The Oxford Handbook of the Sources of International Law

1234 Pages·2018·39.182 MB·English

by  Samantha Besson and Jean d’Aspremont (Eds.)

The Oxford Handbook on
THE SOURCES OF
INTERNATIONAL
LAW

The Oxford Handbook on
THE SOURCES OF
INTERNATIONAL
L AW
Edited by
SAMANTHA BESSON
and
JEAN D’ASPREMONT
With the assistance of
SÉVRINE KNUCHEL
1
1
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Preface
The sources of international law have always constituted a thriving field of theoret-
ical and practical enquiry. This Handbook takes stock of those debates and contains
fifty- two cutting- edge chapters by fifty- six leading international lawyers and theo-
rists. An introduction co-a uthored by the two editors sets the scene by identifying
the origins, functions, centrality, and limitations of the doctrines of the sources of
international law, also addressing some of the main challenges with which they are
confronted, as well as presenting the aims of the volume and the chapters that com-
pose it.
The contributions to this volume, published here in English for the first time,
address central questions about the sources of international law. The Handbook
does neither follow the usual structure of discussions of sources of international
law to date nor a source- by- source model. On the contrary, the structure of this vol-
ume questions the previous order and presentation of the sources of international
law, and focuses on four novel perspectives: the histories, theories, functions,
and regimes of sources of international law. Chapters in Part I (Histories) pro-
vide detailed and critical accounts of how sources of international law have been
conceived by both practitioners and scholars during the history of international
law (from the scholastic period to the contemporary anti- formalist era), includ-
ing a chapter on the history of Article 38 of the Statute of the International Court
of Justice. Chapters in Part II (Theories) explore how the main theories of inter-
national law have addressed and understood sources of international law. Chapters
in Part III (Functions) examine the relationships between the sources of inter-
national law and the characteristic features of the international legal order that are
or should be related to international law-making. Chapters in Part IV (Regimes)
address various questions pertaining to the sources of international law in specific
fields of international law. The correspondence or, on the contrary, lack of corres-
pondence between the arguments made in the different sections constitutes one of
the innovative features of the Handbook.
Another characteristic of this volume lies in its ‘dialogical’ method: it contains
two chapters on each topic, with the author of the second chapter engaging as much
as possible with the arguments of the author of the first chapter. Yet, each chapter
may also be read independently from the other, as a self- standing contribution to
the topic. Cross- fertilization and coherence, as well as the emphasis on discrepancies
vi preface
among the views presented in the volume have been made possible thanks to the
excellent and intensive discussions that took place between authors of each pair of
chapters and each section of the book, but also across these divisions during the two
workshops that were organized in December 2014 and September 2015 in Fribourg.
We wish to thank warmly Dr Sévrine Knuchel, senior research assistant at the
University of Fribourg from 2015 to 2018, for her tremendous and unfailing editorial
assistance throughout the long process that brought us from the collection of first
abstracts to the finalization of fully fledged chapters. Special thanks are also due to
Dr Anne- Laurence Graf Brugères for her assistance in the first phase of the project
(2013–2 014), and especially in drafting the application to the Swiss National Science
Foundation and the organization of the first authors’ workshop. We are grateful
to Ms Merel Alstein and Mrs Emma Endean-M ills at Oxford University Press for
their support and kind forbearance during the long, and sometimes challenging,
process of putting this book together. We would also like to thank the University of
Fribourg’s Research Pool and the Swiss National Science Foundation for providing
vital financial support for the research project as a whole from 2013 to 2018, and
especially for two (hopefully memorable!) authors’ workshops we held in Fribourg.
Last, but not least, our special thanks are owed to all of our contributors for making
this ambitious project such a stimulating, formative, and worthwhile experience.
Thinking about sources goes on!
Samantha Besson and Jean d’Aspremont
Fribourg and Manchester, February 2017
Contents
Table of Cases  xvii
Table of International Instruments  xxxiii
List of Abbreviations  xlvii
List of Contributors  li
The Sources of International Law: An Introduction  1
Samantha Besson and Jean d’Aspremont
PART I THE HISTORIES OF THE SOURCES
OF INTERNATIONAL LAW
SECTION I SOURCES IN THE SCHOLASTIC LEGACY
1. Sources in the Scholastic Legacy: Ius Naturae and Ius Gentium
Revisited by Theologians  45
Peter Haggenmacher
2. Sources in the Scholastic Legacy: The (Re)construction of
the Ius Gentium in the Second Scholastic  64
Annabel S. Brett
SECTION II SOURCES IN THE MODERN TRADITION
3. Sources in the Modern Tradition: An Overview of the Sources of
the Sources in the Classical Works of International Law  85
Dominique Gaurier
viii contents
4. Sources in the Modern Tradition: The Nature of Europe’s
Classical Law of Nations  99
Randall Lesaffer
SECTION III SOURCES OF INTERNATIONAL LAW IN THE
NINETEENTH- CENTURY EUROPEAN TRADITION
5. Sources of International Law in the Nineteenth- Century
European Tradition: The Myth of Positivism  121
Miloš Vec
6. Sources of International Law in the Nineteenth- Century
European Tradition: Insights from Practice and Theory  146
Lauri Mälksoo
SECTION IV THE HISTORY OF ARTICLE 38 OF THE STATUTE
OF THE INTERNATIONAL COURT OF JUSTICE
7. The History of Article 38 of the Statute of the International Court
of Justice: ‘A Purely Platonic Discussion’?  165
Ole Spiermann
8. The History of Article 38 of the Statute of the International Court
of Justice: The Journey from the Past to the Present  179
Malgosia Fitzmaurice
SECTION V SOURCES IN THE ANTI- FORMALIST TRADITION
9. Sources in the Anti- Formalist Tradition: A Prelude to
Institutional Discourses in International Law  203
Mónica García- Salmones Rovira
10. Sources in the Anti- Formalist Tradition: ‘That Monster Custom,
Who Doth All Sense Doth Eat’  225
Upendra Baxi