Jean d'Aspremont

Wording in International Law

Since the demise of philosophical foundationalism and that of the Aristotelian idea of an inner meaning of words, scholarship about international law is no longer perceived as a mining activity geared towards the extraction of pre-existing meaning. Rather, international legal scholarship is in a state of fierce competition for persuasiveness and semantic authority. This does not elevate persuasiveness into the determinant of legality, nor does it lead to a total rejection of the internal point of view. The configuration of that competition for naming is informed by the current structure (and the membership) of the interpretative community of international law. In this competition for naming, words constitute semantic weaponry. Mention is made here of uses of words in international law to create textual economy, generate semantic instability, rough out and hone scholarly ideas, enhance textual aesthetics, yield empiricism, create straw men and preserve the argumentative character of scholarly idea, gratify oneself, boost fame and careers, and intimidate peers. It is also argued that there is nothing to rein in in the use of such semantic tactics in the interpretative community of international law, for paradigmatic revolution is meant to be permanent. It is only if international legal scholars were to lose their social identity that the competition for naming and the interpretative community of international law would vanish altogether.

The Public Good of Academic Publishing in International Law

This piece has been written as an editorial of the Leiden Journal of International Law. It seeks to entice (self-) reflection on the public good at the heart of academic publishing. It argues that, in the intricate social process from information to knowledge, law journals constitute an essential medium and that the public good of law journals like LJIL primarily boils down to their contribution to the crystallization of information and opinions in legal knowledge. This means that law journals, like LJIL, are constitutive parts of the assembly line for the validation as knowledge of information and opinions about international law. Yet, the digital age has come with huge challenges. These observations particularly focus on 5 core questions whose answer will define the assembly line of knowledge about international law of tomorrow.

Kadi: The ECJ's Reminder of the Elementary Divide between Legal Orders

Without even the benefit of hindsight, we may already wonder whether the controversy that was triggered by the 2005 Yusuf judgment of the Court of First Instance (hereafter the CFI) and clinched by the 2008 Kadi ruling of the European Court of Justice (hereafter the ECJ) was inevitable and necessary. Indeed, the 2008 ruling of the ECJ sets aside a flawed decision and recalls the abiding and inextricable divide existing between legal orders - whether domestic or international. This divide leaves it to each legal order to decide how amenable to the rules of other legal orders it wants to be. If this elementary truth had not been overlooked by the CFI, no such controversy would have ensued. Hence, has the debate that stretched on since 2005 been worthwhile?

Jus Cogens as a Social Construct Without Pedigree

This chapter revisits the mainstream foundational nonchalance witnessed in the international legal scholarship relating to jus cogens whereby the practice of courts and tribunals often suffice, for most international lawyers, to compensate a disinterest in the pedigree of jus cogens. The purpose of this chapter is accordingly to depict how international lawyers, by virtue of a series of avoidance-techniques, leave one of their most fundamental doctrines ungrounded without feeling any need to anchor it more firmly in the system of thoughts of international law. Whether such a pedigreelessness actually constitutes a sign of maturity of international legal argumentation, or a theoretical ailment, is not a question that is discussed here. The description of the argumentative constructions to which international lawyers resort in relation to jus cogens to avoid the question of its pedigree is sufficient to illustrate the light treatment generally reserved to the making of the main doctrines of international law and their mystical origin.

International Law as a Profession

International law is not merely a set of rules or processes, but is a professional activity practised by a diversity of figures, including scholars, judges, counsel, teachers, legal advisers and activists. Individuals may, in different contexts, play more than one of these roles, and the interactions between them are illuminating of the nature of international law itself. This collection of innovative, multidisciplinary and self-reflective essays reveals a bilateral process whereby, on the one hand, the professionalisation of international law informs discourses about the law, and, on the other hand, discourses about the law inform the professionalisation of the discipline. Intended to promote a dialogue between practice and scholarship, this book is a must-read for all those engaged in the profession of international law.

Martti Koskenniemi, the Mainstream, and Self-Reflectivity

This article argues that contemporary international lawyers all sing the same critical refrain but few have really confronted and integrated the critical attitude deployed in From Apology to Utopia. After the denial and perplexity of the first encounters with Martti Koskenniemis work, international lawyers came to feel that they had domesticated the perplexity provoked by it. They now all enthuse about the new self-reflectivity that their victorious struggle with From Apology to Utopia supposedly allowed them to acquire. In sum, the contemporary self-proclaimed self-reflective international lawyers, after reading From Apology to Utopia, have returned to business as usual, continuing to let the discipline’s vocabulary decide on their behalf.

Towards an International Law of Brigandage: Interpretative Engineering for the Regulation of Natural Resources Exploitation

The exploitation of natural resources in times of conflict has been the object of prolific literature due to the extremely laconic character of the standards of conduct prescribed by the Hague and Geneva Conventions. Such laconicism has led scholars to be creative in ensuring that this central aspect of modern conflicts falls within the scope of existing legal instruments. This paper starts by depicting the rich argumentative creativity developed by scholars and experts to ensure a more comprehensive regulation of what has often been perceived as a form of international brigandage. Subsequently it reflects on the biases of the professional community that has dedicated its efforts to the elaboration of a fairer framework of natural resources exploitation in times of conflict. In particular, it formulates some critical remark on the “just world business” that has dictated the methodology behind most of the interpretative engineering to be found.

Which Future for the Scholarly Concept of Soft International Law? Editors’ Introductory Remarks

Engaging with a mundane topic like the softness of international law may certainly look surprising to the readership of a journal known for its avowed and constant quest for an intellectually and conceptually rigorous ‘off-Broadway’ scholarship. Why would a journal that tries to establish itself as a leading alternative voice in the field replay a comedy so often staged in mainstream scholarship? It is with the full awareness of such an anticipated feeling of deja vu that the editors of the Leiden Journal of International Law have decided to open the ensuing pages to an oft-debated topic with the ambition of evaluating the possibility of transcending the traditional pitched battle between opponents and advocates of soft law. It is well known that, after the juvenile success of the concept 1 and its embrace by a great number of international scholars, soft law became the object of severe criticisms, resulting in a chasm in the international legal scholarship. Indeed, the debate about soft law came to literally split authors into two camps, firmly pitted against one another. On the one hand, there are the advocates of the notion for whom the binary nature of law is incapable of explaining the complexity of the international exercise of public authority in a pluralized world 2 or who see soft law as an instrument of (programming of the) development of hard law. 3 These apostles of the notion of soft law are opposed by those who see the notion as redundant because it turns into either hard law or not law at all, 4 it is self-serving for the profession, 5 it is dangerously deformalizing our instruments of law ascertainment, 6 or it is weakening the general authority of law. 7 The fierce character of that confrontation originates in soft laws being intrinsically intertwined with ones core and inner understanding of (international) law, thereby making these discrepancies seem irreconcilable.

Articulating International Human Rights and International Humanitarian Law: Conciliatory Interpretation Under the Guise of Conflict of Norms-Resolution

This chapter seeks to challenge the mainstream use of the principle Lex specialis derogat generali to articulate HRL and IHL. It is argued here that judges and legal expert do not actually articulate HRL and IHL along the lines of that principle but rather engage in a systemic integration of these two sets of rules. More specifically, it is submitted here that, under the guise of the principle Lex specialis derogat generali, most judges and experts apply a principle of interpretation of international law, that is the principle of systemic integration of international law. The ambition of this chapter is accordingly to shed some light on the actual manner in which HRL and IHL have been articulated and dispel the impressions that are conveyed by the professed use of conflict-resolution mechanisms. This chapter will start by recalling the elementary features of the principle of systemic integration of international law (1) and those of the principle of Lex specialis derogat generali (2) with a view to showing that each of them constitute a very specific mechanism that does not serve the same purpose as the other. The chapter will then demonstrate how, in the context of the simultaneous application of IHL and HRL, these two mechanisms have been conflated, the systemic integration principle being applied under the guise of the Lex specialis derogat generali (3). Eventually, this chapter will try to unearth some of the reasons underlying the trompe l’oeil created by the use of the Lex specialis derogat generali to carry out a systemic integration of IHL and HRL (4).

Multilateral Versus Unilateral Exercises of Universal Criminal Jurisdiction

This Article draws a distinction between two types of exercises of universal criminal jurisdiction with a view to demonstrating that one of them is deeply detrimental to domestic IHL enforcement mechanisms. This Article especially zeroes in on contemporary unilateral exercises of universal criminal jurisdiction and argues that their unilateral character deprives domestic enforcement procedures of their legitimacy and efficacy. This Article begins by distinguishing between unilateral and multilateral uses of criminal universal jurisdiction. Once these two different exercises of universal jurisdiction have been sufficiently spelled out, this Article explains why unilateral exercises of universal jurisdiction and the absence of conventional basis do not, per se, stir any problems of legality. The last part of this Article shows that unilateral exercises of universal jurisdiction, while not generating any problem of legality, fuel problems of legitimacy because of the discourse that generally accompany such proceedings as well as the impossibility to relate such exercises to the consent of the State of nationality of the accused or that where the crime was committed. On this occasion, it is shown that the perceived illegitimacy of unilateral exercises of jurisdiction can prove harmful to the legitimacy and efficacy of domestic IHL enforcement procedures as a whole.