘horizon’.97 According to Koskenniemi, this culture of formalism necessarily accompanies the ‘critique’ of law, for it is what protects the critique from being hijacked by those who previously instrumentalized the law in order to conceal their political goals while preserving the possibility of a universal debate. This is why the culture of formalism is a cornerstone of Koskenniemi’s project, as it invites international lawyers, once they have laid bare the subjectivity of their claim, to focus on the universality of all legal claims.
Koskenniemi’s culture of formalism—like the formalism discussed here—is not a tool that dictates the outcome of legal reasoning or provides a ready-made solution for political questions to which the law is applied. It rather is a practice or a communicative culture which aspires to the universality of legal arguments for the sake of equality and openness. Only those legal claims which could also be held against ourselves would be valid. The culture of formalism is thus an ‘interpretative safeguard’.98 Surely, this type of practice does not materialize itself in any kind of indicator—like the formalism put forward in this book. Although the conception of formalism discussed in this book and the abovementioned culture of formalism are thus very distinct, it is my firm belief, as is further explained in chapters 4, 6, and 7, that Koskenniemi’s culture of formalism does not collide with the use of formal indicators in the sources of international law. Indeed, the use of such formal indicators does not prevent the debate about—and the critique of—law and (p.29) allow alternative voices to be heard. In facts, the formalism advocated here equally aspires—although via a radically different path—to making of international legal claims through a common platform. If understood along the lines suggested in this book, formalism in the theory of the sources of international law simply allows these debates to take place by ensuring that they are conducted on the basis of a shared—albeit formal—vocabulary. It is thus instrumental in the existence of an open political debate about law and, ultimately, power. Because the conception of formalism discussed in this book and Koskenniemi’s culture of formalism are, in my view, not, as a matter of principle, incompatible, the latter occasionally provides relevant insights for the argument made in the following chapters.
2.2 Rationale of Formalism in the Theory of the Sources of International Law
As explained above, international legal scholars have been increasingly inclined to move away from formal law-ascertainment.99 In so doing, they have espoused approaches that either bypass the question of the ascertainment of legal rules or ground it in effect- (or impact-)based or process-based theories.100
While coming to terms with the limits of formalism, this book advocates the preservation of some elementary formalism for the reasons which are spelled out here. These various underpinnings of formal law-ascertainment constitute—what I call—the politics of formalism. The main argument for defending and modernizing formalism in law-ascertainment lies in its contribution to the normative character of international law, i.e. the ability of international law to provide identifiable commands to its addressees. In that sense, it will be argued that preserving the normative character of international law is not a self-justifying purpose because preserving normativity helps bolster the authority, legitimacy, and efficacy of international law. Equally important are the consequences of formal law-ascertainment in terms of the ability of the international legal scholarship to generate a meaningful debate. Formalism in law-ascertainment simultaneously contributes to the preservation of the possibility of a critique of international legal rules. It also is contended that formalism can be instrumental in reinforcing the rule of law in the international legal system. Formal law-ascertainment may eventually be sought to serve additional purposes which will be briefly mentioned.
The necessity of preserving the normative character and authority of international law
Even though various virtues can be attributed to formalism in law-ascertainment, I advocate some elementary formal law-ascertainment in international law as a necessary condition to preserve the normative character of international law, in that uncertainty regarding the existence of international legal rules prevents them from (p.30) providing for meaningful commands.101 Indeed, in the absence of these elementary formal standards of identification, I submit that actors are not able to anticipate—and thus adapt to—the effects (or lack thereof) produced by the rule in question. Likewise, short of any formal law-ascertainment criteria, law-applying authorities will be at pains to evidence the applicable law to the cases submitted to them, which in turn will further diminish the ability of actors to anticipate the effects (or lack thereof) of the rule concerned. As a result, the rule that cannot be clearly ascertained will fall short of generating any change in the behaviour of its addressees.102 This is why it is argued here that the impossibility of drawing a distinction between law and non-law would irremediably strip international legal rules of their normative character.
While this book is premised on the—rather simple—idea that international law needs to rest on a minimum consensus over some elementary formal standardization in order for international legal rules to remain normative, I must emphasize that I do not mean to elevate normativity to a constitutive element of international law. Normativity is certainly not a distinctive feature of law. Normativity is found in other social systems and law does not have the monopoly of normativity. In that sense, the argument made here departs from those positivist103 as well as constructivist104 accounts that understand the normative sufficiency of rules as a constitutive element of their legal character. In the view adopted here, the normative character of international legal rules is not a necessary condition for them to be legal rules. If the normative character of international law is not a constitutive element of law as is argued here, one may wonder why this book holds the preservation of the normative (p.31) character of international legal rules in such a high importance. I thus need to explain why, in my view, the normativity of international law ought to be safeguarded.
First, I contend that preserving the normativity is not only of doctrinal importance105 as it fundamentally bears upon the ability of international law to fulfil most of the functions assigned to it.106 Indeed, many of the functions that can be assigned to international law—and, irrespective of my distinctive jurisprudential point of view, I do not want to prejudge many of them here107—presuppose that international law retains sufficient meaning to be capable of instructing the actors subjected to it. Second, I am of the opinion that normativity ought to be supported if international law is to retain some authority.108 The authority of law can, itself, be divided into two different sub-questions, namely that of compliance with international law by its addressees,109 and that of the authority of international lawyers (p.32) within norm-making processes and political establishments.110 Formalism in legal argumentation—albeit the object of severe criticisms—is often seen as fostering these two facets of the authority of international law by backing away from naturalistic underpinnings of the authority of law.111 It is not coincidental in this regard that classical Kantian formalism was aimed at toning down natural law with a view to enhancing the authority of law.112
Yet, what is true with respect to formalism in legal argumentation also applies to formalism in law-ascertainment. Indeed, it seems hard to deny that, if international law cannot be normative because of the difficulty in ascertaining its rules, the authority of international law can be gravely enfeebled.113 It is precisely one of the reasons why constitutionalist theories of international law—which are examined below114—have been supportive of formalism in law-ascertainment.115 It can thus be reasonably argued that, because it contributes to shoring up the normative character of international law, formal law-ascertainment helps bolster its authority.116 This does not mean, however, that formal law-ascertainment, in itself, suffices to generate a sense of obligation.
(p.33) The question of the authority of law, whilst providing a fascinating research agenda117 by virtue of the permanent crisis of authority of international law,118 lies outside the ambit of the inquiry undertaken here. As a result, this work does not prejudge the seminal theories that have been devised in connection with the authority of international law, like, for instance, Franck’s fairness theory of law,119 Bodansky’s legitimacy theory,120 Brunnée and Toope’s interactional account,121 Onuf’s122 or Kratochwil’s123 constructivist accounts of the authority of law, Posner’s sceptical account of legalism,124 or the relevance of the methods used to capture the impact of law on decision-making processes that were devised by the scholars of the International Legal Process (ILP), who have inquired into the role of law in affecting the course of international affairs.125 The same is true with respect to modern natural law theory, which is not necessarily incompatible with a formalist understanding of law-identification as will be further explained below.126
(p.34) The significance of scholarly debates about international law
As I have explained elsewhere, it seems that contemporary scholarly debates in the field of international law have grown more cacophonic, for scholars often talk past each other.127 Indeed, I believe that international legal scholars have lost sense of the elementary standards that make it possible to distinguish between law and non-law. It is as if the international legal scholarship had turned into a cluster of different scholarly communities, each of them using different criteria for the ascertainment of international legal rules. Such a growing cacophony can be traced back to the lack of consensus over how to identify international legal rules. I argue that formalism not only preserves the normative character of law but also helps international legal scholars share a common language as to what constitutes law, thereby preventing the international legal scholarship from becoming completely meaningless. In other words, I believe that the use of formal standards to ascertain international legal rules, although it does not do away with the inevitable indeterminacy of rules, helps to preserve the significance of scholarly debates about international law and prevent them from becoming a henhouse or a Tower of Babel.
It is true that other disciplines have also manifested a similar cacophony in the ascertainment of their objects of study. They classically have tried to offset it by resorting to specific methodologies whereby each academic work takes pains to systematically and continuously (re)define its vocabulary. It is defended here that such a methodological posture, however, does little to alleviate the absence of consensus on the criteria to identify the subject-matter of one’s discipline. Even if international legal scholars were to clearly and systematically spell out how they ascertain international legal rules in each of their academic pieces, this would not automatically allow their studies to connect with one another, for each of them would still continue to resort to different law-ascertainment criteria and, hence, grapple with radically different kinds of materials or phenomena. In the light of the foregoing, formalism in law-ascertainment can thus also be justified by the need to preserve the significance of the debates within international legal scholarship.128
The possibility of a critique of international legal rules
Besides preserving the environment where a critique of law can take place, it is argued here that formal law-ascertainment of international legal rules is also a necessary condition for the critique itself. Even though it does little to determinate the whole phenomenon of law—and especially the content of legal rules—and only partake in the identification of legal rules, formalism in law-ascertainment allows the possibility of a critique of law in the (p.35) first place. Indeed, any critique of law—whether moral, economic, political, etc—presupposes that international rules be preliminarily ascertained. Formal ascertainment of international legal rules allows norms to be evaluated. Short of any ascertainment, there simply is no critique possible for lack of object.129 It should nonetheless be made clear that, while being a necessary condition for the critique of law, formalism does not, however, provide for the yardstick or the standard of evaluation of that critique. The standard of evaluation is entirely relative, for it stems from the critique concerned and not from law-ascertainment criteria.
The formal identification of law not only preserves the possibility of a critique but also helps safeguard the usefulness of our evaluations of the current state of the law. Indeed, the deformalization of law-ascertainment witnessed in the contemporary theory of the sources of international law, because it can obfuscate the actual absence of legal rules or their insufficient development, dims the—sometimes acute—necessity of lobbying for the adoption of new rules or the change of the existing ones.130 Such a deformalization simultaneously gives the impression that legal reform may be achieved in law faculties and tribunals and not in parliaments, governing bodies of international organizations, and international inter-governmental law-making fora. This is why it is contended here that formalism in law-identification allows a more effective channelling and use of our evaluations and criticisms of the current state of international law.
The international rule of law
Another weighty reason why formalism in law-ascertainment can be promoted lies in the sustainability of the rule of law in the legal system concerned.131 In this sense, formalism can be construed as the indispensable condition for ensuring that the framework within which rules are ascertained through formal procedure lives up to the rule of law.132 Indeed, for law to be a substitute to unbridled arbitrary power, clear law-ascertaining criteria are needed.133 By the same token, it does not seem (p.36) unreasonable to claim that the impossibility of ascertaining legal rules with sufficient certainty permits a high degree of subjectivity in the identification of the applicable law,134 thereby allowing addressees of rules to more easily manipulate the rules.135
This is the argument also made by constitutionalist legal scholars,136 whose theory will be examined in chapter 3.137 International legal constitutionalist approaches are premised on the necessity of some elementary formal standards to ascertain the law. According to that view, short of formal law-ascertaining standards, no system can sustain the rule of law. Even though in the following chapters I depart from some of the tenets of the constitutionalist readings of international law,138 it seems to me undisputable that the rule of law can hardly be realized without some elementary law-ascertaining standards. The ascertainment-avoidance strategies in which some States deliberately engage to preserve their freedom of action139—and which allow some glaring manipulations of international legal rules—are particularly obvious in the case of customary international law which, as will be demonstrated in chapter 7, is identified by virtue of non-formal criteria.
Other potential grounds for preserving formal law-ascertainment
The question of the viability of legal systems has always been a central concern of legal theory. For instance, it has been contended that a legal system whose rules are systematically left unenforced would probably grow unviable.140 This issue has also (p.37) been discussed in connection with immoral rules,141 especially since Hart’s famous reference to the minimum content of natural law, which—in my view—was the object of much misunderstanding.142 Likewise, the argument has been made in the literature that, short of any elementary law-ascertainment yardsticks, a legal system would prove unviable. This last aspect is certainly worthy of mention here. Indeed, it could be argued that formalism at the level of law-ascertainment contributes to the viability of the international legal system.143 This contention is certainly not unreasonable, for it cannot be totally excluded that a legal system lacking any clear law-identification standards, on top of failing to generate meaningful indications to those subjected to it, could be beset by insufficiencies affecting its viability. The argument made here, while not ignoring this point, does however not necessitate that this possible rationale of formalism be further discussed.
Formal law-ascertainment is sometimes also promoted as allowing the realization of the formal unity of international law.144 This conception of the unity of international law has been subject to various and diverging conceptualizations.145 It is true that, if international legal rules are identified on the basis of a unified standardized pedigree, they can be seen as belonging to a single set of rules. Such a set of rules can be construed as an order or a system, this distinction—more common in the French and German scholarship—referring to the question whether international law is not a ‘random collection of such norms’ and whether there are ‘meaningful relationships between them’.146 The argument made here is irrespective of the contribution of formal law-ascertainment to the systemic unity of international law although there seems to be little doubt that the former is conducive to the latter.
(1) On the source thesis, see generally J. Raz, ‘Legal Positivism and the Sources of Law’, in J. Raz, The Authority of Law: Essays on Law and Morality (Clarendon, Oxford, 1983) 37–52.
(2) M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (CUP, Cambridge, 2005) 189; N. Purvis, ‘Critical Legal Studies in Public International Law’ (1991) 32 Harvard JIL 81, 84.
(3) See infra 5.1.
(4) On the evidentiary processes before international courts, see generally H. Ruiz Fabri and J.-M. Sorel (eds), La preuve devant les jurisdictions internationales (Pedone, Paris, 2007); see also A. Riddell and B. Plant, Evidence before the International Court of Justice (British Institute of International and Comparative Law, London, 1999); P. Kinsch, ‘On the Uncertainties surrounding the Standard of Proof in Proceedings before International Courts and Tribunals’, in G. Venturini and S. Bariatti (eds), Individual rights and international justice—Liber Fausto Pocar (Giuffrè, Milan, 2009) 427–42.
(5) See the analysis of the case-law of the ICJ on the ascertainment of international agreements, infra 7.2.3 and 7.2.4.
(6) Cfr infra 7.1 and 7.2.1.
(7) For a similar distinction between the ascertainment of customary international rules and the evidence of customary international rules, see P. Daillier, M. Forteau, and A. Pellet, Droit international public (8th edn, LGDJ, Paris, 2009) 364.
(8) See e.g. J. d’Aspremont, ‘Non-State Actors in International Law: Oscillating Between Concepts and Dynamics’ in J. d’Aspremont (ed), Participants in the International Legal System—Multiple Perspectives on Non-State Actors in International Law (Routledge, London, 2011) 1. See also J. d’Aspremont, ‘Regulating Statehood: The Kosovo Status Settlement’ (2007) 20(3) LJIL 649–68.
(9) On the question of definition, identification and conceptualization of international organizations, see the illuminating article of C. Brölmann, ‘A Flat Earth? International Organizations in the System of International Law’, in International Organizations, Series: Library of Essays in International Law (Ashgate, Farnham, 2006) 183–206; from the same author, see The Institutional Veil in Public International Law—International Organisations and the Law of Treaties (Hart, Oxford, 2007) 11–22.
(10) It has even been argued that with respect to questions of personality, continuity, and identity, formalism should be resisted. See especially M. Craven, The Decolonization of International Law (OUP, Oxford, 2007) 216–31.
(11) For contemporary developments and some diverging perspectives on the role and status of the various participants in the international legal system, irrespective of their being a subject of international law, see J. d’Aspremont (ed), Participants in the International Legal System—Multiple Perspectives on Non-State Actors in International Law (Routledge, London, 2011).
(12) See generally G. Abi-Saab, ‘Cours général de droit international public’ (1987) 207 RCADI 9–463, 68; See also, M. Kohen, ‘Introduction’, in M. G. Kohen (ed), Secession. International Law Perspectives (CUP, Cambridge, 2006) 4, 6, and 19–20.
(13) See contra J. Beckett, ‘Countering Uncertainty and Ending Up/Down Arguments: Prolegomena to a Response to NAIL’ (2005) 16 EJIL 213–38, 217 (who argues that we must chose a general theory of law first before being able to engage in the ascertainment of legal rules).
(14) For a more ambitious attempt to describe the ‘complete phenomenon of law’ with the help of formalism, see M. Bos, A Methodology of International Law (T.M.C. Asser Instituut, Amsterdam/NY/Oxford, 1984) 2.
(15) This is a traditional criticism levelled against formalism which is said to fail to explain how law generates a sense of obligation. See e.g. J. Brunnée and S.J. Toope, Legitimacy and Legality in International Law. An Interactional Account (CUP, Cambridge, 2010) especially 46–52.
(16) See J. Beckett, ‘Behind Relative Normativity: Rules and Process as Prerequisites of Law’, (2001) 12 EJIL 627–50. See also J. Beckett, ‘Countering Uncertainty and Ending Up/Down Arguments: Prolegomena to a Response to NAIL’ (2005) 16 EJIL 213, 217.
(17) On the illusion of formalism behind the principles of interpretation of international law, see infra 7.1.
(18) O. Corten, Méthodologie du droit international public (Editions de l’Université de Bruxelles, Brussels, 2009) 213–14.
(19) Cfr infra 7.2.3.
(20) See infra 3.1.3 and 3.1.4.
(21) It has also been referred to as the ‘exclusive internal point of view’. See G.P. Fletcher, ‘Law as a Discourse’ (1992) 13 Cardozo L. Rev. 1631, 1634.
(22) H.L.A. Hart, The Concept of Law (2nd edn, OUP, Oxford, 1997) 108–9. For a recent re-appraisal of Hart’s relevance in international legal scholarship, see J. d’Aspremont, ‘Hart et le Positivisme Postmoderne’ (2009) 113 Revue générale de droit international public 635–54.
(23) See infra 8.3.
(24) Fragmentary—and sometimes diverging—transpositions of Hart’s Concept of law in international law have already been undertaken, especially with respect to customary international law. See the work G.H.J. Van Hoof, Rethinking the Sources of International Law (Kluwer Law, The Hague, 1983); G.M. Danilenko, Law-Making in the International Community (Martinus Nijhoff, Dordrecht, 1993) 16; G.M. Danilenko, ‘The Theory of International Customary International Law’ (1998) 31 German YBIL 9–47. H. Meijers, ‘How is International Law Made?—The Stage of Growth of International Law and the Use of Its Customary Rules’ (1979) 9 NYIL 3; R.M. Walden, ‘Customary International Law: A Jurisprudential Analysis’ (1978) 13 Israel L. Rev. 86–102. See also the general course of P.-M. Dupuy, ‘L’unité de l’ordre juridique international—Cours général de droit international public’ (2002) 297 RCADI9–490. Although her theory has some natural law overtones, see also S. Besson, ‘Theorizing the Sources of International Law’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (OUP, Oxford, 2010) 163, 180–5.
(25) See infra 3.1.4.
(26) See B. Tamanaha, A General Jurisprudence of Law and Society (OUP, Oxford, 2001); see also B. Tamanaha, ‘The Contemporary Relevance of Legal Positivism’, St John’s University School of Law, Legal Studies Research Paper Series, Paper #07-0065 (January 2007).
(27) Twining acknowledges that he has himself been very widely influenced by Tamanaha. See W. Twining, General Jurisprudence: Understanding Law from a Global Perspective (CUP, Cambridge, 2009) 94–5.
(28) See eg. B. Tamanaha, A General Jurisprudence of Law and Society (OUP, Oxford, 2001) 142.
(29) See N. Onuf, World of Our Making: Rules and Rules in Social Theory and International Relations (University of South Carolina Press, South Carolina, 1989); N. Onuf, ‘The Constitution of International Society’ (1994) 5 EJIL 1, 6; N. Onuf, ‘Do Rules Say What They Do? From Ordinary Language to International Law’ (1985) 26 Harvard JIL 385. On the defence by constructivists of some of the main theses of positivism, see B. Kingsbury, ‘The International Legal Order’, IILJ Paper Series, 19. For a criticism of constructivism, see J.H.H. Weiler, ‘The Geology of International Law—Governance, Democracy and Legitimacy’ (2004) 64 ZaöRV 547, 560.
(30) Constructivists like Nicholas Onuf also borrow from the philosophy of language, in particular the work of John Searle, eg. J. Searle, Speech Acts (CUP, Cambridge, 1969)and J. Searle, Expression and Meaning (CUP, Cambridge, 1979), with a view to devising a taxonomy of international rules. See N. Onuf, ‘Do Rules Say What They Do? From Ordinary Language to International Law’ (1985) 26 Harvard JIL 385.
(31) The influence of Wittgenstein on Hart has nonetheless been the object of diverging opinions. See e.g. the debate on the extent of the influence of Wittgenstein and Austin on Hart’s concept of law between Timothy Endicott and Nicos Stavropoulos, ‘Hart’s Semantics’, in J. Coleman (ed), Hart’s Postscript: Essays on the Postscript to ‘The Concept of Law’ (OUP, Oxford, 2001) 41 and 59 respectively. The influence of Wittgenstein on Hart has also been qualified by N. Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (OUP, Oxford, 2004) 218.
(32) M. Koskenniemi, ‘Constitutionalism as a Mindset: Reflections on Kantian Themes about International Law and Globalization’ (2007) 8 Theoretical Inquiries in Law (2007) 13.
(33) The expression is from M.H. Kramer, In Defense of Legal Positivism: Law Without Trimmings (OUP, Oxford, 2007) 49 (when discussing the critique of positivism as a whole); see F. Shauer, ‘Positivism as Pariah’, in R.P. George (ed) The Autonomy of Law: Essays of Legal Positivism (OUP, Oxford, 1996) 31–56.
(34) See e.g. C.C. Goetsch, ‘The Future of Legal Formalism’ (1980) 24 Am. J. Legal Hist. 221. See also E.J. Weinrib, ‘Legal Formalism’, in D. Patterson (ed), A Companion to Philosophy of Law and Legal Theory (Blackwell Publishers Ltd, Oxford, 1999) 332–42. See also the remarks of O. Corten, Méthodologie du droit international public (Editions de l’Université de Bruxelles, Brussels, 2009) 57.
(35) See E.J. Weinrib, ‘Legal Formalism: On the Immanent Rationality of Law’ (May 1988) 97(6) Yale L. J. 949–1016; S.V. Scott, ‘International Law as Ideology: Theorizing the Relationship between International Law and International Politics’ (1994) 5 EJIL 313–25, especially 322. See also the remarks of Koskenniemi, ‘What is International Law For?’ in M. Evans (ed), International Law (2nd edn, OUP, 2006) 57, 69.
(36) Such a binary understanding of formalism is found in the Concept of Law. Hart construes formalism and rule-scepticism as the ‘Scylla and Charybdis of justice theory’ and rejects both of them. See The Concept of Law (2nd edn, OUP, Oxford, 1997) 124–54. See also the remarks of Judge Ad Hoc Sur in his separate opinion appended to the Order of 28 May 2009 in ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Rec. 2009, available at 〈http://www.icj-cij.org〉.
(37) See the remarks of A.-C. Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’ (2009) 22 LJIL 1–28, 7–8. It should be made clear that in some strands of the legal scholarship no distinction is made between a legal order and a legal system. On this point, see J. d’Aspremont, ‘Hart et le positivisme postmoderne’ (2009) 113 Revue générale de droit international public 635–54.
(38) This has been insightfully described by D. Kennedy, ‘When Renewal Repeats: Thinking Against the Box’ (2000) 32 NYU JILP 335–500, 335. It is interesting to note that such a finding had already been made by Hart. See Hart, The Concept of Law (2nd edn, OUP, Oxford, 1997) 130.
(39) A.J. Sebok, ‘Misunderstanding Positivism’ (1995) 93 Mich. L. Rev. 2054, 2093.
(40) D. Kennedy, The Rise and Fall of Classical Legal Thoughts (re-edited in 2006, Beard Books, Washington DC) at xviii.
(41) This is the famous expression of Roscoe Pound, ‘Mechanical Jurisprudence’ (1908) 8 Colum. L. Rev. 605.
(42) See also the criticisms of R.H. Pildes, ‘Conflicts Between American and European Views: The Dark Side of Legalism’ (2003–2004) 44 Va. J. Int’l L. 145.
(43) On the realist criticisms of formalism as a theory of legal reasoning in adjudication, see generally A.J. Sebok, ‘Misunderstanding Positivism’ (1995) 93 Mich. L. Rev. 2054 especially 2071. See also infra 4.1.2.
(44) This understanding permeates the critique of positivism by B. Kingsbury ‘The International Legal Order’, NYU Law School Public Law & Legal Theory Research Paper No. 01–04 (2003); Institute for International Law and Justice (IILJ) History and Theory of International Law Series, Working Paper No. 2003/1.
(45) See e.g. R. Higgins, ‘Policy Considerations and the International Judicial Process’ (1968) 17 ICLQ 58; M. Reisman, ‘The View from the New Haven School of International Law’ (1992) 86 ASIL Proceedings 118; L. Chen, ‘Perspectives from the New Haven School’ (1993) 87 ASIL Proceedings 407, 408.
(46) See e.g. D. Kennedy, ‘The Disciplines of International Law and Policy’ (1999) 12 LJIL 84; D. Kennedy, ‘When Renewal Repeats: Thinking Against the Box’ (2000) 32 NYU JILP 335. M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CUP, Cambridge, 2002) 502. M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (CUP, Cambridge, 2005) 306. N. Purvis, ‘Critical Legal Studies in Public International Law’ (1991) 32 Harvard JIL 81–127, 81; T. Skouteris, ‘Fin de NAIL: New Approaches to International Law and its Impact on Contemporary International Legal Scholarship’ (1997) 10 LJIL 415; T. Skouteris, The Notion of Progress in International Law Discourse (LEI Universiteit, Leiden, 2008), chapter 3, later published as The Notion of Progress in International Law Discourse (T.M.C. Asser, The Hague, 2010). For a similar interpretation of formalism from the vantage point of critical legal studies, see I. Scobbie, ‘Towards the Elimination of International Law: Some Radical Scepticism about Sceptical Radicalism’ (1990) 61 BYBIL 339–62, 345.
(47) H.L.A. Hart, ‘American Jurisprudence through English Eyes: The Nightmare and the Noble Dream’ (1976–1977) 11 Ga. L. Rev. 969, especially 978–89.
(48) For an attempt to move away from this old-style of legal positivism in the international legal scholarship, see J. d’Aspremont and J. Kammerhofer (eds), International Legal Positivism in a Postmodern World (CUP, Cambridge, 2012) (forthcoming).
(49) For some critical views on that sort of positivism in the European tradition of international law, see E. Jouannet, ‘French and American Perspectives on International Law: Legal Cultures and International Law’ (2006) 58 Maine L. Rev. 292.
(50) For an outline of some strands of the Asian legal scholarship, see J. d’Aspremont, ‘International Law in Asia: the Limits to the Constitutionalist and Liberal Doctrines’ (2008) 13 Asian YBIL 89–111.
(51) See generally A.J. Sebok, ‘Misunderstanding Positivism’ (1995) 93 Mich. L. Rev. 2054–132. See also M. Tushnet, ‘Critical Legal Studies: A Political History’ (1991) 100 Yale L. J. 1515–44. Some of these schools of thought are analyzed infra 4.2.
(52) For a similar distinction, see J. Beckett, ‘Behind Relative Normativity: Rules and Process as Prerequisites of Law’ (2001) 12 EJIL 627–50, especially 629; J. Beckett, ‘Countering Uncertainty and Ending Up/Down Arguments: Prolegomena to a Response to NAIL’ (2005) 16 EJIL 213, 217.
(53) It is sometimes contended that interpretation is solely a constitutive element of legal practice and argumentation but not a constitutive element of the identification of law, for interpretation necessarily takes place within a pre-established framework. Hence, interpretation is only a secondary or parasitic operation. In that sense, interpretation ‘repairs the fabric of understanding’ and ‘enables practice to go on’. It is only a therapeutic activity. See D. Patterson, ‘Wittgenstein and Constitutional Theory’ (1993–1994) 72 Tex. L. Rev. 1837; D. Patterson, ‘Wittgenstein on Understanding and Interpretation’ (2006) 29 Philosophical Investigations 129–39; D. Patterson, ‘Interpretation of Law’ (2005) 42 San Diego L. Rev. 685. The argument made here does not go as far as claiming that law-ascertainment can be entirely severed from interpretation. However, it is argued that law-ascertainment can grow more autononous from the interpretation of the content of law.
(54) This perception permeates very different strands of contemporary legal scholarship. See e.g. A. Carty, ‘Conservative and Progressive Visions in French International Legal Doctrine’ (2005) 16 EJIL 525–37; D. Kennedy, ‘The Sources of International Law’ (1987) 2 Am. U. J. Int’l L. & Pol’y 1, 20. D. Kennedy, ‘When Renewal Repeats: Thinking Against the Box’ (2000) 32 NYU JILP 335, 355, 366. J. Brunnée and S.J. Toope, ‘An Interactional Theory of International Legal Obligation’, University of Toronto Legal Studies Research Series, No. 08–16, July 2008, 31–3, available at 〈http://ssrn.com/abstract=1162882〉; On this association, see the remarks of O. Elias and C.L. Lim., The Paradox of Consensualism in International Law (Kluwer Law International, The Hague, 1998) especially 193 or the remarks by O. Corten, Méthodologie du droit international public (Editions de l’Université de Bruxelles, Brussels, 2009) 53–4 and 58.
(55) A. Carty, ‘Conservative and Progressive Visions in French International Legal Doctrine’ (2005) 16 EJIL 525–37.
(56) The Lotus case, PCIJ, Ser. A, No. 10, 1927.
(57) For some early criticisms, see J.-L. Bierly ‘The “Lotus” Case’ (1928) 44 LQR 154; C. de Visscher, ‘Justice et médiation internationales’ (1928) 9 RDILC 33, 77–8; J. Verzijl, ‘L’affaire du “Lotus” devant la Cour permanente de Justice internationale’ (1928) 9 RDILC 1. For some famous contentions that contemporary international law has allegedly moved away from the principle established in the Lotus case, see the declaration of Judge Bedjaoui and the opinion of Judge Shahabuddeen appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Rep. (1996) 268. and 394–6. More recently, see the declaration of Judge Simma appended to the Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 22 July 2010, 1–3, available at 〈http://www.icj-cij.org〉. However, the Lotus case could equally be interpreted as the start of a new era where a previous unbridled freedom comes to be checked by international law and can thus be interpreted as being a more progressive decision than what is usually argued. On this point, see the comments of O. Spiermann, International legal argument in the Permanent Court of International Justice, The Rise of the International Judiciary (CUP, Cambridge, 2005) 248–63. See also O. Spiermann, ‘A Permanent Court of International Justice’ (2003) 72 Nord. J. Int’l. L. 399, 410–12 (citing M. Huber at the Institut de Droit international, in (1931) 36 Annuaire de l’Institut de Droit international 79); see also A. Pellet, ‘Lotus que de sottises on profère en ton nom!: remarques sur le concept de souveraineté dans la jurisprudence de la Cour mondiale’, in Edwige Belliard (ed), Mélanges en l’honneur de Jean-Pierre Puissochet: l’État souverain dans le monde d’aujourd’hui (Pedone, Paris, 2008) 215–30. On other misinterpretations of the CPIJ decision in the Lotus case, see J. d’Aspremont, ‘Unilateral v. Multilateral Exercises of Universal Criminal Jurisdiction’ (2010) 43 Israel L. Rev. 301–29.
(58) For criticism of voluntarism, see generally G. Fitzmaurice, The General Principles of International Law (1957-II) 92 RCADI 1–227, 36; A. Pellet, ‘The Normative Dilemma: Will and Consent in International Law-Making’ (1988–1989) 12 Aust. YBIL 22, 26.
(59) See e.g. M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (CUP, Cambridge, 2005) 303–87. A. Carty, ‘Conservative and Progressive Visions in French International Legal Doctrine’ (2005) 16 EJIL 525–37, especially 534.
(60) Using the distinction between the question of the sources of law and the question of the foundations of law, R. Kolb makes the same argument. See R. Kolb, Réflexions de philosophie du droit international. Problèmes fondamentaux du droit international public: Théorie et Philosophie du droit international (Bruylant, Brussels, 2003) 51; See also S. Besson, ‘Theorizing the Sources of International Law’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (OUP, Oxford, 2010) 163, 166. To S. Besson, however, consent is insufficient to ensure the authority and legitimacy of international legal rules, see S. Besson, ibid, 166 and 175. In the same vein, see N. Krisch, Beyond Constitutionalism—The Pluralist Structure of Postnational Law (OUP, Oxford, 2010) 3. See contra D. Lefkowitz, ‘The Sources of International Law: Some Philosophical Reflections’, in S. Besson and J. Tasioulas (eds), ibid, 187, 192–94.
(61) The conflation between formalism and consensualism has long been rejected by normativist approaches to international law, as is illustrated by H. Kelsen. On the conception of formalism, see infra 3.1.3. In the same vein, see also S. Besson, ‘Theorizing the Sources of International Law’, in S. Besson and J. Tasioulas (eds), ibid, 163, 166.
(62) For similar criticisms of the association of the source doctrine and consensualism, see G.J.H. Van Hoof, Rethinking the Sources of International Law (Kluwer Law, The Hague, 1983) 289. See also M. Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21 EJIL 967, 970–1.
(63) Cfr infra 3.2.1.
(64) On the distinction between material and formal sources, see generally L. Oppenheim, International Law, vol. 1 (8th edn, Longmans, London, 1955) 24. See the remarks of P.E. Corbett, ‘The Consent of States and the Sources of the Law of Nations’ (1925) 5 BYBIL 20–30; C. Rousseau, Principes généraux du droit international public, tome 1 (Paris, Pedone, 1944) 106–8; G. Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’, in Symbolae Verzijl (Martinus Nijhoff, The Hague, 1958) 153. G. Abi-Saab, ‘Les sources du droit international. Essai de déconstruction’, in Le Droit international dans un monde en mutation: liber amicorum en hommage au Professeur Eduardo Jimenez de Arechaga (Fundación de Cultura Universitaria, Montevideo, 1994)30; See also the controversial account of this distinction made by G. Scelle, ‘Essai sur les sources formelles du droit international’, in Recueil sur les sources en l’honneur de Francois Gény vol. III (Paris, Sirey, 1935) 400–30. P. Dailler and A. Pellet, Droit international Public (6th edn, LGDJ, Paris, 1999) 111–12; A. Pellet, ‘Article 38’, in A. Zimmermann, C. Tomuschat, and K. Oellers-Frahm (eds), The Statute of the International Court of Justice (OUP, Oxford, 2002) 677, 714–16.
(65) On this aspect of the pluralization of international law and the role of non-State actors, see J. d’Aspremont (ed), Participants in the International Legal System—Multiple Perspectives on Non-State Actors in International Law (Routledge, London, 2011).
(66) For a criticism of this portrayal of the 19th century and its use as progress narrative tool, see D. Kennedy, ‘International Law and Nineteenth Century: History of an Illusion’ (1996) 65 Nord. J. Int’l L. 385.
(67) Anzilotti, Scritti di diritto internazionale pubblico (Cedam, Padova, 1956–7) 1, 38. See also H. Triepel, Völkerrecht und Landesrecht (Scientia Verlag, Aalen, 1899) 95. G.I. Tunkin, The Theory of International Law (Harvard UP, Cambridge, 1974) 124. C. Chaumont, ‘Cours général de droit international public’ (1970) 129 RCADI 333, 440. For an attempt to modernize the consensual conception of customary international law, see A. Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (OUP, Oxford, 2008) 70–107.
(68) On the ascertainment of customary rules, see infra 7.1 and 7.2.1.
(69) J. Salmon (ed), Dictionnaire de droit international public (Bruylant, Brussels, 2001) 516.
(70) A variant of this understanding of formalism provides that the jurisdiction of international judicial bodies is made strictly dependent on the fulfilment of a formal procedure. International courts have usually backed away from this type of formalism. See PCIJ, The Mavrommatis Palestine Concessions, Greece vs. Britain, judgment of 30 August 1924, Ser. A., No. 2, 1924, 34 (‘The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law. Even, therefore, if the application were premature because the Treaty of Lausanne had not yet been ratified, this circumstance would now be covered by the subsequent deposit of the necessary ratifications’). In the same vein, see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment on the preliminary objections, of 11 July 1996, ICJ Rep. (1966) para. 26. More recently, see the Joint Declaration of Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade, and Yusuf appended to the case concerning Ahmadou Sadio Diallo (Republic of Guinea v.Democratic Republic of the Congo), 30 November 2010, available at 〈http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=7a&case=103&code=gc &p3=4〉.
(71) Cfr infra 7.1.
(72) Cfr infra 7.2.4 and 7.3.1.
(73) J. Brunnée and S.J. Toope, Legitimacy and Legality in International Law. An Interactional Account (CUP, Cambridge, 2010) 46–52.
(74) Cfr infra 2.2.
(75) In that sense, I concur with Brunnée and Toope, that formalism offers only limited guidance in analysing how (the sense of) obligation is created in international law. See J. Brunnée and S.J. Toope, Legitimacy and Legality in International Law. An Interactional Account (CUP, Cambridge, 2010) 34 and 46.
(77) See for instance, G.J.H. Van Hoof, Rethinking the sources of international law (Kluwer Law, The Hague, 1983) 283 (positivism being labelled an ‘analytical approach’ to the sources of international law); J. Salmon (ed), Dictionnaire de droit international public (Bruylant, Brussels, 2001) 516; to some extent, the same association is made by J. Beckett, ‘Behind Relative Normativity: Rules and Process as Prerequisites of Law’ (2001) 12 EJIL 627–50. See also J. Brunnée and S.J. Toope, ‘International Law and Constructivism: Elements of an International Theory of International Law’ (2000) 39 Colum. J. Transnat’l L. 19, 22 or J. Brunnée and S.J. Toope, Legitimacy and Legality in International Law. An Interactional Account (CUP, Cambridge, 2010) 46.
(78) See contra H.L.A. Hart, ‘American Jurisprudence through English Eyes: The Nightmare and the Noble Dream’ (1976–1977) 11 Ga. L. Rev. 969, especially 978–89. See also the account of the work of J. Bentham infra 3.1.2.
(79) In international legal scholarship, see e.g. A. Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (OUP, Oxford, 2008) 51–60. See also the examples infra 3.2.
(80) On the concept of the source thesis, cfr supra 2.1.1.
(81) See the account made by G.P. Fletcher, Basic Concepts of Legal Thought (OUP, Oxford, 1996) 37–8.
(82) On the difference between formalism and legal positivism, see A.J. Sebok, ‘Misunderstanding Positivism’ (1995) 93 Mich. L. Rev. 2054–132.
(83) M. Koskenniemi concurs with this idea. See M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (CUP, Cambridge, 2005) 191; see also B. Simma and A. Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’ (1999) 93 AJIL 302, 307.
(84) Compare e.g. the five meanings of positivism by Hart in ‘Positivism and the Separation of Law and Morals’ (1958) 71(4) Harv. L. Rev. 593–629 with the three meanings of positivism of N. Bobbio in Essais de théorie du droit (Bruylant/LGDJ, Paris, 1998) 24. See the understanding of positivism of L. Oppenheim, ‘The Science of International Law: Its Task and Method’ (1908) 2 AJIL 313, especially 326 and 333. See also the definition of positivism provided by N. Onuf, ‘Global Law-Making and Legal Thought’, in N. Onuf (ed), Law-Making in the Global Community (Carolina Academic Press, Durham, 1982) 1–13. See the various meanings of positivism referred to in J. Salmon (ed), Dictionnaire de droit international public (Bruylant, Brussels, 2001) 852–4.
(85) W. Twining, General Jurisprudence: Understanding Law from a Global Perspective (CUP, Cambridge, 2009) 25; G. Pino, ‘The Place of Legal Positivism in Contemporary Constitutional States’ (1999) 18 Law and Philosophy 513–36; See also F. Chevrette and H. Cyr, ‘De Quel Positivisme Parlez-vous?’, in L. Rolland and P. Noreau (eds), Mélanges Andrée Lajoie (Themis, Montreal, 2008) 33–60; See also M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (CUP, Cambridge, 2005) 131, note 258.
(86) For such an example of a criticism of positivism, see H. Morgenthau, ‘Positivism, Functionalism and International Law’ (1940) 34 AJIL 260, especially 261–3.
(87) Legal positivism has been the object of systematic condemnation in American jurisprudence. See e.g. J. Boyle, ‘Ideals and Things: International Legal Scholarship and the Prison-house of Language’ (1985) 26 Harv. Int’l L. J. 327. Concerning the debate about positivism, see the remarks of N. Onuf, ‘Global Law-Making and Legal Thought’, in N. Onuf (ed), Law-Making in the Global Community (Carolina Academic Press, Durham, 1982) 1, 5. On the negative implication of the use of the term ‘positivism’ in the literature, see G. Gaja, ‘Positivism and Dualism in Dionisio Anzilotti’ (1992) 3 EJIL 123. For some exceptions in American international legal scholarship, see A. Somek, ‘Kelsen Lives’ (2007) 18 EJIL 409–51.
(88) A direct attempt to engage with the debate about the relevance of international legal positivism is carried out in J. d’Aspremont and J. Kammerhofer (eds), International Legal Positivism in a Postmodern World (CUP, Cambridge, 2012) (forthcoming).
(89) I have espoused such a restricted conception of legal positivism elsewhere. See J. d’Aspremont, ‘Hart et le positivisme postmoderne’ (2009) 113 Revue générale de droit international public 635–54; see also J. d’Aspremont, ‘Non-state actors from the perspective of legal positivism’, in J. d’Aspremont (ed), Participants in the International Legal System—Multiple Perspectives on Non-State Actors in International Law (London, Routledge, 2011) 23.
(90) See the famous plea of M. Koskenniemi for a culture of formalism. See M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CUP, Cambridge, 2002) 502–9. M. Koskenniemi, ‘What is International Law For?’, in M. Evans (ed), International Law (2nd edn, OUP, Oxford, 57) 69–70. See also M. Koskenniemi, and C. Schmitt, ‘Hans Morgenthau and the Image of Law in International Relations’, in M. Byers (ed), The Role of Law in International Politics: Essays in International Relations and International Law (OUP, Oxford, 2000) 17, 32–3.
(91) He has been categorized as a mild ‘crit’ for attempting to domesticate deconstruction. On the distinctive aspects of the critical legal project of Martti Koskenniemi, see e.g. J.A. Beckett, ‘ “Rebel Without a Cause” Martti Koskenniemi and the Critical Legal Project’ (2006) 7 German Law Review 1045, 1065. Such attempts to domesticate deconstruction have long been the object of criticisms in general legal theory. See e.g. P. Schlag, ‘ “Le Hors de Texte, C’est Moi”—The Politics of Form and the Domestication of Deconstruction’ (1990) 11 Cardozo L. Rev. 1631.
(92) See infra 4.2.4.
(93) Among others, see E. Jouannet, ‘Présentation critique’, in M. Koskenniemi, La Politique du Droit International (Paris, Pedone, 2007) 32–3. See also Ignacio de la Rasilla del Moral, ‘Martti Koskenniemi and The Spirit of the Beehive in International Law’ (2010) 10 Global Jurist; J. von Bernstorff, ‘Sisyphus was an international lawyer. On M. Koskenniemi’s “From Apologia to Utopia” and the place of law in international politics’ (2006) 7 German Law Journal 1015, 1029–31; J.A. Beckett, ‘ “Rebel Without a Cause” Martti Koskenniemi and the Critical Legal Project’ (2006) 7 German Law Review 1045; See also the book review of M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 by Nicholas Tsagourias (2003) 16 LJIL 397, 398–9.
(94) M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CUP, Cambridge, 2002) 500.
(95) Cfr supra 2.1.2.
(96) M. Koskenniemi, ‘What is International Law For?’, in M. Evans (ed), International Law, (2nd edn, OUP, Oxford, 2006) 57, 70.
(97) M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CUP, Cambridge, 2002) 508.
(98) J. Beckett, ‘ “Rebel Without a Cause?” Martti Koskenniemi and the Critical Legal Project’ (2006) 7 German Law Review 1045, 1070.
(99) Cfr supra 1.1.
(100) Cfr supra 1.1 and infra 5.1.
(101) In the same vein, see H.L.A. Hart, The Concept of Law (2nd edn, OUP, Oxford, 1997) 124. Hart borrows from J.L. Austin the speech-act theory and the claims of the latter regarding the performative function of language, a notion that can be understood in Hart’s view by recognizing that ‘given a background of rules or conventions which provide that if a person says certain words then certain other rules shall be brought into operation, this determines the function, or in a broad sense, the meaning of the words in question’. See H.L.A. Hart, ‘Jhering’s Heaven of Concepts and Modern Analytical Jurisprudence’, reproduced in Hart’s Collected Essays in Jurisprudence and Philosophy (Clarendon, Oxford, 1983) 265, 274–6.
(102) J. Hathaway, ‘American Defender of Democratic Legitimacy’ (2000) 11 EJIL 121, 128–9. Although he embraces a relative normativity, M. Goldmann also pleads for some formalization in the identification of alternative instruments of law with a view to preserving its normative character. See ‘Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority’ (2008) 9 German Law Journal 1865, 1879 (‘The operator with an internal perspective cannot wait until the instrument causes certain effects, is being complied with or not, before he or she makes a judgment about its legal quality that will allow him or her to determine the conditions for its validity and legality….Only by way of formal criteria the operator within a legal system may anticipate the legal quality of the instrument he or she intends to adopt and apply the legal regime provided by international institutional law for instruments of this kind. Formal criteria would enable the identification and classification of an instrument before its “normative ripples”’).
(103) Interestingly, this is also what H.L.A. Hart seems to imply. See The Concept of Law (2nd edn, OUP, Oxford, 1997) 124. This is what I defended elsewhere as well. See J. d’Aspremont, ‘Les dispositions non-normatives des actes juridiques conventionnels’ (2003) 36 Revue Belge de Droit International 492.
(104) N. Onuf, ‘Do Rules Say What They Do? From Ordinary Language to International Law’ (1985) 26 Harvard JIL 385.
(105) For an account of the necessity of preserving law-ascertainment for reasons pertaining to the preservation of international law as a proper field of study, see F. Kratochwil, Rules Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (CUP, Cambridge, 1989) 205.
(106) D. Lefkowitz, ‘The Sources of International Law: Some Philosophical Reflections’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (OUP, Oxford, 2010) 187, 195. For a review of some of the most important functions that international law can play, see D.M. Johnston, ‘Functionalism in the Theory of International Law’ (1988) 26 Canadian YBIL 3, especially 25.
(107) In that sense my argument also departs from that of Prosper Weil (see P. Weil, ‘Towards Relative Normativity in International Law’ (1983) 77 AJIL 413, especially 420–1) and bears some limited resemblance to that of M. Koskenniemi (M. Koskenniemi, ‘What is International Law For?’, in M. Evans (ed) International Law (2nd edn, OUP, Oxford, 2006) 57, 57. For a rebuttal of the idea that Koskenniemi expresses a total disinterest for the question of the functions of international law, see J. Beckett, ‘Countering Uncertainty and Ending Up/Down Arguments: Prolegomena to a Response to NAIL’ (2005) 16 EJIL 213.
(108) In the same sense, G.M. Danilenko, Law-Making in the International Community (Martinus Nijhoff, Dordrecht, 1993) 21. Although he phrased it in terms of effectiveness, A. Orakhelashvili seems to be of the same opinion. See A. Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (OUP, Oxford, 2008) 51. S. Besson is more reserved as to the impact of sources of international law on the authority of international legal rules—a debate she phrases in terms of ‘normativity’. She, however, recognizes that validity—a debate she phrases in terms of ‘legality’—is an important part of the legitimacy of international law. See S. Besson, ‘Theorizing the Sources of International Law’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (OUP, Oxford, 2010) 163, 174 and 180. Although contending that formal law-identification is insufficient to ensure the authority of international law, J. Brunnée and S.J. Toope argue that the distinction between law and non-law is fundamental to preserve it. See J. Brunnée and S.J. Toope, Legitimacy and Legality in International Law. An Interactional Account (CUP, Cambridge, 2010) 46.
(109) For a survey of the recent developments in the study of compliance in both international relations and international law scholarship, see K. Raustiala and A.-M. Slaughter, ‘International Law, International Relations and Compliance’, in W. Carlnaes, T. Risse, and B. Simmons (eds), The Handbook of International Relations (Sage Publications, London, 2002) 538–58. For an insightful account of various compliance theories, see A.T. Guzman, ‘A Compliance-Based Theory of International Law’ (2002) 90 Calif. L. Rev. 1823. From the same author see A.T. Guzman, How International Law Works: A Rationale Choice Theory (OUP, Oxford, 2008) and the comments of N. Petersen, ‘How Rational is International Law’ (2010) 20 EJIL 1247–62. See also the recent empirical contribution of M. Scharf on the contemporary theories of compliance, ‘International Law in Crisis: A Qualitative Empirical Contribution to the Compliance Debate’ (2009) 31 Cardozo L. Rev. 45.
(110) On the question of the authority of law, see generally, V.A. Wellman, ‘Authority of Law’, in D. Patterson (ed), A Companion to Philosophy of Law and Legal Theory (Blackwell Publishers Ltd, Oxford, 1999) 573–82.
(111) D. Kennedy, ‘A New Stream of International Legal Scholarship’ (1988) 7 Wisconsin Int’l L. J. 29. See also J. Brunnée and S.J. Toope, ‘International Law and Constructivism: Elements of an International Theory of International Law’ (2000) 39 Colum. J. Transnat’l L. 19. In different terms, this also seems to be expressed by S.V. Scott, ‘International Law as Ideology: Theorizing the Relationship between International Law and International Politics’ (1994) 5 EJIL 313–25; M. Koskenniemi, ‘What is International Law For?’, in M. Evans (ed) International Law (2nd edn, OUP, Oxford, 2006) 57, 69. N. Purvis, ‘Critical Legal Studies in Public International Law’ (1991) 32 Harvard JIL 81, 109; D. Shelton, Commitment and Compliance, The Role of Non-Binding Norms in the International Legal System (OUP, Oxford, 2000); see also T. Skouteris, The Notion of Progress in International Law Discourse (LEI Universiteit, Leiden, 2008) 134, later published as The Notion of Progress in International Law Discourse (T.M.C. Asser, The Hague, 2010).
(112) See the remarks of M. Koskenniemi, ‘Formalism, Fragmentation, Freedom’ (2007) 4 NoFo 7–9. See also the remarks of G. Fletcher, ‘Why Kant’ (1987) 87 Colum. L. Rev. 421. On Kant and International Law, see generally A. Perreau-Saussine, ‘Immanuel Kant on International Law’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (OUP, Oxford, 2010) 53–75. See also P. Capps and J. Rivers, ‘Kant’s Concept of International Law’ (2010) 16 Legal Theory 229.
(113) C. Tomuschat, ‘International law: ensuring the survival of mankind on the eve of a new century: general course on public international law’ (1999) 281 RCADI 9–438, 26–9; This also seems to be indicated by K. Raustiala, ‘Form and Substance in International Agreements’ (2005) 99 AJIL 581.
(114) Cfr infra 3.2.3.
(115) See e.g. A. Peters, ‘Global Constitutionalism Revisited’ (2005) 11 International Legal Theory 39, 49; J. Klabbers, ‘Constitutionalism Lite’ (2004) 1 IOLR 31, 47; Although he analyses this question through the prism of positivism, this also is the opinion of A. Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (OUP, Oxford, 2008) 53.
(116) The normative character of international law being one of Thomas Franck’s four parameters for the legitimacy of law and hence a factor contributing to a better compliance with international legal rules, formalism in the theory of the sources of international law could be seen as parameter of the legitimacy of international law. See generally T.M. Franck, The Power of Legitimacy Among Nations (OUP, Oxford, 1990). T.M. Franck, ‘Fairness in the International Legal and Institutional System’ (1993) 240-III RCADI 13, chapter 2; T.M. Franck, Fairness in International Law and Institutions (OUP, Oxford, 1995) chapter 2. On the relationship between legitimacy and compliance, see J.H.H. Weiler, ‘The Geology of International Law—Governance, Democracy and Legitimacy’ (2004) 64 ZaöRV 547; see also S. Besson, ‘Theorizing the Sources of International Law’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (OUP, Oxford, 2010) 163, 173–78.
(117) See e.g. B. Kingsbury, ‘The International Legal Order’ in P. Cane and M. Tushnet (eds), Oxford Handbook of Legal Studies (OUP, Oxford, 2003) 271–97; D. Shelton, Commitment and Compliance, The Role of Non-Binding Norms in the International Legal System (OUP, Oxford, 2000); M. Koskenniemi, ‘What is International Law For?’, in M. Evans (ed), International Law (2nd edn, OUP, Oxford, 2006) 57, 69; T. Skouteris, The Notion of Progress in International Law Discourse (LEI Universiteit, Leiden, 2008) chapter 3, later published as The Notion of Progress in International Law Discourse (T.M.C. Asser, The Hague, 2010); S.V. Scott, ‘International Law as Ideology: Theorizing the Relationship between International Law and International Politics’ (1994) 5 EJIL 313–25. See more generally J. Finnis, ‘On the Incoherence of Legal Positivism,’ in M. Patterson (ed), Philosophy of Law and Legal Theory: An Anthology (Blackwell, Oxford, 2004) 134, 142.
(118) On the permanent character of the authority crisis of international law, see generally A. Orford, ‘The Destiny of International Law’ (2004) 17 LJIL 442.
(119) T.M. Franck, Fairness in International Law and Institutions (OUP, Oxford, 1995); T.M. Franck, The Power of Legitimacy Among Nations (OUP, Oxford, 1990); T. Franck, ‘The Legitimacy of the International Legal System’ (1998) 82 AJIL 751.
(120) D. Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’ (1999) 93 AJIL 596.
(121) See J. Brunnée and S.J. Toope, Legitimacy and Legality in International Law. An Interactional Account (CUP, Cambridge, 2010).
(122) N. Onuf ‘Do Rules Say What They Do? From Ordinary Language to International Law’ (1985) 26 Harv. Int’l L. J. 385, 397–402.
(123) F. Kratochwil, Rules Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (CUP, Cambridge, 1989) 124.
(124) E. Posner, The Perils of Global Legalism (University of Chicago Press, Chicago, 2009).
(125) A. Chayes, T. Ehrlich, and A.F. Lowenfeld, International Legal Process (Little Brown & Co., Boston, 1968). See M. Ellen O’Connell, ‘New International Legal Process’ (1999) 93 AJIL 334. See also H.H. Koh, ‘Why Do Nations Obey International Law?’ (1999) 106 Yale J. Int’l L. 2599 and H.H. Koh, ‘Bringing International Law Home’ (1998) 35 Houston L. Rev. 623. For an attempt to use Koh’s theory for law-ascertainment purposes, see H.G. Cohen, ‘Finding International Law: Rethinking the Doctrine of Sources’ (2007) 93 Iowa L. Rev. 65. See more generally the presentation by M.E. O’Connell, Legal Process School, Max Planck Encyclopedia of Public International Law, available at 〈http://www.mpepil.com〉.
(126) See e.g. the discussion infra 4.1.1. about Fuller’s criteria for the inner morality of law which do not contradict formal law-ascertaining criteria, for their objective is not to ascertain law but simply to ascertain its authority.
(127) I already made this point in J. d’Aspremont, ‘Softness in International Law: A Rejoinder to Tony D’Amato’ (2009) 20 EJIL 911–17. See also J. d’Aspremont, ‘La doctrine du droit international face à la tentation d’une juridicisation sans limites’ (2008) 112 Revue générale de droit international public 849–66.
(128) Compare with the analytical conceptualism as methodology advocated by M. Bos which seeks to address the same concern but through other means. See M. Bos, A Methodology of International Law (T.M.C. Asser Instituut, Amsterdam/NY/Oxford, 1984) especially 1–35.
(129) W. Twining, General Jurisprudence: Understanding Law from a Global Perspective, (CUP, Cambridge, 2009) 27; J.S. Boyle, ‘Positivism, Natural Law and Disestablishment: Some Questions Raised by MacCormick’s Moralistic Amoralism’ (1985–1986) 20 Valaparaiso University Law Review 55; A. Buchanan, Justice, Legitimacy and Self-Determination. Moral Foundations for International Law (OUP, Oxford, 2007) 21.
(130) In the same vein, see W.M. Reisman, ‘The Cult of Custom in the Late 20th Century’ (1987) 17 Cal. W. Int’l L. J. 133, 136.
(131) On the Rule of Law in international law, see generally Société Française pour le Droit International, L’Etat de droit en droit international: Colloque de Bruxelles (Paris, Pedone, 2007). On the various meanings of the rule of law in the context of international law, see A. Nollkaemper, ‘The Internationalized Rule of Law’ (2009) 1 HJLR 74–8.
(132) This point is irrespective of who is entitled to the rule of law. See the argument of J. Waldron, according to whom States are not entitled to the rule of law. J. Waldron, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’, NYU Public Law and Legal Theory Research Paper Series, 09–01 (2009) 2. See the reaction of A. Somek, ‘Defective Law’, University of Iowa Legal Studies Research Paper No. 10–33 (2010) 5.
(133) N. Onuf, ‘The Constitution of International Society’ (1995) 5 EJIL 1–19, especially 13; F. Schauer, ‘Formalism’ (1998) 97 Yale L. J. 509; A.L. Paulus, ‘International Law After Postmodernism’ (2001) 14 LJIL 748; B. Cheng, ‘On the Nature and Sources of International Law’, in B. Cheng (ed), International Law: Teaching and Practice (Stevens, London, 1982) 203, 206; D. Lefkowitz, ‘The Sources of International Law: Some Philosophical Reflections’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (OUP, Oxford, 2010) 187, 195; See also the introductory remarks of H. Charlesworth, ‘Human Rights and the Rule of Law After Conflict’, in P. Cane (ed), The Hart-Fuller Debate Fifty Years On (Hart, Oxford, 2010) 43, 44.
(134) See generally J. Raz, ‘The Rule of Law and its Virtue, in J. Raz (ed), The Authority of Law—Essays on Law and Morality (Clarendon, Oxford, 1979) 210, 215–16.
(135) In the same vein, see G.M. Danilenko, Law-Making in the International Community, (Martinus Nijhoff, Dordrecht, 1993) 16–17. See also J. Hathaway, ‘American Defender of Democratic Legitimacy’ (2000) 11 EJIL 121, 128–29.
(136) C. Tomuschat, ‘General Course on Public International Law’ 26–9. On this aspect of constitutionalism, see the remarks of J. Klabbers, ‘Constitutionalism and the Making of International Law’ (2008) 5 NoFo 84, 85 and 103.
(137) See infra 3.2.3.
(138) I have already expressed some disagreement with the constitutionalist understanding of international law in J. d’Aspremont, ‘The Foundations of the International Legal Order’ (2007) 18 FYBIL 219–55; J. d’Aspremont and Fr. Dopagne, ‘Two Constitutionalisms in Europe: Pursuing an Articulation of the European and International Legal Orders’ (2009) 68 ZaÖRV 939–78; J. d’Aspremont, ‘International Law in Asia: the Limits to the Western Constitutionalist and Liberal Doctrines’ (2008) 13 Asian YBIL 89–111.
(139) See the account made by C. Lipson of the practice of deformalization and practice and the benefits thereof. C. Lipson, ‘Why are some international agreements informal’ (1991) 45 International Organization 495, especially 501.
(140) A. D’Amato, ‘What “Counts” as Law?’ in N.G. Onuf (ed), Law-Making in the Global Community (Carolina Academic Press, Durham, 1982), 83, 85–6. See B. Tamanaha’s assumption that a legal system may exist despite the fact that an overwhelming majority of those subjected to the rules live in general disregard of the vast bulk of them. B. Tamanaha, A General Jurisprudence of Law and Society (OUP, Oxford, 2001) 142–8. According to Tamanaha, the requirement of general obedience does not correspond to social reality.
(142) See The Concept of Law (2nd edn, OUP, Oxford, 1997) 193–200 and (1958) 71 Harv. L. Rev. 593, 622–3. The reference to the minimum concept of natural law has often been the object of misunderstanding. It has, for instance, been conflated with a criterion of law-ascertainment. For an illustration of a misuse of Hart’s minimum content of natural law as requiring some morality in law to be obligatory, see K.E. Himma, ‘Hart and Austin Together Again for the First Time: Coercive Enforcement and Theory of Legal Obligation’, available at SSRN: 〈http://ssrn.com/abstract=727465〉. For additional critical remarks, cfr infra 3.1.3 and 4.1.1.
(143) This argument has been made by C. Tomuschat, ‘International law: ensuring the survival of mankind on the eve of a new century: general course on public international law’ (1999) 281 RCADI 9–438, 26–9; G. Abi-Saab, ‘Cours général de droit international public’ (1987–III) 207 RCADI 9–463, 35. See also R. Jennings, ‘The Identification of International Law’ in B. Cheng (ed), International Law: Teaching and Practice (Stevens, London, 1982) 3, 3.
(144) See generally P.-M. Dupuy, ‘L’unité de l’ordre juridique international: cours général de droit international public (2002) 297 RCADI 9–490.
(145) For a survey of the various conceptions of the formal unity of international law, see Mario Prost, Unitas multiplex—Les unités du droit international et la politique de la fragmentatiebom, McGill University, Montreal, 2008, 165, available at 〈http://digitool.library.mcgill.ca/〉.
(146) See the conclusion of the Report of the ILC Study Group of the International Law Commission, 18 July 2006, A/CN.4/L.702, para. 14, 7. See also the seminal article of Jean Combacau, ‘Le droit international : bric-à-brac ou système?’ (1986) 31 Archives de philosophie du droit 85–105.