Usual accounts of international law-making and international legal change focus on formal secondary rules. Others include societal and institutional facts. But international law consists of ideas too. Arguably it exists only in minds. To be sure then, the conditions of ideational change codetermine when and how international law is made, unmade, and otherwise changes. This is what this article is after. It first draws a general sketch of international legal change (including its making and unmaking) to then zoom in on its ideational elements, with a narrower focus on market opportunities for ideas. These market opportunities, it is argued, are determined by: paradigm shifts, struggles between competing schools of thought, the formation of distinct epistemic subfields, the core individuals’ different capitals, and changes in beliefs.

Le présent article se propose de concevoir l’influence de la notion de légitimité au-delà du rôle lui étant communément attribué en droit international humanitaire (DIH), en s’intéressant particulièrement à la relation entre ce dernier et les causes de la guerre, la nature des acteurs impliqués dans les conflits armés ainsi que les motivations des parties. En remettant notamment en question de l’idée d’une stricte séparation entre jus in bello et jus ad bellum, il est soutenu que les tentatives visant à isoler le DIH de ces questions de légitimité sont à la fois vaines, mais également à rebours de l’évolution et des logiques du régime. Il est en revanche défendu que la notion de légitimité en DIH se manifeste à travers deux modes de légitimation — l’un dérivant du statut, l’autre de la cause — à partir desquels la distribution de droits, devoirs, immunités, privilèges ou encore statuts s’opère et se voit justifiée au sein du régime. Ce faisant, de nombreux discours empruntant au second registre, souvent qualifiés d’aberrations du point de vue du DIH, ou dont la nature juridique est contestée, s’avèrent finalement être des arguments juridiques parfaitement valides et ancrés dans l’évolution et les logiques du DIH.

La schématisation de l’obligation juridique sous la forme d’une obligation de comportement ou de résultat poursuit un objectif cognitif tendant à en déterminer l’objet et l’exécution. Toutefois, en droit international, la démarche informe très souvent une logique de catégorisation. Or, dans les rapports de systèmes, le droit interne n’est pas seulement l’objet de l’obligation internationale, il est dans certains contextes la condition de son exécution. Par ailleurs, du fait de l’insuffisant accommodement de la schématisation à l’ontologie de l’obligation internationale, les doctrines dualiste et civiliste qui inspirent ses cadres de pensée en obèrent la valeur heuristique. Après avoir relevé l’incidence de ce porte-à-faux sur la saisie phénoménologique de l’illicéité, l’auteur suggère d’envisager l’obligation juridique sous la forme d’une proposition hypothétique. Cette démarche permet, en amont, d’identifier la position logique du droit interne dans l’obligation internationale; en aval, de mettre en lumière la part que prend son incompatibilité dans la concrétisation de l’illicéité.

This article reviews the “gaps” that allow for the creation of the “offshore” in international law and argues that these are instead constituted by constraints on our spatial imaginary of law than by any “real” gaps between state jurisdictions. The modern practices of sovereignty by states and non-state actors are at odds with the implicit geography of international law that assumes a static and fixed concept of territory. By rethinking the relevant legal spaces of international law and the sovereign practices that constitute the supposedly deterritorialized offshore, we can see that the offshore is actually onshore somewhere; we can reterritorialize the supposed deterritorialized competences. This article identifies a desynchronization between state territories and the actual exercise of sovereignty that presents as pseudo deterritorialization. Yet if both the concept of sovereignty and the implicit geography of international law confirm and reinforce one another in international law discourse, international lawyers are blind to the changing “landscape” of sovereignty in international law.

This article sets out the major tenets of new materialism and maps out its implications for international law. It considers what new materialism might offer for those of us working within international law in the way of new insights, resources, practices or politics. It first sets the contours of new materialism within the broader material turn. It then elaborates three main tenets of new materialism’s methodology, theory, and ontology: its attention to matter in its physicality; the embedded and entangled subject; and the vitality or agency of objects. The article focuses on how new materialist work might help us to understand, first, subjectivity and second, power and accountability in international law. It concludes that new materialist approaches offer important and compelling insights, working against entrenched categories and structures that continue to perpetuate or excuse violence and harm in international law’s doctrines and practices. These insights provide resources for rethinking power and subjectivity, and the role these play in international law. However, those of us working to consider how we can respond to pressing crises of justice and coexistence within international law may find new materialism most powerful when brought into relation, and deep conversation, with more structural methodologies. Notably ‘older’ (Marxist or historical) materialisms grasp embedded power relations and deep-rooted systemic harms in more concrete ways. This is, the article concludes, a conversation that international law scholars are well placed to contribute to, deepening both ‘old’ and ‘new’ materialist insights for international law.

The article unpacks the notion of western centrism in contemporary international law by developing a framework to capture its varied patterns. It argues that western centrism can have three different manifestations – systemic, evaluative, and professional – depending on whether it refers to the rationality, the narratives, or the actors at play in the international legal field. The article then discusses three theoretical approaches that can help scholars dealing with western centrism in international (legal) scholarship. These are: (i) the critical readings of those scholars that explain international law through the lens of power and domination; (ii) the Stanford school of sociological institutionalism, which explains international institutions and norms through the role of culture and global scripts; and (iii) post-Bourdieusian reflexive sociology, which analyses the roles of transnational legal elites in colonial and post-colonial settings. Finally, the article reconstructs the experience of the Caribbean Court of Justice in the light of western centrism, demonstrating that, different from what is often argued in the literature, the Court is not a failed replica of the Court of Justice of the EU, but an institution in its own right, with its own approach to international law, its own successes and failures.

Comparison is a very common tool for international lawyers. In fact, international law is built around, and draws upon, constructions necessitating an exercise of comparison. In recent years, however, calls have been made to turn the familiar tool of comparison into a central way to engage with international law. This is the idea of those spearheading the rise of a new field called comparative international law. This article critically examines the promotion of comparison as a central mode of engagement with international law and scrutinizes some of the main features of the comparativist project. It particularly shows that the comparativist project, far from laying bare the plurality of international legal thought and practice, enables a thought-colonizing enterprise. The article ends with some reflective observations on the possibility of limiting colonizing thinking in international legal studies. In doing so, it argues that it must remain possible for international lawyers to engage with alterity in a way that does not unilaterally manufacture the “other,” silence it, and speak on its behalf. This approach is called counter-comparability.

International climate law is often represented as a set of rules and institutions that scholars have tracked for nearly 30 years, whether to document them, assess their effectiveness, or prescribe reforms. This article, in contrast, adopts a critical perspective to uncover the everyday life of international climate law. From this viewpoint, international climate law is a purposive endeavour that is grounded in the small places where people create and live out the law. ‘International climate lawyers’ are among those who produce the law within these sites, and they propagate international climate law across multiple institutions. Using legal-ethnographic description, the article shows how lawyers operationalize the law in the United Nations climate regime, World Bank, and international human rights system. In each case, lawyers effect some overlapping aspirations for the law as well as legal techniques, but they also adapt their practices to the places where they work. In the process, they simultaneously build and diversify their professional community. Both in their field and community then, lawyers generate heterogeneity and homogeneity through the proliferation of international climate law. They do so on multiple registers, in terms of diverging ethical commitments, multivalent legal forms, and relative authority to speak the law, notably between institutions and the Global North and Global South. If lawyers reproduce sameness and difference in international climate law, moreover, this article suggests they may reify analogous traits in the broader field of international law, including persisting power relations.

This article uses the metaphor of the hall of mirrors to produce three distinct images of the international lawyer. The hall of mirrors refers here to the extent to which international legal discourses are built on self-referential mechanisms tantamount to mutually reflecting mirrors, by virtue of which movements and postures are reproduced ad infinitum without disclosing the origin thereof. According to the first image produced by virtue of the metaphor, the international lawyer feels invincible and fully makes use of the hall of mirrors to allow international legal discourses to obscure their origins and thrive in foundationlessness. The second image depicts a vulnerable international lawyer who is deprived of self-referential mechanisms for the production of international legal discourses because the mirrors have been shattered or the light turned off or simply because she has closed her eyes. The third image is that of a self-reflective international lawyer who is neither invincible nor vulnerable but consciously standing between the mutually reflecting mirrors wearing fissured spectacles and with no intention to smash the mirror, turn off the light or close her eyes. By developing these three distinct images, this article sheds light on how the contingency of legal doctrines, modes of legal reasoning and legal categories is experienced by international lawyers.

An increasing number of international law scholars over the last few years have started to turn their attention to the study of political economy. To what extent can this trend be considered an indication of an underlying ‘disciplinary turn’? How should one understand the phenomenon of disciplinary turns? The answer we propose to this question in this article proceeds from the assumption that not all disciplinary shifts follow the same logic. Unlike the linguistic or the historical turn, the turn to political economy in contemporary international law does not represent an exercise in inter-disciplinary exploration. The concept of political economy used in international law has very little to do with the actual discipline of political economy. It is much more diffuse and unfocused in theoretical terms. What gives it its essential sense of identity is not any form of distinct methodological orientation, but rather its basic usefulness as a potential marker of critical self-distancing vis-à-vis the mainstream international law tradition and its ideological function as a mediating device for the expression of a deep-seated concern about the structural injustices of modern capitalism.

One of the most striking trends in contemporary international law (IL) scholarship is the turn to empirical research methods. Some see this as sign of progress, whereas others call for caution or even show hostility. With a view to the future of IL scholarship, however, all sides in this at times heated debate seem to have considerable problems keeping a clear focus on the key question: What are the implications of this empirical turn in terms of philosophy of legal science, of the social understanding of IL, and, not least, of the place of doctrinal scholarship after the alleged Wende? What is needed, we argue, in order to answer this question is not yet another partisan suggestion, but rather an attempt at making intelligible both the oppositions and the possibilities of synthesis between normative and empirical approaches to law.

Based on our assessment and rational reconstruction of current arguments and positions we outline a taxonomy consisting of the following three basic, ideal-types in terms of the epistemological understanding of the interface of law and empirical studies: toleration, synthesis and replacement. This tripartite model proves useful with a view to teasing out and better articulating implications of and interrelations between positions. As such the model: i) provides a framework to better situate arguments about the role of empirical studies in IL; ii) helps identify real epistemological stakes in order to overcome ‘trench wars’ – or worse: absence of dialogue and genuine argument; and iii) thus ultimately contributes to the development of a genuine basic science-of-law.

Martti Koskenniemi's From Apology to Utopia is (rightly) considered a classic in international legal theory. The study tracks the oscillation of international legal argument over hundreds of years to reconcile seeming incongruencies: legal reasoning does not provide determinacy, but it brings weighted direction to political conflict; legal categories are amorphous, yet also an autonomous field of study. Though not commonly engaged, the methodological and theoretical posture of the book is significantly informed by a theory of history. This article focuses on this historical element within the text as a means to analyze some of its central claims and situate it within a broader sociology of knowledge production particular to late twentieth century legal academia.

A certain body of mythology has emerged in recent years around Martti Koskenniemi's From Apology to Utopia (FATU). At its heart lies a group of received wisdoms that tell us that FATU should essentially be considered a work of postmodern scholarship, that it provides a typical illustration of the so-called deconstructivist approach, and that its single most significant contribution to the field of international legal theory lies in its discussion of the subject of legal indeterminacy. In this article, I seek to challenge and displace this set of narratives, by excavating and restoring to the surface FATU's original intellectual project: a highly ambitious attempt to revive the traditional enterprise of ‘legal science’ by marrying Kelsenian legal positivism with Saussurean structuralist semiotics. In doing so, it succeeded in developing a set of analytical idioms and reasoning protocols that gave the international law profession not only a reason but also the necessary intellectual materials to revolutionize its day to day understanding of the essential character of international legal practice. Thus, far from being a manifestation of any kind of postmodernist sensibility, FATU, I am going to argue, represents, in fact, the exact opposite of it.

This contribution to the Symposium celebrating the Twenty-fifth Anniversary of Martti Koskenniemi's From Apology to Utopia explores the relevance of the book for contemporary theorists of the international world. In doing so, the article puts Koskenniemi's classic in a contest with John Yoo's recent book, Point of Attack. The purpose in doing so is three-fold. First, it is to illustrate the contemporary use of Koskenniemi's structuralist method. Second, it is to show how the use of the method, with its attendant reliance on modes of legal thought, might give pause to international thinkers seeking to reinvigorate particular structures of argument from the nineteenth century. Third, the two books are put into conversation in order to highlight what I believe to be the very productive results of the structuralist method that have, for the most part, been dormant for a generation.

This article presents an account of international law and its possible future that revolves around three key themes: responsibility, fraternity, and sustainability. These three themes were promoted by Charles Doherty Gonthier, visionary justice of the Supreme Court of Canada from 1989 to 2003, for whom the inaugural lecture where this article was presented is named.

There are difficult global challenges that need to be addressed. In response, many have argued for the increased constitutionalization of international law. An argument is often also made that the international order is already constitutionalized in some meaningful sense and that there are founding conditions within the international order that represent something like a global constitution. Nevertheless, when surveying the literature on constitutionalization one is often struck by a general ambiguity about what the term means and with how constitutionalization is meant to operate between theory and institutional practice. In particular, there seems to be an overall ambiguity regarding what is being constituted by the processes of constitutionalization, about how these processes operate, and with whether this legal order is in fact creating the type of progressive cosmopolitanism that is often assumed. To address these ambiguities, this article will seek to better understand what appeals to constitutionalization generally mean and to expose key conceptual problems. The goal in doing so is to highlight areas that need greater conceptual attention and to recommend potential solutions, so that more cosmopolitan minded scholars can feel more confident in prescribing constitutionalization as part of their normative catalogue.

This article investigates T. O. Elias's constructions of past and future Africas in Africa and the Development of International Law. It locates Elias within Nigeria's educated elite and its oscillating constructions of past and future Africas, and turns specifically to Elias's romanticized African past of the great medieval empires as a source of legitimacy within the broader ‘development’ of international law. The article works through his depiction of ‘customary’ law in Nigeria and how the African past maintains its presence in current law, and then addresses Elias's depiction of the future represented by new pan-African institutions. Finally, the article discusses Elias's depiction of a liberating future or ‘modern’ international law – the move from consent to consensus – in which Africa seems important only within the broader population of new states, and how his conception of international law – citing Jenks and Jessup, Friedmann and Falk – with its commitment to law's reflection of society, fits comfortably within the traditions of a modern sociological jurisprudence.

This article, focusing on Alejandro Álvarez's Le droit international américain (1910), locates Álvarez in his second home, Paris, within the French sociological/historical school of ‘solidarist’ legal thought. Álvarez's book provides a heroic image of Latin America developing its own regional international law away from the decadent forces of Europe and making significant contributions to international law generally. To tell his story, Álvarez also highlights the dark side of his native continent, in part to sell Álvarez as a practitioner of a bold method. Álvarez adopts racial hierarchy as part of his explanatory model, displaying the tendency of Latin Americans of Spanish descent to identify with and distance themselves from the metropole while separating themselves from the ‘other’. And despite the progressive manifesto rhetoric of the book and its claims for the Latin American role, the substance of Álvarez's international law was ultimately fairly domesticated for his French audience.