d'Aspremont: The Custom-Making Moment in Customary International Law

Jean d'Aspremont (Sciences Po - Law; Univ. of Manchester - Law) has posted The Custom-Making Moment in Customary International Law (in The Theory and Philosophy of Customary International Law and Its Interpretation, Panos Merkouris, Jörg Kammerhofer, & Noora Arajärvi eds., forthcoming). Here's the abstract:

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This short chapter argues that, in international legal practice and literature, the actual moment where social reality has engendered a customary norm is never established or traced, but, rather, is always presupposed. According to the argument developed here, the moment custom is made is located neither in time nor in space. Custom is always presupposed to have been made through actors’ behaviors at some given point in the past and in a given place but neither the moment nor the place of such behaviors can be found or traced. In other words, there is never any concrete moment where all practices and opinio juris coalesce into the formation of a rule and which could ever be “discovered”. This means that the behaviors actually generating the customary rule at stake are out of time and out of space. Because the custom-making moment is out of time and space, it cannot be located, found, or traced, and it must, as a result, be presumed.

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This brief chapter first sketches out some of the main manifestations of this presumption of a custom-making moment. It then sheds light on some of the discursive consequences of presuming a custom-making moment, including those consequences for the interpretation of customary international law.

Kammerhofer: International Legal Positivist Research Methods

Jörg Kammerhofer (Univ. of Freiburg - Law) has posted International Legal Positivist Research Methods (in Research Methods in International Law: A Handbook, Rossana Delplano & Nicholas Tsagourias eds., forthcoming). Here's the abstract:

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This chapter looks at legal positivism and its methods. In international legal scholarship, we are confronted with a paradox: while most international lawyers would say they employ broadly ‘positivist’ methods to find out what the law prescribes, its methods are among the least reflected. Positivism is seldom practised in a manner that is coherent with the theory of legal positivism. This leads to a bifurcation: default positivism and theoretical positivism.

Default positivism is not a deeply reflected theoretical approach, but rather the default solution. Fealty to the law is important, but not in an overly formalist and strict manner. Default international legal positivism is a result of processes of socialisation and adaption, founded on a largely subconscious culture of orthodoxy: a pragmatic mindset of submission to and accommodation of widely accepted practices and methods. Its methods reflect that mindset and I briefly analyse two: precedent-following and interpretation. On the one hand, the power of precedents in international law (acknowledged not to be a common law) is taken so seriously that arguing against the ICJ is virtually impossible – the ICJ cannot err on an important issue. On the other hand, the role which the Vienna rules on interpretation play is curiously formalistic and does not sit well with the idea of interpretation as finding out what a text means.

Theoretical positivism, using the Pure Theory of Law as an example, is theory-laden and much less pragmatic. It is primarily a theory of how legal scholarship can stay true to the ideal of (legal-)‘scientific’ cognition. Its methods, in turn, are structural analysis and frame-determination. The analysis of the structure of the international legal order, the relationship of different norms and sources is central to any legal-scholarly enterprise and helps to avoid admixing it with ideological precepts. The frame-determination method of interpretation avoids the impossible task of eliminating the vagueness of natural languages and the inevitable freedom to decide. Scholarly interpretation is not an attempt to tell courts how to decide a case, it rather shows the (structural) limits of the law to be applied.

Đorđeska: General Principles of Law Recognized by Civilized Nations (1922-2018)

Marija Đorđeska has published General Principles of Law Recognized by Civilized Nations (1922-2018): The Evolution of the Third Source of International Law Through the Jurisprudence of the Permanent Court of International Justice and the International Court of Justice (Brill | Nijhoff 2020). Here's the abstract:

In General Principles of Law Recognized by Civilized Nations (1922-2018) Marija Đorđeska offers an account of the origins, theory and practical application of the general principles in the jurisprudence of the Permanent Court of International Justice and International Court of Justice between 1922 and 2018. Are general principles rules of international law? What is their relationship to custom and treaties? What are the types of general principles and where do international courts find them? This monograph answers these and other questions and offers a detailed overview of over 150 general principles identified in the jurisprudence of the Permanent Court of International Justice and the International Court of Justice.

Kleinlein: Matters of Interpretation: How to Conceptualize and Evaluate Change of Norms and Values in the International Legal Order

Thomas Kleinlein (Friedrich-Schiller-Universität Jena - Law) has posted Matters of Interpretation: How to Conceptualize and Evaluate Change of Norms and Values in the International Legal Order. Here's the abstract:

This article analyses, from a methodological and theoretical perspective, how international legal method deals with change. Section 2 sets the stage, develops a legal perspective on change of norms and values in the international legal order and distinguishes between structural change and norm change. This is followed in sections 3 and 4 by an examination of doctrinal categories that provide techniques to process change in international legal practice. International legal method is equipped with several techniques to process—and to conceptualize and evaluate—change: ‘Formal’ norm change is a matter of the doctrine of sources. International law can also change ‘informally’ through the shifting meaning of norm texts. Both formal and informal change is a matter of interpretation. Therefore, section 5 aims at theorizing interpretive change. It examines the relationship between the sources of law and legal interpretation as categories of change and analyses theoretical perceptions of interpretive change.

Beham: State Interest and the Sources of International Law: Doctrine, Morality, and Non-Treaty Law

Markus P. Beham (Univ. of Passau - Law) has published State Interest and the Sources of International Law: Doctrine, Morality, and Non-Treaty Law (Routledge 2018). Here's the abstract:

This book addresses the disparity between positive non-treaty law and its scholarly assessment in the area of moral concepts, understood as altruistic as opposed to reciprocal legal obligations. It shows how scholars are generously willing to assert the existence of a rule of international law, thereby moving further away from actual state practice, not taking into account the factors of legal rhetoric and the core survival interests of the state in the formation of custom and general principles of law. The main argument is that such moral concepts can simply not manifest themselves as non-treaty sources of international law from a dogmatic perspective. The reason is the inherent connection between the formation of the non-treaty sources of international law and state interest that makes it difficult, if not impossible, to assess state practice or opinio juris in the case of altruistic obligations. The book further demonstrates this finding by looking at two cases in point: Human rights and humanitarian exceptions to the prohibition of force. As opposed to the majority of existing works on the subject, State Interest and the Sources of International Law takes a bigger-picture approach to a number of distinct problems in international law scholarship by looking at the building blocks of international relations on the one hand, and merging this with sources doctrine on the other.

Roberts & Sivakumaran: The Theory and Reality of the Sources of International Law

Anthea Roberts (Australian National Univ. - School of Regulation & Global Governance) & Sandesh Sivakumaran (Univ. of Nottingham - Law) have posted The Theory and Reality of the Sources of International Law (in International Law, Malcolm Evans ed., 5th ed., forthcoming). Here's the abstract:

The classic starting point for identifying the sources of international law is Article 38 of the Statute of the International Court of Justice. Article 38 famously refers to three sources: treaties, customary international law, and general principles of law; as well as two subsidiary means for determining rules of law, namely judicial decisions and the teachings of publicists. However, Article 38 does not adequately reflect how the doctrine of sources operates in practice because it omits important sources of international law while misrepresenting the nature and weight of others. To appreciate how the doctrine of sources operates in practice, international lawyers need to understand how international law is created through a dialogue among states, state-empowered entities and non-state actors. States are important actors in this process, but they are not the only actors. It is only by understanding this process of dialogue that one can develop a full understanding of the theory – and reality – of the sources of international law.

Dehaussy: Propos sur les sources du droit international

Jacques Dehaussy has published Propos sur les sources du droit international : L'exercice de la fonction normative dans un ordre juridique singulier (Pedone 2017). Here's the abstract:

Pourquoi, dans l’ordre juridique international, les conventions sont-elles sources du Droit alors que, dans tous les autres ordres, elles ne créent que des droits (et des obligations) tirant du Droit leur force obligatoire ? Répondre à cette question conduit l’auteur de cet ouvrage non seulement à faire le constat, mais aussi à tirer toutes les conséquences, en droit positif, de la singularité essentielle que présente cet ordre : il n’a pas d’organes propres. Toutes les fonctions inhérentes à son existence – aujourd’hui unanimement reconnue – sont exercées par les Etats et par les organisations créées par les Etats, agissant par leurs organes.

Ayant, dans un souci didactique, défini les multiples notions impliquées par l’expression métaphorique « sources du Droit », puis celle, spécifique, de « sources du droit international », il examine comment s’exerce, dans cet ordre, de manière par définition fractionnée (et non pas décentralisée), la fonction de création des normes – comment, aussi, un principe de droit international dérivé de la norme pacta sunt servanda (principe général de droit) oblige chaque Etat à rendre exécutoires, dans les rapports des catégories de personnes privées concernées, les normes qu’il a conventionnellement acceptées. En présentant cette conception relativement originale, l’auteur soutient, de manière beaucoup plus large que la doctrine dominante ne le fait, que ces personnes peuvent se voir attribuer un statut (limité) dans l’ordre international.

En cet ordre, aussi bien qu’en tout autre, l’exercice de la fonction normatrice a pour objet premier, nécessairement, la formation des normes qui composent son droit constitutionnel. Dans la seconde Partie de l’ouvrage, partant du constat de la dualité statutaire essentielle de l’Etat, l’auteur s’autorise à énoncer le contenu des normes – normes effectivement appliquées sans qu’il ait été besoin de les formuler – qui, selon lui, constituent ce « droit constitutionnel », y compris la norme fondamentale d’où résulte, en sa version contemporaine, le caractère universel de l’ordre international.

d'Aspremont & Besson: The Oxford Handbook of the Sources of International Law

Jean d'Aspremont (Univ. of Manchester - Law; Sciences Po - Law) & Samantha Besson (Université de Fribourg - Law) have published The Oxford Handbook of the Sources of International Law (Oxford Univ. Press 2017). Contents include:

• Peter Haggenmacher, Sources in the Scholastic Legacy: Ius Naturae and Ius Gentium Revisited by Theologians,
• Annabel S. Brett, Sources in the Scholastic Legacy: The (Re)construction of the Ius Gentium in the Second Scholastic
• Dominique Gaurier, Sources in the Modern Tradition: An Overview of the Sources of the Sources in the Classical Works of International Law
• Randall Lesaffer, Sources in the Modern Tradition: The Nature of Europe's Classical Law of Nations
• Miloš Vec, Sources in the 19th Century European Tradition: The Myth of Positivism
• Lauri Mälksoo, Sources in the 19th Century European Tradition: Insights from Practice and Theory
• Ole Spiermann, The History of Article 38 of the Statute of the International Court of Justice: 'A Purely Platonic Discussion'?
• Malgosia Fitzmaurice, The History of Article 38 of the Statute of the International Court of Justice: The Journey from the Past to the Present
• Monica García-Salmones Rovira, Sources in the Anti-Formalist Tradition: A Prelude to Institutional Discourses in International Law
• Upendra Baxi, Sources in the Anti-Formalist Tradition: 'That Monster Custom, Who Doth All Sense Doth Eat'
• Tony Carty & Anna Irene Baka, Sources in the Meta-History of International Law: A Phenomenological Reversal of Hegel-From Liberal Nihilism and the Anti-Metaphysics of Modernity to an Aristotelian Ethical Order
• Mark Weston Janis, Sources in the Meta-History of International Law: A Little Meta-Theory-Paradigms, Article 38, and the Sources of International Law
• Robert Kolb, Legal History as a Source: From Classical to Modern International Law
• Samuel Moyn, Legal History as a Source: The Politics of Knowledge
• David Lefkowitz, Sources in Legal Positivist Theories: Law as Necessarily Posited and the Challenge of Customary Law Creation
• Jörg Kammerhofer, Sources in Legal Positivist Theories: The Pure Theory's Structural Analysis of the Law
• Jean d'Aspremont, Sources in Legal Formalist Theories: The Poor Vehicle of Legal Forms
• Frederick Schauer, Sources in Legal Formalist Theories: Source Formality, With Special Attention to International Law,
• Ingo Venzke, Sources in Interpretation Theories: The International Law-Making Process
• Duncan B. Hollis, Sources in Interpretation Theories: An Interdependent Relationship,
• Matthias Goldmann, Sources in the Meta-Theory of International Law: Exploring the Hermeneutics, Authority, and Publicness of International Law
• Alexandra Kemmerer, Sources in the Meta-Theory of International Law: Hermeneutical Conversations,
• Iain Scobbie, Legal Theory as a Source: Institutional Facts and the Identification of International Law,
• Alain Papaux & Eric Wyler, Legal Theory as a Source: Doctrine as Constitutive of International Law
• Pierre d'Argent, Sources and the Legality and Validity of International Law: What Makes Law 'International'?
• Mary Ellen O'Connell & Caleb Day, Sources and the Legality and Validity of International Law: Natural Law as Source of Extra-Positive Norms
• Michael Giudice, Sources and the Systematicity of International Law: A Philosophical Perspective
• Gleider I. Hernández, Sources and the Systematicity of International Law: A Co-Constitutive Relationship?
• Erika de Wet, Sources and the Hierarchy of International Law: The Place of Peremptory Norms and Article 103 of the UN Charter Within the Sources of International Law
• Mario Prost, Sources and the Hierarchy of International Law: Source Preferences and Scales of Values
• Detlef von Daniels, Sources and the Normativity of International Law: A Post-Foundational Perspective
• Nicole Roughan, Sources and the Normativity of International Law: From Validity to Justification,
• Richard Collins, Sources and the Legitimate Authority of International Law: A Challenge to the 'Standard View'?
• José Luis Marti, Sources and the Legitimate Authority of International Law: Democratic Legitimacy and the Sources of International Law
• Robert McCorquodale, Sources and the Subjects of International Law: A Plurality of Law-Making Participants
• Bruno de Witte, Sources and the Subjects of International Law: The European Union's Semi-Autonomous System of Sources
• Yuval Shany, Sources and the Enforcement of International Law: What Norms International Law-Enforcement Bodies Actually Invoke?
• Antonios Tzanakopoulos & Eleni Methymaki, Sources and the Enforcement of International Law: Domestic Courts-Another Brick in the Wall?
• Samantha Besson, Sources of International Human Rights Law: How General is General International Law?
• Bruno Simma, Sources of International Human Rights Law: Human Rights Treaties
• Raphaël van Steenberghe, Sources of International Humanitarian Law and International Criminal Law: Specific Features
• Steven R. Ratner, Sources of International Humanitarian Law and International Criminal Law: War Crimes and the Limits of the Doctrine of Sources
• Catherine Redgwell, Sources of International Environmental Law: Formality and Informality in the Dynamic Evolution of IEL Norms
• Jutta Brunnée, Sources of International Environmental Law: Interactional Law
• Jan Klabbers, Sources of International Organizations' Law: Reflections on Accountability
• August Reinisch, Sources of International Organizations' Law: Why Custom and General Principles are Crucial
• Joost Pauwelyn, Sources of International Trade Law: Sources of Law in WTO Dispute Settlement
• Donald H. Regan, Sources of International Trade Law: Understanding What the Vienna Convention Says About Identifying and Using 'Sources for Treaty Interpretation'
• Jorge E. Viñuales, Sources of International Investment Law: Theoretical Foundations of Unruly Practices
• Stephan W. Schill, Sources of International Investment Law: Multilateralization, Arbitral Precedent, Comparativism, Soft Law
• Ingrid B. Wuerth, Sources of International Law in Domestic Law: Domestic Constitutional Structure and the Sources of International Law
• Cedric Ryngaert, Sources of International Law in Domestic Law: Relationship Between International and Municipal Law Sources

d'Aspremont: What Was Not Meant to Be: General Principles of Law as a Source of International Law

Jean d'Aspremont (Univ. of Manchester - Law; Sciences Po - Law) has posted What Was Not Meant to Be: General Principles of Law as a Source of International Law (in Global Justice, Human Rights, and the Modernization of International Law, R. Pisillo Mazzeschi & P. De Sena eds., forthcoming). Here's the abstract:

This paper reflects on the modest role fulfilled by general principles of law in contemporary international legal thought and practice. It submits that the tepidity with which international lawyers have resorted to general principles of law in practice and legal thought — and especially in their expansionist enterprises — is the result of the inability of general principle of law to operate a source of international law. In particular, it is argued here that the miserable fate of general principles of law can be traced back to a choice by early 20th century international lawyers to locate and organize the prevention of non liquet as well as analogical reasoning within the sources of international law. The following will show that the doctrine of sources of international law may not have proved the most adequate framework for the prevention of non liquet and gap-filling function that was bestowed upon general principles of law. It is only once general principles of law come to be construed and deployed in international legal thought and practice as an argumentative technique of content-determination (i.e. a mode of interpretation) and thus not as a source of international law that they have a chance to play a meaningful role in international legal argumentation.

Sivakumaran: Beyond States and Non-State Actors: The Role of State-Empowered Entities in the Making and Shaping of International Law

Sandesh Sivakumaran (Univ. of Nottingham - Law) has posted Beyond States and Non-State Actors: The Role of State-Empowered Entities in the Making and Shaping of International Law (Columbia Journal of Transnational Law, forthcoming). Here's the abstract:

Traditionally, the actors in the international legal system are divided into States and non-state actors; and States are considered to be the ones that make and shape international law. By contrast, this Article argues that there is a third category of actors, namely state-empowered entities, which have been empowered by States to make and shape international law. These entities are not States, but due to their empowerment by States, they are also not non-state actors. Accordingly, they constitute a category in and of themselves. Entities of this type include the International Law Commission, the United Nations Human Rights Committee, and the International Committee of the Red Cross. The making and shaping of international law includes the interpretation, application, and development of the law. States continue to play a role in the making and shaping of international law, for example, through establishing the mandate of the state-empowered entity, feeding their views into the work product of the entity, and assessing the final output of the entity. However, in practice, States rarely engage with the work-product of state-empowered entities and, in failing so to engage, have ceded some of their influence in lawmaking. This silence on the part of States has been treated as acquiescence to the work-product of state-empowered entities and the gap left by the lack of engagement has been filled by other members of the community of international lawyers. The day-to-day making and shaping of international law is thus being done less by States and more by state-empowered entities.

Mälksoo: Sources of International Law in the 19th Century European Tradition: Insights from Practice and Theory

Lauri Mälksoo (Univ. of Tartu - Law) has posted Sources of International Law in the 19th Century European Tradition: Insights from Practice and Theory (in The Oxford Handbook on the Sources of International Law, Jean d’Aspremont & Samantha Besson eds., forthcoming). Here's the abstract:

How were sources of international law seen at a time before the were 'codified' in the Statute of the Permanent Court of International Justice in 1920? Was there a struggle between positivist and natural law ideas as often postulated in the literature? The article examines both the theory and practice of international law in the late 19th century and discusses how we ended up with the catalogue of sources of international law as we currently have it in Article 38 of the Statute of the ICJ.

Scobbie: Legal Theory as a Source: Institutional Facts and the Identification of International Law

Iain Scobbie (Univ. of Manchester - Law) has posted Legal Theory as a Source: Institutional Facts and the Identification of International Law (in The Oxford Handbook on the Sources of International Law, Samantha Besson & Jean d'Aspremont eds., forthcoming). Here's the abstract:

Legal theory provides conceptions of the sources of international law that differ according to time and place. Section 1 employs MacCormick’s explanation of institutional order to frame the ensuing discussion by arguing that conceptual understandings of law, including international law, are socially constructed. Section 2 starts from Austin’s denial that international law possesses the quality of law because international society lacks an ultimate sovereign that is superior to States. It considers the function that sovereignty has played in some explanations of international law and its sources, which raises the significance of State consent. This is explored further in section 3 which focuses on the paradigm shift that Grotius introduced into natural law, and consequently into international law, by substituting consent for theology as its underpinning explanation. Sections 4 and 5 consider 20th century transatlantic variants of natural law. Section 4 examines three influential British theorists — Brierly, Fitzmaurice, and Lauterpacht — each of whom relied on natural law to overcome perceived inadequacies of consent-based positivist theories. Section 5 examines the more instrumentalist naturalism of the New Haven School which endeavoured to ensure the promulgation of American democratic values by emphasizing policy and choice in decision-making. Section 6 draws some, inevitably imperfect, conclusions.

Peña-Neira: Fuentes del Estado de Derecho internacional

Sergio Peña-Neira (Universidad Bernardo O'Higgins - Law) has published Fuentes del Estado de Derecho internacional (Ediciones Olejnik 2016). Here's the abstract:

Las "fuentes" normativo-jurídicas permiten determinar si una norma es jurídica o no. Sin embargo, en el supuesto de la existencia de un Estado de Derecho internacional necesariamente dichas "fuentes" que establecen obligatoriedad en el vínculo jurídico pueden ampliarse más allá de las clásicas del artículo 38 del Estatuto de la Corte Internacional de Justicia. Este libro busca determinar si es posible pensar hoy en fuentes del Derecho internacional público más allá de las fuentes clásicos y definir si es posible reconocerlas como tales en el presente del Derecho internacional público. Es un dato que el mundo se regula por normas jurídicas y Estado de Derecho internacional es un término que se refiere a las normas jurídicas que regulan las relaciones jurídicas internacionales y no a lo que normalmente se asocia, la teoría de Montesquieu sobre el Estado, que en su tiempo y aun hoy no sólo es una teoría sino que causó revolución en el pensar acerca de los Estados nacionales.

Methymaki & Tzanakopoulos: Reflexivity of the Sources and the Enforcement of International Law: Domestic Courts as Sources and Enforcers

Eleni Methymaki (Univ. of Glasgow - Law) & Antonios Tzanakopoulos (Univ. of Oxford - Law) have posted Another Brick in the Wall -- Reflexivity of the Sources and the Enforcement of International Law: Domestic Courts as Sources and Enforcers (in The Oxford Handbook on the Sources of International Law, Samantha Besson & Jean d’Aspremont eds., forthcoming). Here's the abstract:

What is the role of domestic courts in the ideal continuum commencing from sources (where the law begins its life) and ultimately ending at the enforcement of the law in a specific case? Where, if anywhere, do they fit in this continuum? Put differently, are domestic court decisions a cause (source) or an effect (enforcement) of international law? What we argue in this essay is that enforcement of international law is reflexive, rather than reactive. Reflexitvity is defined as a circular relationship between cause and effect, and there is indeed such a circular relationship — a ‘feedback loop’ — between the sources of international law and its enforcement: neither of the two can be finally identified as the ultimate cause or the ultimate effect. There is thus no real continuum, with domestic courts occupying this or that position on it. Rather, domestic court decisions are both part of the cause (sources) and of the effect (enforcement) of international law. The enforcement of a rule of law in a specific case constitutes, in accordance with the sources doctrine, yet another brick in the wall of that same ever-changing rule. And given the increasingly important position that domestic courts are assuming in the enforcement of international law, they become ever more important agents of development of that law, reinforcing their position in the doctrine of sources.

Kemmerer: Sources in the Meta-Theory of International Law: Hermeneutical Conversations

Alexandra Kemmerer (Max Planck Institute for Comparative Public Law and International Law) has posted Sources in the Meta-Theory of International Law: Hermeneutical Conversations (in The Oxford Handbook on the Sources of International Law, Samantha Besson & Jean d’Aspremont eds., forthcoming). Here's the abstract:

A meta-theoretical approach to sources opens reflexive spaces, situates theories in time and space, and allows for a contextual interpretation of sources. In this paper, drawing on the hermeneutic philosophy of Hans-Georg Gadamer and the writings of his most perceptive readers in international law, I develop a concept of reflexive situatedness prompting a constructive contextualization of sources and their interpreters in our ‘normative pluriverse’ (d’Aspremont). Following the traces of international law’s current ‘turn to interpretation’ and a reading of international law as a ‘hermeneutical enterprise’, my assessment of the limits and potentials of Gadamerian philosophical hermeneutics prepares the ground for an analysis of the writings of international lawyers who have developed theories of international legal interpretation inspired by his work — and, in particular, for a closer look at the writings of Outi Korhonen, linking her concept of situationality to an emphasis on context(s) that engages with the rhetorical dimension of Gadamer’s work. Gadamer’s conversational hermeneutics opens new perspectives for a contextual theory and praxis of international legal interpretation that brings together various disciplinary perspectives and cultural experiences, and thereby allows for a more nuanced and dynamic understanding of sources and their interpreters within their respective interpretative communities.