Softness in international law: A self-serving quest for new legal materials: A rejoinder to Tony D'Amato

European Journal of International Law

Volumn 20, Issue 3, 2009, Pages

  d'Aspremont, Jean ^a  

^a UNIVERSITY OF AMSTERDAM   (Netherlands)

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[No Author keywords available]

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EID: 74549120769     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chp059     Document Type: Article

References (28)

1. 19 EJIL (2008) 1075.
2. D'Aspremont, 'Les dispositions non normatives des actes juridiques conventionnels à la lumière de la jurisprudence de la Cour internationale de Justice', Belgian Rev Int'l L (2003) 496.
3. See d'Aspremont, supra note 1, at 1081.
4. Although in different terms and for different purposes, the same distinction is used by Kal Raustiala in his very thought-provoking criticism of soft law: see Raustiala, 'Form and Substance in International Agreements', 99 AJIL (2005) 581.
5. The concept of law defended herein was nonetheless deemed overly 'absolute'. See the interesting contribution of Goldmann, 'Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority', 9 German Yrbk Int'l L (2009) 1865.
6. See, among others, D'Amato, 'Is International Law Really Law', 79 Northwestern U L Rev (1985) 1293.
7. d'Amato, 'What Counts as Law?', in N.G. Onuf (ed.), Law-Making in the Global Community (1982), at 83.
8. d'Amato, 'It's a Bird, It's a Plane, It's Jus Cogens', 6 Connecticut J Int'l L (1990) 1.
9. Some additional thoughts on that phenomenon can be found in d'Aspremont, 'La Doctrine du Droit International face à la Tentation de la Juridicisation Sans Limites', 112 Revue Générale de Droit International Public (2008) 849.
10. This is particularly surprising as D'Amato had elsewhere expressed strong criticisms of the positivistic approaches of scholars like H.L.A. Hart or N. MacCormick.
11. D'Amato, 'The Neo-Positivist Concept of International Law', 59 AJIL (1965) 321.
12. 'The Moral Dilemma of Positivism', 20 Valpariso U L Rev (1985) 43.
13. Some of the ideas expressed above can also be found in D'Amato, 'International Soft Law, Hard Law, and Coherence', Northwestern University School of Law, Public Law and Legal Theories Series, No. 08-01, available at: ssrn.com/abstract_=_1103915.
14. D'Amato, 'Why is International Law Binding?', Northwestern University School of Law, Public Law and Legal Theories Series No. 08-23, available at: ssrn.com/abstract_=_1157400.
15. As was explained in the article being commented on, the distinction between legal act and legal fact is commonly ignored in the English-speaking literature. This was pointed out by James Crawford in his commentaries on the articles of the International Law Commission on State Responsibility: Commentaries, ILC Annual Report 2001, Ch. IV in Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10), at 68.
16. For a still valid systematization of the distinction between legal acts and legal facts see D. Anzilotti, Cours de droit international, premier volume: introduction - theories générales, translated by G. Gidel (1929), esp. chap. III, at 333-456.
17. See the interesting contention - although unproven in practice so far - made by B. Kingsbury according to whom 'publicness'- i.e. the claim that law has been wrought by the whole society, by the public, and the connected claim that law addresses matters of concerns to the society as such - is a constitutive element of law: see generally Kingsbury, 'The Concept of "Law" in Global Administrative Law', 20 EJIL (2009) 23, esp. at 31.
18. Acknowledging the central role played by self-interest does not necessarily lead to a neorealist understanding of international law. For an understanding of international law accommodating the central role played by self interests see d'Aspremont, 'The Foundations of the International Legal Order', 18 Finnish Yrbk Int'l L (2007) 261.
19. For an example see the fl edging obligations pertaining to the adoption of democratic procedures for the designation of the effective leaders of a state which, despite serving the self-interest of states of a perceived reinforcement of global stability are also directed at some general interest.
20. J. d'Aspremont, L'Etat non démocratique en droit international. Etude du droit positif et de la pratique Contemporaine (2008), esp. at 263-293.
21. Some additional thoughts can be found in d'Aspremont, 'Post-Conflict Administrations as Democracy-Building Instruments', 9 Chicago J Int'l L (2008) 1.
22. D'Amato, 'The Need for a Theory of International Law', Northwestern University School of Law, Public Law and Legal Theory Research Paper Series, available at: ssrn.com/abstract=.
23. See T. Skouteris, The Notion of Progress in the International Law Discourse (forthcoming, 2009).
24. M. Koskenniemi, From Apology to Utopia (2005), at 565-583.
25. It is worth stressing that when describing their understanding of international law, critical legal scholars have been prone to use the words 'language' and 'discourse' as interchangeable despite the entirely opposite project that each of these words conveys.
26. See Pildes, 'Conflicts Between American and European Views: The Dark Side of Legalism', 44 Virginia J Int'l L (2003-2004) 145, at 154.
27. Mälksoo, 'The Science of International Law and The Concept of Politics', 76 British Yrbk Int'l L (2005) 383, at 500.
28. Jouannet, 'French and American Perspectives on International Law: Legal Cultures and International Law', 58 Maine L Rev (2006) 292.