Regards d'une génération sur le Droit International

The book aims to present a generation of international law scholars, those born between 1955 and 1965. Since a generation, like a people, cannot speak, it is represented by selected scholars. The representatives featured in this book are: Alberto do Amaral Jùnior, Tony Anghie, Mariano J. Aznar Gómez, Ebrahim Beigzadeh, Nathaniel Berman, Andrea Bianchi, Laurence Boisson de Chazournes, Esther Brimmer, Jorge Cardona Llorens, Guiseppe Cataldi, Hilary Charlesworth, Olivier Corten, Andrea Gattini, Aeyal M. Gross, Emmanuelle Jouannet, Slim Laghmani, Djedjro Francisco Meledje, Maki Nishiumi, Georg Nolte, Ki-Gab Park, Anne Peters, Hélène Ruiz Fabri, Mohamed Mahmoud Ould Mohamed Salah, Philip Sands, Jean-Marc Sorel, Bakhtiyar Tuzmukhamedov, and Zou Keyuan. Some scholars one would expect are missing, such as Eyal Benvenisti, Jan Klabbers, and Anne-Marie Slaughter.

It is a global generation, but its roots are firmly planted in the West. Even the non-Western authors mainly refer to Western thinking, and most have spent some time in a leading French or US institution. The global generation has not done away with borders. Rather, national affiliation remains of great importance: most of the 27 authors are working for an institution in their country of origin. A small group is living in the European Research Area, proving the attractiveness of Swiss science policy; and a few are, as Tony Anghie puts it, ‘Between the worlds’.

The generation presented in this book is not defined only by age; it has a shared identity, something which is often also attributed to a people. The editors explain this common identity by referencing experience in the formative years, which disconcertingly appears to end with one's dissertation (at 3; is one of the promises of scholarship not a lifelong process of Bildung?). This experience is negatively defined as not having been influenced by dominant ideologies: either that of 1968 or the liberalism of the 1990s. At a closer look, the generation appears also to have been forged by its opposition to some streams of scholarship in the US – particularly the Neo-conservative movement. Accordingly, the US scholarship is represented by Nathaniel Berman and Esther Brimmer, who gives a straightforward account of the normativity and necessity of international law, and not by Jack Goldsmith, whose writings certainly left a profound mark on the discussions of this generation. The project has a strategic element: it asserts – implicitly but proudly – for that entire generation of international scholars an identity which Ronald Rumsfeld contemptuously called ‘old Europe’. It appears close to the European Society of International Law and informs much of what is published in the European Journal of International Law. Not least for that reason, the book is important: later scholars, when they want to know where their discipline comes from, will probably, and with good reason, turn to it. It is an exercise in writing history and thereby defining, as Emanuelle Jouannet forcefully explains, what later generations will and must contest (at 210).

The authors were called to present their ‘vision du droit international à l’aube du XXIème siècle’ (at 5). Many of the resulting pieces are highly inspirational, particularly those which present the individual Bildungsgeschichte, which tell the story of why and how the author became an international scholar. But does the generation's identity comprise a common vision for the future of international law? The editors do not venture to sketch one, leaving that task to the reader. One common element is that all authors continue to consider international law as a force for good, as vague as this is. Although not explicitly stated by every author, most would agree that an international lawyer is ‘committed to substantive justice and the ideals of universal emancipation, peace, and social progress’ (Gross, at 204), and that international law, more than any other field of law, ‘attempts to address the largest questions’ (Anghie, at 44). Emanuelle Jouannet even holds that ‘le droit international … porte des utopies qui vont jusqu’à espérer à travers lui, à une humanité mondiale maîtresse de sa destinée’ (Jouannet, at 220). To the sceptics one might respond with Hélène Ruiz Fabri ‘[l]e propos est naïf, certes, mais, si j’avais voulu perdre toute naïveté, j’aurais fait un autre métier’ (at 327). In that respect, they share the outlook of earlier generations, a legacy which is represented, more than by anybody else, by Thomas Franck, and, in particular for the French speaking world, Georges Abi-Saab, as the footnotes prove.

Another common thread which profoundly distinguishes this group from earlier international law scholars is intense uncertainty. It comes in many forms. One uncertainty is how to grasp the current international system and the thrust of its development. For many, the hopes of the 1990s that the international scene would now be dominated by international law rather than by superpower rivalry and the ensuing disappointment form additional formative experiences. Several discern the possibility of further deterioration because alienated populations in the Third World have ’far more access to weaponry and access to the imperial center’ (Anghie, at 43), or because of the hegemon's deliberate disregard (Gross, at 200; Sands, at 392). The ambivalence surrounding the concept of the ‘international community’ is a further example of this uncertainty. Another aspect is the cognizance of the impossibility of living up to the traditional standards of good scholarship in light of the wealth of the material available (Bianchi, at 98; Ruiz Fabri, at 340).

From a scholarly perspective even more important is the impact of the critical legal studies movement, as David Kennedy's and Martti Koskenniemi's texts constitute core reading for most authors (e.g., Bianchi, at 97; Charlesworth, at 164; Jouannet, at 215; Sands, at 385). That reading, for many a self-professed watershed, makes it impossible to divorce international law from what is seen as ‘wrong’ in international relations. International law is an element of the entire international system, not just the ‘good’ part. Many also acknowledge that more international law and more international institutions are not always the answer, but may rather be part of the problem. The idea of progress itself is in deep trouble.

Important as these texts are, few of the authors remained Crits. As Nathaniel Berman puts it, they belong to ‘a generation for whom all critiques are familiar – and yet, for whom the failure of its predecessor generation to install a radically different world also produced a sense of a need to preserve the legitimacy of prevailing institutions’ (at 88; Nolte, at 277). This generation understands legal scholarship as a predominately practical discipline – i.e., an academic exercise that participates in practical legal discourses which, by necessity, are constructive. But the deconstructivist lesson has been assimilated. The open presentation of doubts and even contradictions in one's own thinking is a common thread. It is not unusual to acknowledge that one's approach is ‘replete with contradictions and unresolved tensions’ (Anghie, at 44; similarly Corten, at 174). A clear-cut vision of a new world order, be it based on bureaucratic networks, on sovereign states as unitary rational actors (but see Mohamed Salah, at 381), or an international public law that succeeds in becoming truly public is largely incompatible with the vision of this generation. No one professes a clear theoretical affiliation, and Sorel sees ‘une génération sans boussole particulière’ (at 395). ‘Bricolage’ and ‘pragmatic’ are key words; Nolte holds that the ‘traditional Max Planck pragmatism is still the backbone of most international lawyering’ (at 283).

Not all members of that generation have been deeply affected by deconstructivist thinking, and some older visions continue to inform some of them. Among these, system building remains the most important. The vision for international scholarship is therefore continuous system building in light of the new challenges, including, in particular, the expansion of international law (Alberto do Amaral Júnior, at 32; Cardona Llorens, at 138). Based on Norberto Bobbio and therefore Kelsian thinking, these authors position the coherence of international law as central. Yet, do Amaral Júnior is certainly in a minority position when he assumes that the systematic reconstruction of international law, even using postmodern techniques as introduced by Eric Jayme to international private law, can ‘assure la réalisation de la justice concrète’ (at 33). As for further developments, the only recognizable vision which goes beyond resistance to the Neo-conservative onslaught is that of constitutionalization (Aznar, at 70; Cardona Llorens, at 148; Peters, at 323; similarly Mohamed Salah, at 382). Aznar even professes the Kelsian project of a World Court (at 72). Yet, one searches in vain for ideas of what a truly public global order could look like and how it could be achieved. No author sketches a bold vision like Jürgen Habermas in his recent writings. Perhaps the authors are too much internationalists to conceive of any radical change. Yet, this modesty may have a virtue: overstretched institutional projects potentially do more harm than good. Thus, the bottom line on international law is, as Charlesworth puts it, ‘a keen sense of its complicities and silences and a cautious optimism about its transformative potential’ (at 167).

These brief remarks cannot do this book justice. Whilst reviewing it, I spent an evening in Berlin with old friends, only one of whom is a lawyer, and he is in real property. We were all born between 1955 and 1960, and at some point we started to reflect on the specificities of our generation. The book came to my mind and I presented some of its core statements and reflections. They dominated the ensuing discussion that went on late into the night. Never before had I seen an international law book have a similar effect on such a diverse group. The real property lawyer even decided to buy and read it. A wise decision.

Individual Contributions

Alberto do Amaral Jùnior, Le dialogue des ‘sources’ fragmentation et cohérence dans le droit international contemporain;

Tony Anghie, Between the worlds;

Mariano J. Aznar Gómez, Une vision provisoire du droit international actuel;

Ebrahim Beigzadeh, L’évolution du droit international public;

Nathaniel Berman,

Power and Irony, or International Law After the Après-Guerre;

Andrea Bianchi, Une génération de ‘communautaristes’;

Laurence Boisson de Chazournes, Le droit international, ‘la vie des autres’ et le monde ‘Un’ quelques notes tirées d’un carnet de voyage;

Esther Brimmer, International Politics Need International Law;

Jorge Cardona Llorens, Ma vision du droit international;

Guiseppe Cataldi, L’internationaliste contemporain;

Hilary Charlesworth, International Law : A View from the Antipodes;

Olivier Corten, Le droit international comme sport de combat;

Andrea Gattini, Le droit international, de la panthère rose à aujourd’hui;

Aeyal M. Gross, After the Falls International Law between Postmodernity and Anti-modernity;

Emmanuelle Jouannet, Le même et l’autre;

Slim Laghmani, Le nouvel ordre politique international et son impact sur le droit international;

Djedjro Francisco Meledje, Ma vision du droit international à l’aube du XXIème siècle;

Maki Nishiumi, Le droit international comme théâtre d’enjeux;

Georg Nolte, Between Informed Pragmatism, Morality and Form;

Ki-Gab Park, Northeastern Asia and International Law in the 21st century;

Anne Peters, Le droit international expliqué aux enfants;

Hélène Ruiz Fabri, Le droit international entre prudence et espérance;

Mohamed Mahmoud Ould Mohamed Salah, Le droit international, droit du plus fort?;

Philip Sands, What is your vision of International Law at the turn of the 21st Century?;

Jean-Marc Sorel; Le droit international au début du XXIème siècle un salutaire chaos permanent mêlant humanisme et réalisme;

Bakhtiyar Tuzmukhamedov, Scattered Reflections on the International Law in the Russian Legal Landscape;

Zou Keyuan, The Rise of Asia and the Development of International Law in the 21st century