Softness in international law: A self-serving quest for new legal materials: A reply to Jean D'Aspremont

European Journal of International Law

Volumn 20, Issue 3, 2009, Pages 897-910

  D'Amato, Anthony ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 74849102178     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chp067     Document Type: Article

References (38)

1. D'Aspremont, 'Softness in International Law: A Self-Serving Quest for New Legal Materials', 19 EJIL (2008) 1075.
2. V. Vernadsky, The Biosphere (1986).
3. Teubner, 'The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy', 31 Law & Society Review (1997) 763, at 783.
4. The self-regulating theory of systems, called autopoiesis, is further discussed in D'Amato, 'International Law as an Autopoietic System', in R. Wolfrum and V. Roben (eds), Developments of International Law in Treaty Making (2005), at 335.
5. D'Amato, 'International Law as a Unitary System', in D. Armstrong (ed.), Routledge Handbook of International Law (2009), at 101.
6. The environment is external to the system, by definition.
7. J.L. Austin introduced the term 'performative' to account for the special case where the issuing of the utterance is the performance of an action: J.L. Austin, How to Do Things with Words (1962).
8. Basically the energy required to operate the filter would add external positive entropy to the system which would cancel out the negative entropy that the Demon was trying to achieve.
9. The Islamic advocate is going beyond the system of equal rights, in a fashion analogous to the problem with Maxwell's Demon. However, in legal argument, there is no a priori designation of the limits of a system.
10. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), Jurisdiction and Admissibility [1984] ICJ Rep 392.
11. I spell out this argument with examples from the Court's opinion in D'Amato, 'Trashing Customary International Law', 81 AJIL (1987) 101.
12. These are not necessarily the correct norms; they are simply the interventionist norms.
13. Tasioulas, 'In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case', 16 Oxford J Legal Stud (1996) 85.
14. Buchanan, 'From Nuremberg to Kosovo: The Morality of Illegal International Law Reform', 111 Ethics (2001) 673.
15. Ibid., at 686.
16. Selling protection was one of the earliest forms of crime. A group of armed bandits would go from farm to farm selling farmers protection against their own predation. Soon the bandits by cooptation became the king's soldiers, and the protection payments they extracted became known as 'taxation'. It is not altogether edifying to look too closely into the origins of governments.
17. Franklin Delano Roosevelt's campaign in 1932 for the Presidency hardly mentioned or alluded to Prohibition or the widespread criminality accompanying it. He saw no point in getting into a debate over theology or morality. Yet when he was elected, one of the first things he did was to sponsor and encourage the 21st Amendment to the Constitution which repealed Prohibition.
18. See H.L.A. Hart, The Concept of Law (1861), at 213. For an early critique see D'Amato, 'The Neo-Positivist Concept of International Law, 59 AJIL (1965) 321.
19. Exercising due caution, however, the international law system has anticipated maladaptive rules. These are called rules of jus cogens.
20. For example, the authors of a widely read book reduce international law to game-theoretic strategies, thus losing sight of international law itself: see J.L. Goldsmith and E.A. Posner, The Limits of International Law (2005).
21. See generally M. Ridley, Evolution (2nd edn, 2004), at 91-132.
22. In turn the predators also survived if they were partially successful in overcoming the prey's defences. However, if they were too successful and extinguished their prey, they would also become extinct.
23. The perspective we now have on World War II is that Hitler's primary motivation was a genocidal desire to rid Europe of Jews and Slavs. These goals confl icted with Germany's optimal military strategy, to the consternation of his generals. In particular, Hitler's biggest military blunder was to leave Great Britain alone while opening a second-front war against the Soviet Union in 1941. His motivation was not military but rather to rid the world of Slavs (whom he sometimes confused with Jews). See, e.g., D. Irving, Hitler's War (2002).
24. Are the norms 'selfish' in Dawkins's sense? See R. Dawkins, The Selfish Gene (1976). International norms are selfish in the sense that they want to preserve the aggregate of states. But since each state has the same norms (international law does not vary in content from state to state), each state has the same genetic heritage, like identical twins. Thus the true phenotype - if we want to continue the Dawkinian analogy - is the international system and not the individual states within it.
25. The ancient Hittites had already developed the following rules of international law: legal equality of states, sanctity of boundaries, pacta sunt servanda, diplomatic immunity, and return of fugitives. See G. Beckman, Hittite Diplomatic Texts (2nd edn, 1999).
26. Customary law arguably more closely resembles common law.
27. Pitt Cobbett, Leading Cases on International Law (4th edn, 1922), at 5.
28. C. De Visscher, Theory and Reality in Public International Law (1957), at 149. His book was hailed as being realistic in according legal deference to the most powerful states. In fact his theory is deeply unrealistic. If international law gave greater preference and privileges to powerful states over the weaker states, then the latter would reject it. Law is a constraint on power, not a servant of power. Moreover there would be conceptual absurdities: for example, if a state acquires nuclear weapons, will it suddenly get more rights under international law? And who would parcel out those extra rights? And who would defer to them?.
29. In addition, different observers will observe the emergence of a path at different times.
30. Some writers regard the term 'state practice' as including opinio juris. Clarity is served, however, by keeping apart the material and psychological elements of custom.
31. Many states engage in torture; does that mean it is a general practice of states? Professor Arthur Weisburd so asserted, in a criticism of my views in Weisburd, 'Customary International Law: The Problem of Treaties', 31 Vanderbilt J Transn'l L (1988) 1.
32. I replied that the practice of states was to outlaw and criminalize torture; this nearuniversal practice belied the claim that the illegal act of torture constituted international customary-law practice: see D'Amato, 'Custom and Treaty: A Response to Professor Weisburd', 21 Vanderbilt J Transn'l L (1988) 459.
33. For a discussion of articulation as an objective substitute for opinion juris, see A. D'Amato, The Concept of Custom in International Law (1971), at 74-87.
34. International Law Commission, Y earbook (1950), at 26.
35. In other words, the rule of law is the source of the rule of law. This seemingly paradoxical conclusion was reached, and I believe proven, by H.L.A. Hart in his famous The Concept of Law (1961).
36. See M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2006).
37. PCIJ Rep., Ser. A, No. 10 (1927), at 4.
38. The tipping point was the Court's finding that states are presumptively free to act unless blocked by a rule of international law. But international law is clearly not a set of discrete rules as legal positivism asserts. Quite the contrary: the rules are like valleys in a fitness landscape, the space between rules is hilly country. The base of a valley acts as a strange attractor upon nearby contentions, pulling them down into a rule if there is no competing contention. But in any confl ict or controversy, there are always two sides to the story, two competing contentions. The valley is not deep enough to attract both contentions; they end up on the side of a hill. In brief, law is everywhere; it has greater attraction at low levels on the fitness landscape. But when it is not at low levels, it is still stronger than no law at all. There is no lawless zone where states have freedom of action.