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1 Introduction: The Modern Splendour of Customary International Law

From: The Discourse on Customary International Law

Jean d'Aspremont

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 28 November 2021

Subject(s):
Customary international law — Opinio juris

(p. 1) Introduction

The Modern Splendour of Customary International Law

This book depicts the discursive splendour of customary international law. Customary international law is portrayed here as a splendid mechanism by virtue of the sophisticated discursive performances it enables and demands. Indeed, as will be shown in the following chapters, the success and plausibility of any argument about customary international law in international legal thought and practice commonly hinge on a myriad of discursive performances. It is this book’s ambition to shed light on the discursive splendour of a legal doctrine that is too often perceived as a miserably simple, plain, or malfunctioning doctrine.

According to the account of customary international law provided in this book, it does not suffice to simply invoke and demonstrate the two constitutive elements of customary international law for one to successfully and plausibly make a claim under the doctrine of customary international law. Behind what may appear as a very crude dualist type of legal reasoning, a very fine variety of discursive constructions are at work.1 More concretely, no one who makes an argument about customary international law gets away with simply ascertaining practice and opinio juris. Customary international law does what it does thanks to a wide variety of discursive feats that must be performed each time an argument about customary international law is made and which cannot be reduced to ascertaining practice and opinio juris. As this book will show, customary international law is not a discourse-efficient source of international law.

(p. 2) It should be made clear at this preliminary stage that exposing the discursive splendour of customary international law ought not to be construed as a rehabilitating exercise. First, because customary international law does not need to be rehabilitated. Customary international law remains a darling of international legal thought and practice.2 Rules of customary international law continue to be systematically invoked in practice while scholarly works on customary international law continue to be produced by the truckload. Second, the so-called and much discussed ailments of customary international law as well as the abounding scholarly rescue efforts to alleviate them are themselves part of customary international law’s splendour. It is not only that the remedies designed on that occasion come to feed into the existing splendour of customary international law but it is also that the very findings of malfunctioning of customary international law carry elaborate and fine representations of the discourse on customary international law.3

The very idea of discursive performance warrants a few observations. The discursive performances of customary international law that are discussed in the following chapters are construed here as responses to formal constraints of the discourse but are not themselves formal constraints. Indeed, many of discursive performances examined in this book are responses to the formal requirement of ascertaining the two constitutive elements of customary international law.4 Others are responses to more general formal requirements of the international legal discourse as a whole.5 It is important to emphasize here that, even if the discursive performances examined here are responses to formal constraints of the discourse, the discursive performances of customary international law examined here do not themselves amount to a formal constraint, rule, convention, or protocol of the discourse.6 In other words, they are (p. 3) not forced upon the users of the discourse. They are better—and more simply—understood as ways of thinking about customary international law.7

Although they are ways of thinking about customary international law and not formal constraints of the discourse, the discursive performances examined in the following chapters are not benign. In fact, there is no doubt that such discursive performances contribute to the many things that customary international law does in international legal thought, in international practice, and, more generally, in the world. For sure, customary international law provides international law with a law-creative process that is not dependent on the adoption of a formal written instrument.8 But, in doing so, customary international law concentrates international law-making power in the hands of a few powerful actors.9 It similarly discriminates between states and other actors. Customary international law also does many things beyond law-making. For instance, customary international law carries many hopes and symbols inside and outside international legal circles.10 At the same time, it is complicit with inequalities and the concentration of wealth within a happy few. It happens that it shields the bad guys. Worse, customary international law perpetuates colonial geographies and distribution of wealth and power.11 Engaging with the discursive performances of customary international law cannot be conducted without bearing in mind all that customary international law does.

(p. 4) The ambitions of this book call for some observations. In the light of all that customary international law does, it is possible to envisage three particular types of inquiries in the deeds of customary international law. First, one could examine what customary international law actually does and raise a question of worldmaking.12 Second, one could look into why customary international law does what it does and venture into an inquiry into ideology. Third, one could investigate how customary international law does what it does and conduct a study of its discursive architecture. The inquiry into the discursive splendour of customary international law carried out in the following chapters, subject to a few exceptions,13 endeavours neither to offer insights on customary international law’s worldmaking-ness14 nor to embark on ideology critique.15 Instead, this book explores the third of the three questions mentioned above, namely that of the discursive architecture of customary international law. This means that the primary ambition of this book is expository. In fact, this book seeks to induce a greater familiarity with the conditions of possibility of one of the most central discursive devices of contemporary international law.16 In that regard, this book is premised on the idea that the discursive performances of customary international law have remained, notwithstanding the luxuriant and ever-growing scholarship on customary international law, scarcely explored.

(p. 5) The expository exercise conducted in the following chapters is at the service of a number of claims about customary international law. One of the main claims made in this book is that customary international law is not the surviving trace of an ancient law-making mechanism that used to be found in traditional societies.17 Indeed, as is shown throughout this book, the splendour of customary international law is everything but ancient. On the contrary, there is hardly any doctrine of international law that contains so many of the features of modern thinking. Whilst each of the following chapters will shed light on a specific feature of the modernism of customary international law and its incommensurability with ancient mechanisms of generation of normativity, the attention can already been drawn at this preliminary stage to the fundamental modern idea of production which informs the way in which customary international law is thought, theorized, argued, and practised.18 Indeed, customary international law commonly refers to a process of production of legal normativity through human institutions or activities. It is submitted here that the omnipresence in the international legal discourse of this understanding of customary international law is a manifestation of a modern pattern of thought.19 The whole development of the doctrine of customary international law in the 19th century20 and its refinement in the 20th century21 can be construed as the organization and (p. 6) systematization of this idea of production inherited from modernity. And it is no coincidence that the production is commonly envisaged as a process of self-production, that is a process of production where the authors and the addressees of norms are conflated.22 Said differently, customary international law is always thought of as a self-generative and bottom-up process of production of normativity as a result of which it is not possible to distinguish between the authors of the norm and the addressees of the latter. This echoing of the social contract is another manifestation of customary international law’s modernism. In that regard, it is not surprising that this idea of self-production at the heart of customary international law was first theorized through the idea of tacit consent in the 19th century.23 Although the refinement of the doctrine of customary international law in the 20th century drew the idea of self-production away from tacit consent,24 the consolidation of the two-element variant of the doctrine of customary international law in the 20th century can be construed as a reinvention of the self-production at the heart of customary international law and a preservation of the conflation between authors (p. 7) and addressees of the norm short of consent.25 This modern idea of self-production informing the understanding of customary international law in the international legal discourse is decisive for the functioning of that doctrine. Indeed, the very idea of self-production is supposed to make customary international law work as a mechanical process and allow its normative product to be an inductively identifiable legal artefact independent from the many interpretive activities deployed on the occasion of the invocation of customary international law.26 This is modern thinking at its best.

Another fundamental manifestation of customary international law’s modernism27 which must be mentioned at this introductory stage, notwithstanding the following chapters reverting to it, lies in customary international law’s enabling international law to ‘speak real’. This means that, thanks to customary international law, international law can be represented and can function as an emanation of the actual world ‘out there’.28 It is submitted here that customary international law’s enabling of a representation and functioning of international law as the emanation of the actual world constitutes yet another modern feature of customary international law. The modernism of such feature of customary international law can be explained as follows. Although not unheard of in pre-classical international legal thought,29 the necessity for international law (p. 8) to be represented and to function as an emanation of the actual world is a construction that came to be systematized in classical international legal thought—and especially in the work of Vattel and Martens.30 Back then, the actual world in which international law had to be grounded meant the will of States. Such necessity to ground international law in the actual world, understood then as the will of States, gained further currency in the 19th century.31 Although the 20th century upheld such necessity to ground international law in the actual world, the way in which the actual world is understood subsequently underwent a significant development and ceased to be reduced to the will of State. In fact, 20th-century international law took issue with the idea that the basis of international law is provided by the will of States.32 Rather, it reinvented its understanding of the actual world in which international law ought to be grounded, ceased to reduce it to the will of States, and generalized the idea of practice which any international legal claim or argument is now expected to respond to or draw upon. This modern necessity to ground international (p. 9) law in the actual world—and more specifically in this renewed notion of practice under the umbrella of which the actual world came to be captured—found a very specific expression in the doctrine of customary international law, which similarly underwent a move from tacit consent of State to practice proper in the 20th century.33 The elevation of practice into a constituent element of customary international law and thus its enabling of international law to be grounded in the actual world ‘out there’ in the form of practice is yet another expression of the very modernism informing customary international law and confirms that customary international law cannot be simply reduced to an ancient mode of generation of normativity associated with traditional societies.

According to the argument made in this book, customary international law thus carries the mark of modern thinking—which will be further illustrated in the following chapters—but also the ambivalences thereof. Indeed, when one speaks of the splendour of customary international law, one is inevitably caught by a fundamental semantic ambivalence that pertains to the very notion of customary international law itself. Indeed, one can be referring either to the customary-rules-formation process or to the customary rules that have been formed through that process.34 In other words, customary international law, whenever it is referred to in international legal thought and practice, can possibly mean either the specific source of law called customary international law or the law constituted by each and every rule of customary international law which have their roots in such source of law.35 In that sense, there are two faces to customary international law: the origin and the product, the cause and the consequence, the abstraction and the materiality, the past and the present, etc. It must be acknowledged that most judicial decisions and scholarly works invoking or discussing customary international law commonly provide sufficient indications as to dispel this semantic ambiguity (p. 10) and determine whether it is the source or the law that is being mobilized. In the same vein, it should be clear by now that this book primarily engages with the discursive performances of customary international law as a source of law, that is as a customary-rules-formation process. Yet, it is submitted here that, notwithstanding the useful indications commonly found in the context of the invocation or discussion of customary international law, the abovementioned semantic ambivalence is never entirely ironed out in international legal thought and practice. Indeed, customary international law always carries a bit of both the source and the law, of both the origin and the product, of both the cause and the consequence, of both the abstraction and the materiality, and of both the past and the present.36 The persistence of that ambiguity can be explained as follows. On the one hand, customary international law as a source is commonly construed as being made of rules, as functioning as rules, as having a source itself, as binding actors and constraining their behaviour, etc just as law does.37 On the other hand, customary international law as law is often understood as having no functioning distinct from its source, for the determination of its present content as law hinges on the past process of its formation, law-formation and law-interpretation being often not distinguishable in the case of customary international law.38 In that sense, the semantic ambiguity afflicting the very notion of customary international law may not be only of a semantic character. As customary (p. 11) international law is caught between the source and the law, between the origin and the product, between the cause and the consequence, between the abstraction and the materiality, and between the past and the present, this ambivalence is, as several of the chapters that follow will demonstrate, a condition of possibility of customary international law.39 In that regard, this book will show that the splendour of customary international law also lies in customary international law having a divided conceptual identity, that is a conceptual identity constituted not by the relation between customary international law as a source and customary international law as law but through a self-difference of customary international law as source, that is a difference with customary international law as law within customary international law as source.40

Before sketching out the various sophisticated discursive performances which customary international law enables and demands and which constitutes the splendour of international law discussed in the following chapters, two methodological observations about the way in which the ensuing discussion is conducted are warranted. First, it is incontestable that behind the splendour of customary international law there are craftsmen. They include the International Law Commission, the International Court of Justice, other international courts and tribunals, domestic courts, authors of textbooks, legal scholars, legal advisers, the readers of this book, and all their associates. Yet, this book, in contrast to some of my previous writings,41 turns a blind eye to the craftsmen of the splendid architecture of customary international law and demotes the diachronic question of the formation and origin of customary international law to irrelevance, thereby proposing instead a synchronic examination thereof. Indeed, and subject to Chapter 2 that is dedicated to the rise, consolidation, and fluctuation of (p. 12) the dualist approach to customary international law as well as Chapter 5 that discusses those actually producing the practice, the discursive performances of customary international law are examined without paying much attention to their exact genealogy.42 Such muting of the craftsmen43 of the discourse breaks away with the common fixation witnessed in international legal scholarship with the origin and formation of legal forms.44 This does not mean however that the international lawyer is absent from the discussion that follows. Yet, the international lawyer is never the fixed and postulated author of the discursive performances examined here but simply an actor of the discursive scene who repeats the signs that she has learned, thereby always reaffirming what she repeats.45

Second, an observation on the sampling of the international legal literature and judicial decisions that is the focus of the following chapters is in order. This book only engages with the discursive performances of customary international law as they are witnessed in the relevant English-speaking literature and judicial practice. Occasional mention is made of German-speaking and French-speaking legal literature. Such sampling is primarily informed by practical considerations, which pertain to the linguistic aptitudes of the author as well as the access to textual materials. Needless to say that the ensuing reduction of the discursive splendour of customary international law to its expressions in English-speaking literature and judicial practice, without any other kind of distinction, is highly problematical. In fact, it entails that the following account of the splendour of customary international law is extremely ethnocentric.46 This sampling also unduly confers a presumption of prime relevance to English-speaking international legal literature and judicial decisions. It (p. 13) cannot be sufficiently emphasized that the following account of the splendour of customary international law is made with the awareness of the abovementioned severe sampling limitations. It is hoped, however, that the following discussion will stimulate similar works in other languages.

The contents of the following chapters must now be outlined. Before elaborating on some of the main discursive performances of customary international law, the attention must turn to the most central formal constraint on the discourse on customary international law which is simultaneously what enables the whole discourse and the discursive performances examined in this book, namely the formal requirement that customary international law be constituted of practice and opinio juris (Chapter 2). This book then reviews eight discursive performances at work in the discourse on customary international law. Five discursive performances discussed in the chapters that populate this book are responses to some of the formal modes of argumentation about customary international law that are explicitly prescribed by the international legal discourse, and especially the two constitutive elements of customary international law. These discursive performances are referred to here as the third constitutive element (Chapter 3), the custom-making moment (Chapter 4), the thinking in terms of what is called here the practicians (Chapter 5), the self-destructive character of customary international law (Chapter 6), and the self-confirming moves in the discourse on customary international law (Chapter 7). The three other discursive performances examined in this book boil down to discursive performances that respond to more general formal requirements of the international legal discourse as a whole. They include the system-support function bestowed upon customary international law (Chapter 8), the use of customary international law as a residual receptable for international legal bindingness of obligations that cannot be nested in a treaty (Chapter 9), and the thinking about customary international law in terms of rules (Chapter 10).

This book ends with a few concluding remarks on the textuality of customary international law and argues that the discursive splendour of customary international law found in the discursive performances examined throughout the book is neither a-textual nor pre-textual but rooted in the very textual materializations of customary international law. The splendour of customary international law is not only modern but is also profoundly textual (Chapter 11).

Footnotes:

1  It has long been shown that a few signs cobbled together can be the source of a huge plural process of signification. See Roland Barthes, S/Z (Seuil 1970) 9–20; Bruno Latour, La fabrique du droit. Une ethnographie du Conseil d’Etat (La Découverte 2004) 235. See the wonderful illustration provided by Jacques Rancière, Le Maître Ignorant: Cinq Leçons sur l’Emancipation intellectuelle (Fayard 1987) 46.

2  The vindications of a right to withdraw from customary international law are just a manifestation of how seriously international lawyers take customary international law. See Curtis Bradley and Gaurang Mitu Gulati, ‘Withdrawing from International Custom’ (2010) 120 Yale Law Journal 202.

3  See Chapter 6.

4  See Chapters 3–7.

5  See Chapters 8–10.

6  Such formal constraints imposed on the users of international law have been commonly theorized as being prescribed by ‘fundamental doctrines’ (see Jean d’Aspremont, International Law as a Belief System (CUP 2017)); ‘secondary rules’ (HLA Hart, The Concept of Law (Clarendon Press 1994) 94–95, 110–12); ‘legal conventions’ (Ronald Dworkin, Law’s Empire (Belknap Press 1986) 120–24); ‘sets of conventional disciplinary protocols of reasoning’ (Akbar Rasulov, ‘The Doctrine of Sources in the Discourses of the Permanent Court of International Justice’ in Christian Tams and Malgosia Fitzmaurice (eds), Legacies of the Permanent Court of International Justice (Martinus Nijhoff 2013) 271, 272); argumentative ‘codes of conduct’ (Judith Shklar, Legalism (HUP 1986) 1); ‘clusters of “topois” ’ (Friedrich V Kratochwil, Rules, Norms, and Decisions (CUP 1989) 38); ‘common tropes-argument patterns’ (Akbar Rasulov, ‘Writing about Empire: Remarks on the Logic of a Discourse’ (2010) 23 Leiden Journal of International Law 449, 460); or ‘rules of legal art’ (Julius Stone, Legal System and Lawyers’ Reasonings (Stanford University Press 1968) 23).

7  cf Winter’s understanding of constraint in Steven L Winter, A Clearing in the Forest. Law, Life and Mind (University of Chicago Press 2001) 114 (for him, constraints are both obligatory and indispensable, for our very ability to have a world is dependent on the pre-existing social practices and conditions that form both the grounds of intelligibility for and the horizon of our world). cf Foucault for whom the idea of repression was insufficient to explain the notion of power at work in discourses. See Noam Chomsky and Michel Foucault, The Chomsky-Foucault Debate on Human Nature (The New Press 2006) 152–53.

8  See Chapter 9.

9  See Chapter 5.

10  See Chapter 9.

11  See Chapter 5.

12  See generally Nelson Goodman, Ways of Worldmaking (Hackett Publishing 1978).

13  See Chapters 5 and 7.

14  For instance, there would be much to say about customary international law’s creation of imagined communities and geographies. See generally Benedict Anderson, Imagined Communities. Reflections on the Origin and Spread of Nationalism (rev edn, Verso 2016).

15  For instance, there would be much to say about customary international law’s creation of a bourgeois and a modern political subject, a governable and disciplined subject, etc. For such type of inquiry, see Michel Foucault, Le gouvernement de soi et des autres: Cours au Collège de France (1982–1983) (Gallimard Le Seuil 2008) 5. See also Timothy Mitchell, Colonising Egypt (CUP 1991) xi. For such inquiry in relation to domestic law, see Pierre Schlag, Laying Down the Law (NYU Press 1996) 163–67; Pierre Schlag, ‘The Problem of the Subject’ (1991) 69 Texas Law Review 1627. For such inquiry in relation to international law, see Sahib Singh, ‘The Critic(al Subject)’ in Wouter Werner, Marieke de Hoon, and Alexis Galan (eds), The Law of International Lawyers: Reading Martti Koskenniemi (CUP 2016); Sahib Singh, ‘Koskenniemi’s Images of the International Lawyer’ (2016) 29 Leiden Journal of International Law 699; John Haskell, ‘The Choice of the Subject in Writing Histories of International Law’ in Jean d’Aspremont and others, International Law as a Profession (CUP 2017) 244.

16  For a few remarks on the benefits of such an exercise, see Henri Bergson, Le possible et le réél (Quadrige 2011) 5. See also Bruno Latour, La fabrique du droit: Une ethnographie du Conseil d’Etat (La Découverte 2004) 153.

17  This is a claim commonly witnessed in the legal literature. See David Bederman, Custom as a Source of Law (CUP 2010). See also the remarks of Kadens in Emily Kadens, ‘Custom’s Past’ in Curtis A Bradley (ed), Custom’s Future: International Law in a Changing World (CUP 2016); Hugh Thirlway, The Sources of International Law (2nd edn, OUP 2019) 60.

18  On the idea that the question of production of human artefacts and human discourses is very modern, see Michel de Certeau, L’écriture de l’histoire (Gallimard 1975) 27–28.

19  On these two aspects of the doctrine of sources in general, see Jean d’Aspremont and Samantha Besson, ‘Introduction’ in Samantha Besson and Jean d’Aspremont (eds), Oxford Handbook on the Sources of International Law (OUP 2017). See also Charlesworth’s remarks in Hilary Charlesworth, ‘Law-Making and Sources’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2012).

20  See Anthony Carty, The Decay of International Law: A Reappraisal of the Limits of Legal Imagination in International Affairs (Manchester University Press 2019) 59–80. See also Milos Vec, ‘Sources of International Law in the Nineteenth-Century European Tradition: the Myth of Positivism’ in Samantha Besson and Jean d’Aspremont (eds), The Oxford Handbook on the Sources of International Law (OUP 2017); Lauri Malksoo, ‘Sources of International Law in the Nineteenth-Century European Tradition: Insights from Practice and Theory’ in Samantha Besson and Jean d’Aspremont (eds), The Oxford Handbook on the Sources of International Law (OUP 2017).

21  Chapter 2 will show that the definition of the modes of identification of customary law ought not to be attributed to the 1920 Committee of Jurists and Article 38 of the State of the Permanent Court of International Justice but rather to the Permanent Court of International Justice and the International Court of Justice.

22  See the remarks of Hugh Thirlway, The Sources of International Law (2nd edn, OUP 2019) 61.

23  For some illustrations of an understanding of custom built on tacit consent, as well as some remnants thereof, see Heinrich Triepel, Völkerrecht und Landesrecht (Scientia Verlag 1899); Karl Strupp, Elements du droit international public (Rousseau & Co 1927); Thomas Lawrence, The Principles of International Law (7th edn, Heath & Company 1915); John Westlake, International Law (The University Press 1904) 14; Dionisio Anzilotti, Scritti di diritto internazionale pubblico (Cedan Padova 1956–57) 1, 38, 95ff; Grigory Tunkin, Theory of International Law (HUP 1974) 124; Charles Chaumont, ‘Cours général de droit international public’ (1970) 129 Recueil des Cours de l’Académie de Droit International 333, 440; for an attempt to modernize the consensual conception of customary international law, see Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (OUP 2008) 70–107; Antony D’Amato ‘Treaties as a Source of General Rules of International Law’ (1962) 3 Harvard International Law Journal 1. For some classic criticisms of such a convention-based approach to customary law, see Hersh Lauterpacht, ‘Decisions of Municipal Courts as a Source of International Law’ (1929) 10 British Yearbook of International Law 65, 83; James L Brierly, The Law of Nations (5th edn, Clarendon Press 1955) 52; Joseph Kunz, ‘The Nature of Customary International Law’ (1953) 47 American Journal of International Law 662, 664. For an overview of 19th-century understanding of customary law as tacit consent, see Anthony Carty, The Decay of International Law: A Reappraisal of the Limits of Legal Imagination in International Affairs (Manchester University Press 2019) 61–65. For a resilience of the association between custom and consent in international legal thought, see however John Tasioulas, ‘Custom, Jus Cogens, and Human Rights’ in Curtis A Bradley (ed), Custom’s Future: International Law in a Changing World (CUP 2016) 95; Niels Petersen, ‘The Role of Consent and Uncertainty in the Formation of Customary International Law’ in Brian D Lepard (ed), Reexamining Customary International Law (CUP 2017).

24  In the same vein, see Hugh Thirlway, The Sources of International Law (2nd edn, OUP 2019) 61–62.

25  Some authors continue to associate the sources of international law with voluntarism. See Ingo Venzke, How Interpretation Makes International Law (OUP 2012) 1–2. The idea that crude voluntarists have never existed and that voluntarism has been a straw man is discussed in Richard Collins, ‘Classical Positivism in International Law Revisited’ in Jörg Kammerhofer and Jean d’Aspremont (eds), International Legal Positivism in a Post-Modern World (CUP 2014). For a similar distinction, see Samantha Besson, ‘Theorizing the Sources of International Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 166.

26  The reduction of truth-making to a matter of induction from a meta-paradigm which is itself self-explained is characteristic of the type of modern thinking. See Jean-François Lyotard, La Condition Postmoderne (Editions de Minuit 1979) 13, 59. See also Theodor Adorno and Max Horkheimer, Dialectic of Enlightenment (Verso 1997) 7; see also Keith Jenkins, Re-thinking History (Routledge 2003) 82; Pierre Schlag, ‘The Empty Circles of Liberal Justification’ (1997) 96 Michigan Law Review 19. See also Peter Sloterdijk, Après Nous le Déluge (Editions Payot & Rivages 2018) 59, 63.

27  The invocation of ‘nature’ as the ultimate truth-claiming criteria is a common feature of modern technical discourses. See generally Bruno Latour, Science in Action: How to Follow Scientists and Engineers Through Society (HUP 1987).

28  This necessity to speak the real is what Martti Koskenniemi has referred to as the requirement of ‘concreteness’ of international legal argument. See Martti Koskenniemi, From Apology to Utopia (CUP 2005) 17–23.

29  Indeed, authors from the 17th and 18th centuries, while prioritizing moral needs in the international legal discourse, recognized that international law could partly be an emanation of the actual world. See Samuel Pufendorf, On the Law of Nature and of Nations (Charles Henry Oldfather and William Abbott Oldfather trs, Clarendon Press 1934). See Christian Wolff, Law of Nations Treated According to A Scientific Method (John Drake tr, Clarendon Press 1934).

30  The 1758 work of Emmerich de Vattel, while perpetuating some of the assumptions of his predecessors regarding the necessity of natural law, made the need to ground international law in the actual world—which he reduced to the will of the States—the main cause of international law. Even more decisive was Georg Friedrich de Martens’ radical move away from the moral necessities of natural law and the systematization of international law through treaty and custom fondé sur les traités et l’usage. With Martens the need to ground international law in the actual world became the exclusive cause of international law, the latter being turned into a discourse necessarily and exclusively articulated around the necessity to ground international law in the actual world. See Emmerich de Vattel, The Law of Nations (Charles Fenwick tr, Carnegie Institution of Washington 1916). See generally Georg F von Martens, Précis du droit des gens moderne de l’Europe fondé sur les traités et l’usage (Dieterich 1789).

31  See, Henry Wheaton, Elements of International Law (Lea and Blanchard 1836); Robert Phillimore, Commentaries upon International Law (AG Benning 1854–61); Theodore D Woolsey, Introduction to the Study of International Law (4th edn, Scribner Amstrong & Co 1877). It should be noted that some of them, whilst making the need to ground international law in the actual world very central, continued to accommodate the idea that the international legal discourse must respond to reason or natural law, or sometimes the will of God. It has been claimed that the necessity to ground international law in the actual world that arose in the 19th century was part of an overarching dialectical mode of argumentation that simultaneously required the espousal of some utopian principles. It was also said that, for 19th-century authors, responding to the actual world was a strategy to avoid being utopian. This is the thesis defended by Koskenniemi in Martti Koskenniemi, From Apology to Utopia (CUP 2005) 71–157.

32  Twentieth-century international lawyers came to develop a sophisticated doctrine of sources meant to mediate between the will of the State and the legal forms by which a rule would be recognized as a legal rule. On the rise of the doctrine of sources, see Jean d’Aspremont, Formalism and the Sources of International Law (OUP 2011) 38–82.

33  See n 27.

34  For a discussion of a similar semantic ambivalence witnessed in relation to the jus cogens doctrine, see Jean d’Aspremont, ‘Jus Cogens as a Social Construct Without Pedigree’ (2015) 46 Netherlands Yearbook of International Law 85.

35  This corresponds to the common distinction made in analytical jurisprudence between primary and secondary rules. See generally HLA Hart, The Concept of Law (2nd edn, OUP 1994) 26–49, 100–110. See Neil MacCormick, ‘The Concept of Law and the Concept of Law’ in Robert P George (ed), The Autonomy of Law: Essays of Legal Positivism (OUP 1996) 170–79. See also Raz’s contention that a legal system may have more than one rule of recognition: Joseph Raz, ‘The Identity of Legal Systems’ (1971) 59 California Law Review 795, 806.

36  As far as the distinction between primary and secondary rules is concerned, the idea of such distinction had been already emphasized in analytical jurisprudence. See Norberto Bobbio, ‘Nouvelles réflexions sur les normes primaires et secondaires’ in Norberto Bobbio, Essais de théorie droit (Bruylant/LGDJ 1998). Austin and Ihering had already pointed out that the distinction collapses with respect to law-applying authorities for whom secondary rules function as primary obligations. It has always been argued that the dichotomy rests on the very unstable and ever-changing notion of internal point of view. See Brian Z Tamanaha, ‘A Socio-Legal Methodology for the Internal/External Distinction: Jurisprudential Implications’ (2006) 75 Fordham Law Review 1255, 1264. It has also been claimed in the literature that the distinction between primary and secondary rules paves the way for circularity. See Matthew H Kramer, ‘The Rule of Misrecognition in the Hart of Jurisprudence’ (1988) 8 Oxford Journal of Legal Studies 401, 407; Jason Beckett, ‘The Hartian Tradition in International Law’ (2008) 1 The Journal of Jurisprudence 51, 58; Andrei Marmor, ‘Farewell to Conceptual Analysis (In Jurisprudence)’ (2012) USC Legal Studies Research Paper No 12–2, 24; Keith Culver and Michael Giudice, Legality’s Borders: An Essay in General Jurisprudence (OUP 2010) 8–14; Andrei Marmor, Philosophy of Law (Princeton University Press 2011) 56. On this point, see MacCormick’s defence of Hart in Neil MacCormick, Legal Reasoning and Legal Theory (Clarendon Press 1978). On MacCormick’s so-called post-positivism, see Karen Petroski, ‘Is Post‐Positivism Possible?’ (2011) 12 German Law Journal 663, 665.

37  See Chapter 10.

38  See Chapter 4.

39  On this aspect of discourses in general, see generally Jacques Derrida, Pardonner: L’impardonnable et l’imprescriptible (Galilée 2012). See also Jacques Derrida, La vie la mort (séminaire 1975–76) (Le Seuil 2019).

40  This otherness within the same is what Jacques Derrida has called the différance. See generally Jacques Derrida, Marges de la Philosophie (Editions de Minuit 1972) 1-29. Jacques Derrida, Positions (Editions de Minuit 1972) 17.

41  Much of my previous works put the emphasis on the international lawyers and their projects, and thus on the craftsmen. See Jean d’Aspremont, Epistemic Forces in International Law (Edward Elgar 2015). See Jean d’Aspremont, ‘Wording in International Law’ (2012) 25 Leiden Journal of International Law 575. In International Law as a Belief System, I did not examine the role of the craftsmen but the way in which ruleness, self-referentiality, and genealogy shield the craftsmen from any scrutiny of their exercises of definitional power. See Jean d’Aspremont, International Law as a Belief System (CUP 2017).

42  This is a common criticism that was raised against Michel Foucault’s 1966 Order of Things (Les mots et les choses), which he allegedly tried to offset in his subsequent 1969 Archaeology of Knowledge (L’Archéologie du savoir).

43  Jonathan Culler speaks of the text being ‘orphaned’ (see Jonathan Culler, Structuralist Poetics (Ithaca 1975) 133). Roland Barthes speaks of the death of the author. See Roland Barthes, ‘La mort de l’auteur’ in Le Bruissement de la langue (Seuil 1984) 61.

44  This is a common move which legal theorists have borrowed from structuralism and poststructuralism. See David Kennedy, ‘Critical Theory, Structuralism and Contemporary Legal Scholarship’ (1985–86) 21 New England Law Review 209, 212, 267.

45  See Roland Barthes, Leçon (Seuil 1978) 15–16. A possible consequence of such a posture is that the discussion finds itself both within and outside the international legal discourse, thereby limiting the normative evaluations thereof. This is a charge that has been made against the archaeological work of Foucault by Hubert L Dreyfus and Paul Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics (2nd edn, University of Chicago Press 1983) 88, 95.

46  The same charge has been made against the work of Foucault. See Timothy Mitchell, Questions of Modernity (University of Minnesota Press 2000) 13.