Capacidad de formación de espuma (CFE)

3.1. Introduction

Leaving behind the lifework of Seferiades, Chapter 3 continues the exploration of the over-arching theme of the function of the notion of progress in public international law. We now turn to a different plane of international argument and a different horizon for our analysis. The present case study concerns international law doctrines and, in particular, the way in which the formation of a doctrine may be regarded as a moment of progress for public international law (progress within international law). To exemplify the point, the most classic of doctrines has been selected, namely the doctrine of the sources of international law.

In its colloquial sense, the term ‘doctrine’ refers to a corpus of taught beliefs, principles, or positions within a given system of knowledge.207 In international law, the term doctrine enjoys a diversity of meanings and may refer to a single principle, norm, rule, idea, belief, or a set of inter- twined principles, norms, rules, ideas, or beliefs, related to international law. Although no clear line can be drawn between the various uses, a quick typology would reveal several distinct meanings. Thus, by doctrine one may refer to the writings of qualified publicists on a certain matter.208 Other times we speak of the ‘Monroe Doctrine’,209 the ‘Bush Doctrine’,210 the ‘Human Security Doctrine’,211 to refer to a set of policies that may (or may not) become operationalized by means of international law instruments or

207

See e.g. Webster’s Third New International Dictionary of the English Language (2002) 666 giving the following meanings to the term: “something that is taught or held or put forth as true and supported by a teacher or school or sect”; “a principle or position or body of principles in any branch of knowledge”; “a principle of law established through past decisions and interpretations”; “a formulated theory supported or not controverted by evidence, backed or sanctioned by authority and proposed for acceptance”; Black’s Law Dictionary (2004) 518, describes doctrine as a “legal principle that is widely adhered to”.

208

A. Carty, A Renewed Source for Doctrine as a Source of International Law in Times of Fragmentation, in R. Huesa Vinaixa & K. Wellens (eds.), L’influence des sources sur l’unité et la fragmentation du droit international 239-261 (2006).

209

A. Álvarez, The Monroe Doctrine: Its Importance in International Life of the States of the New World (1924).

210

M. Buckley & R. Singh, The Bush Doctrine and the War on Terrorism: Global Responses, Global Consequences (2006).

211

M. Glasius, A Human Security Doctrine for Europe: Project, Principles, Practicalities

institutions. In technical international law talk, we also speak of the ‘legal doctrines’ of uti possidetis,212 precedent,213 Joint Criminal Enterprise,214 indirect expropriation,215 responsibility to protect,216 and so on, to refer to a norm (or a set of interrelated norms, standards, rules) regulating a specific international law problem. The present Chapter speaks of doctrine as understood in this technical-legal sense -- a regulatory approach to a legal question that has become crystallized into a finite set of binding norms.

The doctrine of the sources of international law is generally used to signify an agreed upon set of abstract forms (criteria, tests of validity, boundary conditions, categories) that determine two essential functions of the international legal system: law-creation (how is international law made) and law-ascertainment (how do we distinguish between legally binding and non- binding norms). For scholars and practitioners today, the starting point for any discussion on the sources is the wording of Article 38(1) of the Statute of the International Court of Justice (ICJ). Article 38(1) ICJ reflects with minor modifications Article 38 of the Statute of the Permanent Court of International Justice (PCIJ),217 and reads as follows:

212

H. Ghebrewebet, Identifying Units of Statehood and determining International Boundaries: A Revised Look at the Doctrine of “Uti Possidetis” and the Principle of Self-Determination

(2006).

213

M. Sellers, The Doctrine of Precedent in the United States of America, (2006) 54 American Journal of Comparative Law 67.

214

A. Cassese, The Proper Limits of Individual responsibility under the Doctrine of Joint Criminal Enterprise, (2007) 5 Journal of International Criminal Justice 109.

215

V. Heiskanen, The Doctrine of Indirect Expropriation in Light of the Practice of the Iran- United States Claims Tribunal, (2007) 8 Journal of World Investment & Trade 215.

216

B. Delcourt, The Doctrine of the ‘Responsibility to Protect’ and the EU Stance: Critical Appraisal, 59 Studia Diplomatica 69-93 (2006).

217

The PCIJ version of Article 38 reads: “The Court shall apply:

1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

2. International custom, as evidence of a general practice accepted as law; 3. The general principles of law recognized by civilized nations;

4. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.”

There are four minor differences between the PCIJ and the ICJ versions of the text: a) the chapeau of Article 38 of the PCIJ version (“The Court shall apply”) was moved to the body of paragraph 38(1) of the ICJ version; b) the phrase “whose function is to decide in accordance with international law such disputes as are submitted to it” was added to the text of paragraph 38(1) of the ICJ version; c) paragraphs 38(1) to 38(4) of the PCIJ version were converted into sub-paragraphs 38(1)(a) to 38(1)(d) in the ICJ version. Finally, the two periods of paragraph 38(4) of the PCIJ version were separated as sub-paragraph 38(1)(d) and paragraph 38(2) of the ICJ version.

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Although its drafters never intended nor foresaw such a development back in 1920, soon after its adoption, Article 38 PCIJ became the basis of a new conception of the sources of international law. Within a few years, the idea of a ‘doctrine of the sources’, in the contemporary sense of a finite list of abstract forms that determine law-creation and law-ascertainment, became introduced and consolidated as the standard approach on the subject. By the early 1930s, a previously divided literature started displaying great uniformity of views. The formative impact of Article 38 on post-1920 theory and practice is hard to overstate.218 The adoption of the Article was heralded as an important moment of disciplinary progress at the time. Commentators described it as “the solid bed of rock on which the fabric of international law has now to be built,”219 a development that ended an “embarrassing uncertainty”220 about the sources of international law, and so on.

At the same time, the emergence and success of the doctrine of the sources is perhaps one of the greatest riddles of interwar international law. Surely, international law craved for reform in the aftermath of the Great War. But why the turn to sources? Why not institutions, processes, the judiciary? Although determinacy of legal obligations may appear an intuitive goal for the discipline today, why would anyone need a ‘doctrine’ to do it? How can a provision describing the law to be applied by the PCIJ become “the solid basis of rock on which the fabric of international law has to be built”?

Similar to the previous Chapter, this case study does not care to confirm or deny the view that the creation of the doctrine of the sources of international law in the early 1920s was a positive development for international law. The purpose is rather to scrutinize the discursive structures that produced the perception of progress associated with the dosctrine of the sources.

218

Several authors acknowledge this. See e.g. C. Rousseau, Droit International Public 59 (1970, Vol. I); M. Sørensen, Les sources du droit international: étude sur la jurisprudence de la Cour Permanente de la Justice International (1946) 40.

219

Williams (Aspects), supra note 2, at 38-9.

220

H. Lauterpacht, Private La w Sources and Analogies of International La w (With Special Reference to International Arbitration) (1927), at 67-68.

An extraordinary amount of work has been published on the sources since 1920, with recent years being no exception.221 Some of this work has covered the topic exhaustively. Moreover, Critical scholarship during the last two decades has set new standards of analysis by exposing the deep structure of sources argument with great lucidity and persuasiveness.222 The aim of this Chapter is not to replicate the above-mentioned work but, rather, to refer to it for the purpose of supporting its analysis.

The propositions explored in this Chapter, closely following the ones outlined in Chapter 1, is that the watershed effect of the doctrine of the sources becomes very plausible when seen in the light of the foregoing analysis about the role of vocabularies of progress in international law. It is argued that, contrary to the mainstream understanding, the success of the doctrine of the sources cannot be attributed to its (alleged) claim of bringing closure to the perennial questions of law making and law ascertainment. Sources talk, however, managed to capture the fantasy of an entire profession as a means of moving forward with the discipline. The idea was that, if only one was able to devise a set of finite, universally applicable, formal categories of legal norms, one would be able to end the problem of

221

For some post-1989 book-length publications on the topic, see A. Boyle & C. Chinkin, The Making of International Law (2007); A. Orakhelashvili, Peremptory Norms in International La w (2006); C. Tomuschat & J.-M. Thouverin (eds.), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (2006); R. Wolfrum & V. Röben (eds.), Developments of International Law in Treaty Making (2005); M. Craven & M. Fitzmaurice, Interrogating the Treaty: Essays in the Contemporary Law of Treaties (2005); C.J. Tams, Enforcing Obligations Erga Omnes in International Law

(2005); A. D’Amato, International Law Sources (2004); I. F. Dekker & H. G. Post (eds.),

On the Foundations and Sources of International Law (2003); R. Gaebler & M. Smolka- Day (eds.), Sources of State Practice in International Law (2002); M. Koskenniemi (ed.),

Sources of International Law (2000); A. Aust, Modern Treaty Law and Pra ctice (2000); M. Byers, Custom,Power and the Power of Rules (1999); B. Mulamba Mbuyi, Introduction à l’étude des sources modernes du droit international public (1999); O.A. Elias & C.L. Lim,

The Paradox of Consensualism in International La w (1998); M.E. Villiger, Customary International Law and Treaties: A Manual on the Theory and Practice of the Interrelation of Sources (1997); V.D. Degan, Sources of International Law (1997); M. Ragazzi, The Concept of International Obligations "Erga Omnes" (1997); J. Klabbers, The Concept of Treaty in International Law (1996); G.M. Danilenko, La w Making in the International Community (1993); K. Wolfke, Custom in Present International Law (1993).

222

The work of David Kennedy and Martti Kosenniemi has been seminal in this regard. See Kennedy (International Legal Structures), supra note 37, esp. Chapter 1 (Sources of International Law), at 11-107, reprinted in D. Kennedy, The Sources of International Law, (1987) 2 American University Journal of International Law Review 1-96; M. Koskenniemi, Editor’s Introduction, in Koskenniemi (Sources), supra note 222, at xv-xxvii; M. Koskenniemi, The Normative Force of Habit: International Custom and Social Theory, (1990) 1 Finnish Yearbook of International Law 77; Koskenniemi (From Apology to Utopia), supra note 37, esp. Chapter 5 (Sources of International Law), at 264-341.

indeterminacy. The case study demonstrates how this feeling of progress is generated by a vocabulary, a set of discursive structures.

The backbone of this vocabulary is a narrative of progress that tells a story about forward movement and evolution. This narrative tells the story of

‘old’ international law, whose law-making processes were indeterminate and open-ended. Article 38 was described as being able to resolve these problems and thus initiate a new era in international law making, bringing determinacy and closure. Similarly to Seferiades, however, this Chapter demonstrates that the new doctrine was based on notions that were themselves neither stable nor determinate but were subverted each time they were put to application. Legitimacy in sources discourse was produced not because Article 38 PCIJ Statute had the capacity to decisively tell whether a certain norm was one of public international law. Legitimacy was produced via the invocation of the vocabulary of Article 38. In that sense, progress in sources discourse did not have a concrete essence: it was the product of a narrative whose essence was floating, allowing a multiplicity of meanings according to the occasion. Like Seferiades, one could argue that the iteration of meanings is what enabled the success of the language of the sources doctrine.

The study has defined as the horizon of its field of analysis interwar (1919-1939) on the sources of international law. Sections 3.2, 3.3 and 3.4 situate the adoption of Article 38 PCIJ (which occurred in 1920) within the cultural and professional habitat of “new international law” of the years between the two World Wars. The chief aim of those Sections is to explain how the need for law making, and an ensuing doctrine of the sources, emerged as crucial part of the reconstruction rhetoric. Section 3.5 tries to resolve the ‘riddle’ of the success of the doctrine of the sources in capturing the imagination of interwar international law. It explains how the doctrine of the sources seemed able to satisfy the need for clarity, determinacy, and ground for public international law, while avoiding the pitfalls of 19th century international law theory. Section 3.6 briefly digresses to some contemporary interntional law writings that illustrate the vocabulary of progress of the sources doctrine. Section 3.7 looks behind the claims of the doctrine and assesses the limits of its vocabulary of progress.

3.2. Interwar Discourse on the Sources of International Law and the Quest for Reconstruction

In the years following World War I international law appears deeply immersed in reflection about its future. An unusual number of publications of the time address squarely the theme of the outlook, future, or prospect for international law and pose openly the question of how to achieve progress

within the science.223 In this spirit, Manley Hudson publishes in 1925 a celebrated article titled TheProspect for International Law in the Twentieth Century.224 The paper echoes Hudson’s other publications of the time225 and is written in the grand, evocative style typical of interwar scholarship.226 The tone is engaging, intense, almost zealous, inviting international lawyers to join the author in a large-scale effort to redefine the goals of the science. Hudson sets out to answer the basic question of “what do we hope to be the contribution of the twentieth century to the progress of international law?”227 To answer, he performs an anatomy of the problems plaguing international law, followed by suggestions for future action. This publication is illustrative of many of the standard tropes228 of mainstream interwar scholarship and brings out the crucial role of the turn to law making and the doctrine of the sources. Hudson’s article is examined here in some detail to help us flag out the main contours of interwar argument and the context in which the debate on the sources acquired its meaning.

Hudson begins with an appraisal of the influence of World War I on the development of international law.229 The War is presented as a cataclysmic event that, quite paradoxically, produced two opposite effects. On the one hand, it put an abrupt end to the progress that was being achieved previously.230 For Hudson, pre-War progress consisted of an ever expanding

223

See in chronological order, Seferiades (The Future of International Public Law), supra note 66; L. Oppenheim, The Future of International La w (1921); Nippold (The Development of International Law After the World War), supra note 74; M.O. Hudson, The Outlook for the Development of International Law (An Address before the American Branch of the International Law Association, New York, January 1925); Lauterpacht (Private Law Sources), supra note 220; N.S. Politis, The New Aspects of International La w: A Series of Lectures Delivered at Columbia University (1928); Álvarez (The New International Law),

supra note 16; J.B. Scott, The Progress of International Law During the Last 25 Years, (1931) 25 Proceedings of the American Society of International Law 2; W. Simons, The Evolution of Public La w in Europe Since Grotius (1931); Hudson (Progress in International Organization), supra note 13; A. Álvarez, The Necessity for the Reconstruction of International Law – Its Aim, Proceedings of the 4th Conference of Teachers of International Law and Related Subjects (1930) 11; Brierly (Shortcomings of International Law), supra

note 72.

224

M.O. Hudson, The Prospect for International Law in the Twentieth Century, (1925) 10 The Cornell Law Quarterly 419.

225

See supra note 223.

226

See the discussion of the writings of Seferiades, Chapter 2, supra.

227

Hudson (Prospect), supra note 224, at 420.

228

The term trope is understood here in its meaning under literary theory, namely as a common motif, story or pattern in literary accounts. The term has a different meaning in linguistics, where it is used in the sense of a figure of speech, namely a deviation or modification of the meaning of a primary expression that is regarded as normal. See e.g. Ducrot & Todorov (Encyclopaedic Dictionary of the Sciences of Language), supra note 32, at 275.

229

Hudson (Prospect), supra note 224, at 421-423. This part of the argument is elaborated in great detail in Hudson (Progress), supra note 13, at 16-25.

230

and intensifying process of internationalization. Its main aspects were the emergence of new international organizations to handle sectoral issues of inter-state relations (notably telecommunications, transportation etc.) and the creation of new international agreements (what he later calls ‘international legislation’).231 The failure of international law to prevent the War seems to have embarrassed deeply the international law profession.232 On the antipodes, for Hudson, the War also gave rise to the more constructive realization that institutional and doctrinal structures needed to be reconsidered. Had the international community achieved more progress with international organization, Hudson writes, the War could have been prevented in the first place.233 Eventually, the War managed to catalyze a

‘new spirit’ that allowed mankind to believe that progress was again possible, and begin the reconstruction of the science of public international law.234 Against the backdrop of the War, Hudson invites a redefinition of the goals of international law and its reconstruction. The reconstruction effort involves two distinct but parallel tasks. On the one hand, rethinking the philosophical foundations of international law. On the other, developing new methods of international law making.

The War has left many specific problems which cry out to us for solution. They are so numerous, so varied, and so bewildering, their background is so new, so shifting and so complicated that even if the War had purified us as some people seem to believe, we could hardly