Jean d’Aspremont

Formalism and the sources of international law: a theory of the ascertainment of legal rules

1. Introduction 2. The concept and the rationale of formalism in international law 3. The emergence of formal law-ascertainment in the theory of the sources of international law 4. The critiques of formal law-ascertainment in the theory of the sources of international law 5. Deformalization of law-ascertainment in contemporary theory of the sources of international law 6. Lessons from the discontent for the sources of international law 7. Formal law-ascertainment criteria of international legal rules: the source thesis 8. The foundations of formal law-ascertainment criteria: the social thesis 9. Concluding remarks: Ascertaining international legal rules in the future

The Quest for a Non-Conflictual Coexistence of International Human Rights Law and Humanitarian Law: Which Role for the Lex Specialis Principle?

International Humanitarian Law (hereafter IHL) and International Human Rights Law (hereafter HRL) undoubtedly share some kinship. Yet, most international lawyers and judges, confronted with the simultaneous application of these two sets of norms have made a resort to the principle lex specialis derogat generali. Their use of that principle has presupposed that norms of IHL and HRL belong to the same legal order and the same legal regime and are, at the surface, in conflict with one another. This paper tries to rebut these presuppositions and showed that the relations between IHL and HRL ought to be construed in terms of competition rather than conflict. Drawing on the idea of competition between these two sets of rules, this paper subsequently seeks to evaluate the contemporary uses of the principle lex specialis derogat generali – particularly witnessed in the case-law of the ICJ – to calibrate the systemic integration of international law. It concludes that such an unorthodox use of that principle does little to alleviate the uncertainty inherent in the competitive character of the relationship between IHL and HRL.

Epistemic Forces in International Law

Contents: PART I THE FOUNDATIONAL DOCTRINES 1. Subjects 2. Sources 3. Law-making 4. Institutions 5. Effectivity PART II THE ARGUMENTATIVE TECHNIQUES 6. Methodology 7. Interpretation 8. Academic Writing 9. Dissemination 10. Expert Blogging Index

Send back the Lifeboats: Confronting the Project of Saving International Law

The idea that international law is in crisis—needing the inspired thinking and skilled practice of many kinds of international lawyers to save it—has a rich history in those countries where the enterprise of international law has been most deeply established and embraced. Unsurprisingly, saving international law remains a project shared by many twenty-first-century international lawyers. Such a commitment is certainly not confined to legal academics. Even some legal advisers, counsel, judges, and activists think of themselves as having a role to play in rescuing international law. Being a disengaged bystander while grave hazards supposedly threaten international law has not seemed to be a proper option for many of these professionals who share a calling for heroic self-sacrifice to salvage the ostensibly endangered entity of international law.

Subjects and Actors in International Lawmaking: The Paradigmatic Divides in the Cognition of International Norm-Generating Processes

With an emphasis on subjects and actors, this chapter seeks to shed some light on the choices made by scholars in modelling and cognizing international lawmaking processes. After a brief outline of the mainstream descriptive frameworks used to cognize and model normmaking processes in international law, this chapter elaborates on the driving forces at work behind each of them. In doing so, this chapter draws attention to the politics of empiricism and cognition with a view to offering some critical reflection on how international legal scholars and practitioners have been making sense of international lawmaking.5. Lawmaking by treaty: Negotiation of agreements and adoption of treaty texts 87 Kirsten Schmalenbach 6. Lawmaking by treaty: Conclusion of treaties and evolution of treaty regimes in practice 111 Daniel Costelloe and Malgosia Fitzmaurice 7. The emergence of customary international law: Between theory and practice 133 Omri Sender and Michael Wood 8. Relying on general principles in international law 160 Beatrice I. Bonafé and Paolo Palchetti