Towards a Communicative Theory of International Law

Article excerpt

FORMALISM AND THE SOURCES OF INTERNATIONAL LAW: A THEORY OF THE ASCERTAINMENT OF LEGAL RULES BY JEAN D'ASPREMONT (OXFORD, UK: OXFORD UNIVERSITY PRESS, 2011) 288 PAGES. PRICE 60.00 [pounds sterling] (HARDCOVER) ISBN 9780199696314.

CONTENTS

I    Introduction
II   The Role of Formalism in Finding International Law
III  A Communicative Theory of International Law
       A  A Need for Formalism?
       B  Communication and Expectations
IV   Conclusion

'The Lord came down to see the city and the tower the people were building. The Lord said, "If as one people speaking the same language they have begun to do this, then nothing they plan to do will be impossible for them."'

--Genesis 11: 5-6

I INTRODUCTION

Article 38 of the Statute of the International Court of Justice proclaims that the Court shall apply 'international conventions', 'international custom', 'the general principles of law recognized by civilized nations', and as a subsidiary means for the determination of the rules of law, 'judicial decisions and the teachings of the most highly qualified publicists'. Although expressly framed as a list of applicable law in disputes before the International Court of Justice ('ICJ') and not as an exhaustive list of the sources of international law, generations of law students have been taught that the sources of international law can be found simply by reading art 38. Armed with this succinct menu, graduates sally forth into international legal practice where they find that the neat world of art 38 is a fiction.

For upon entering international legal practice in almost any field it is readily apparent that art 38 misses entire categories of norms that international lawyers and states appear to treat as if they have some legal consequence. In some cases, international lawyers try to resolve this tension by describing putative legal norms as customary international law, despite implausible evidence as to the state practice and opinio juris that accompany them. (1) In other instances, instruments are described as 'soft law', suggesting that they have some legal qualities while lacking others. (2) Some of these soft law norms are created by non-governmental organisations, meaning that under traditional state-centric theories of international law they cannot be binding law. (3) Yet many, if not most, lawyers have the intuition that, despite the traditional doctrine of sources, juris-generation is no longer the sole province of the state. (4) Some scholars have thus produced theories to explain the normative force of new kinds of quasi-legal rules, (5) while others have emphatically pushed back and argued for the preservation of traditional and strict notions of what constitutes 'law'. (6)

Into this cacophony enters Jean d'Aspremont, an associate professor of international law at the Centre for International Law at the University of Amsterdam. His book, Formalism and the Sources of International Law, (7) builds on his earlier work published in the European Journal of International Law (8) and the Finnish Yearbook of International Law, (9) among other places. (10)

The book is a greatly welcome addition to the literature on the sources of international law. Drawing on both general and international legal theory, d'Aspremont develops a formalist theory of how linguistic indicators can and should be used to identify legal norms and distinguish them from non-legal norms. The book is divided into eight chapters. The early chapters introduce the study and defend a formalist approach to identifying legal norms, while the middle chapters explore the intellectual history of formalism in legal thought and international legal thought in particular. Later chapters examine critiques of formalism and the deformalisation of sources of international law. The final two chapters present d'Aspremont's theory of formal 'law-ascertainment' (or as I shall sometimes refer to it, identification)--an approach to determining whether a particular instrument or norm gives rise to legal obligations. …