Although a positivist, I take more of an inclusive approach than my fellow panelists, and I apply Jules Coleman's theory of incorporationism in order to propose and explain a conceptual model for the sources of international law. Here, I will explain why inclusive legal positivism provides the most appropriate theory for conceptualizing the sources of international law in a contemporary world and outline some features of the structural model I set forth in my paper.
I attend to two levels simultaneously: arguing in a favor of a wider notion of sources in international law induced from the criteria set out in the secondary rules, which may be regime-specific (secondary rules lex specialis); and suggesting a model in which the secondary rules (as well as primary rules)--both lex specialis and lex generalis--are unified by a meta rule, the rule of recognition, which has normative foundations.
The basis of the model lies on the notion of secondary rules of international law that define the criteria for the sources of law. I acknowledge that there may be different sets of secondary rules, rather than one set that applies across the board to all the sub-disciplines and regimes in international law. There are, however, some general secondary rules, most notably--but not exclusively--those arising from Article 38(1) of the Statute of the International Court of Justice.
The formulation of secondary rules as lex generalis and lex specialis sets out a pluralist approach to the processes of law formation, and the rule of recognition brings a normative unity in the international legal system. I use the term "secondary rules" as referring to the rules that set out the criteria of sources. Taking, for example, the definition of customary international law: practice supported by opinio juris sets out how custom is formed, and hence forms the secondary rules lex generalis for the source of custom. In addition to these general secondary rules, novel or unorthodox interpretations of an existing source, or new criteria for either an existing or new source of international law--often as regime-specific--can then contribute to creating secondary rules lex specialis.
In addition to the issue of conceptualizing the sources of international law in an accurate and analytical manner, the argument here relies on inclusive positivism in the sense that moral (or other extra-legal considerations) may determine the formal legality of the rules. In other words, the rule of recognition may--but does not need to--incorporate the principle of morality: hence, applying the basic notion of inclusive positivism of "no necessary connection" between law and morality. This is apparent in international law and is, I argue, the most practically and conceptually accurate description of social facts in the international legal system. It is possible to locate the rule of recognition, notwithstanding past refusals to accept that such a rule would exist in international law. (1) It is beyond the focus here to discuss in depth the very nature of the rule of recognition, and I rely on Coleman's notion that the rule of recognition is both a social rule and a normative rule. (2)
INCLUSIVE POSITIVISM AND SOME PARAMETERS OF A MODEL FOR A SOURCES THEORY
Jules Coleman rejects Wil Waluchow's view that inclusive positivism best provides for the descriptive accuracy of law, (3) referring to rules that incorporate some moral conditions (e.g., "due process"; "cruel and unusual"). (4) Rules and principles containing similar moral language appear in abundance in international law. It is not for the reason of providing descriptive accuracy, but interpretive accuracy that inclusive positivism trumps competing theories, because it "provides the best comprehensive understanding of legal practice." (5) By this Coleman means that inclusive positivism best explains the interpretation of moral language in law application--again, something quite inescapable in international law. I argue that in fact both explanations--descriptive accuracy and interpretive accuracy of inclusive positivism--are well-fitted in international law, perhaps even more so than in domestic systems. As we know, the international legal system is composed of sets of rules and principles which often contain references to morality, and make legality of rules dependent on their moral character. One of the most obvious examples of such moral character of legality of sources--accurate both descriptively and interpretively--is Article 53 of the Vienna Convention on the Law of Treaties, which makes the validity of any treaty conditional on its compliance with jus cogens: "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law."
If it is submitted that the theory of sources arising from Article 38(1) of the ICJ Statute does not sufficiently respond to the question of how the rules of international law arise today, what sort of theoretical alternatives or ideas for reform could be put forward? From a positivist point of view, international law should not--and cannot, if remaining faithful to its nature as law--be reduced to a moral set of substantive norms, mainly for the reason that the concept of law is grounded in practice and facts rather than good intentions. This is not to say, however, that moral (and other) considerations cannot enter the sphere of international law at all: in order to be identified as law according to the rule of recognition, the rules must follow certain procedural standards; secondary rules set the procedure for the formation (and change and adjudication) of the primary rules; and all the rules in the system ought to operate in accordance with the rule of recognition, which in turn may assert morality as a condition of legality. (6) Obviously, many (primary) rules contain elements or have underlying rationales in moral philosophy, but the crucial point is that those norms are not law because of that, but because they conform to the legal form as equates to the rule of recognition.
As Hart sets out, primary rules determine the content of obligations, and secondary rules determine the formation, change, and identification of those primary rules. In international law, the argument suggests, there is a wide range of general secondary rules, which define the primary rules in regimes lacking special rules, as well as define the primary rules of general international law, for instance, on non-intervention, self-defense, recognition, and so on. Regimes that are highly self-contained may have created, fully or partially, their own sets of secondary rules. (7) In spite of the possible primary and secondary rules lex specialis, according to the suggested model, these all ought to conform to the general, normatively unifying rule of recognition--understood to include the requirements of justice, clarity, publicity, certainty, equality, fairness, the principle of pacta sunt servanda, and perhaps also "elementary conditions of humanity," to mention just a few. (8)
I have aimed in these brief remarks to sketch some parameters of a possible model for theorizing sources of international law through the lens of inclusive positivism. Admittedly, many issues remain untouched, for example, distinguishing--if possible--between the formation and application of sources; the (ir)relevance of consensus of international actors regarding a source; the (Hartian) internal point of view of those actors; and the hierarchy of sources themselves, to note a few that call for further elaboration.
The main impetus here has been to point to the necessity of a coherent theory of sources in international law which allows for flexibility, while setting a conceptual framework that explains developments in the social practice of international law. To do this comprehensively, we may have to acknowledge the pluralist--or fragmented, as some may call it--nature of international law: different fields or regimes have developed their own methodology of making law. At the same time, noting that the rule of recognition must be settled to some extent to avoid ambiguous outcomes, I suggest, as other scholars have done before me, some minimal substance to it that then validates norms of law. (9) In general, the presupposition in these remarks is that international law has in fact evolved into a legal system consisting of identifiable primary and secondary rules, and a meta-rule--the rule of recognition--even if not yet a fully fledged one.
I have thus aimed to illustrate how morality may be a determining factor of the legality of rules and of sources by suggesting some building blocks for future evaluation and exploration of sources theory in international law. Ultimately, the question comes back to whether we should persevere with the state consent-based theory of sources, or work toward a theory that reflects the new reality--a reality where we are no longer conducting international affairs and international law according to the models and methodologies that arose from the postSecond-World-War-anxieties, but are using the models and methodologies arising from today's much more multi-layered, and hence complex, society.
(1) Most famously, H.L.A. Hart in Chapter 10 of The Concept of Law (1961). See also HEDLEY BULL, THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS (1977). This position has been opposed by many since. See ANTHONY D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 41 (1971); Hugh Thirlway, The Sources of International Law, in INTERNATIONAL LAW 138 (Malcom D. Evans Yd., 2003); Samantha Besson, Theorizing the Sources of International Law, in THE PHILOSOPHY OF INTERNATIONAL LAW 163, 178 (Samantha Besson & John Tasioulas eds., 2010).
(2) JULES COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENCE OF A PRAGMATIST APPROACH TO LEGAL THEORY 115 (2001).
(1) I have attempted to set a framework for the rejuvenation of the theory of sources elsewhere. See JEAN D'ASPREMONT, FORMALISM AND THE SOURCES OF INTERNATIONAL LAW: A THEORY OF THE ASCERTAINMENT OF LEGAL RULES (2011).
(2) On the dynamics of the competition for argumentative authority in the international legal scholarship, see Jean d'Aspremont, Wording in International Law, 25 LEIDEN J. INT'L L. 575-602 (2012).
(3) See WIL WALUCHOW, INCLUSIVE POSITIVISM (1994).
(4) COLEMAN, supra note 2, at 109.
(5) Id. at 110.
(6) "[T]here is in principle no reason why rule of recognition could not incorporate morality in its criteria of legality...." Id. at 154. See also MORTIMER N.S. SELLERS, REPUBLICAN PRINCIPLES OF INTERNATIONAL LAW 25 (2006).
(7) Bruno Simma & Dirk Pulkowski, Of Planets and the Universe: Self-Contained Regimes in International Law, 17 EUR. J. INT'L L. 483, 492-93 (2006).
(8) See, e.g., Besson, supra note 1, at 172; RUTI G. TEITEL, HUMANITY'S LAW 170 (2011); LON FULLER, THE MORALITY OF LAW 39 (1964); David Luban, The Rule of Law and Human Dignity: Re-examining Fuller's Canons, 2 HAGUE J. ON RULE L. 29 (2010); David Lefkowitz, The Sources of International Law: Some Philosophical Reflections, in THE PHILOSOPHY OF INTERNATIONAL LAW, supra note 1, at 187, 189-91.
(9) As Coleman notes: "[T]he more controversial the rule of recognition, the less able it is to provide guidance. ..." COLEMAN, supra note 2, at 118.
Noora Arajarvi, Lecturer in Law, School of Law, UCLan Cyprus.