Sahib Singh

Critical international legal thought often invests considerable faith in the potential of the subject; I argue that this may, in some cases, be a misplaced strategy. This essay excavates and critiques the image of the critical subject and the critic that is presupposed by Koskenniemi in his 'From Apology to Utopia'. It proceeds in three steps. Part I examines how the various theories and methods of Koskenniemi's text leaves us with no knowledge of the critical subject. Part II demonstrates that his text presupposes into existence a subject rooted in a Sartrean metaphysic; identifying the elitist, unhappy and constantly burdened character of this subject. Part III then demonstrates how this critical subject is structured by specific contradictions that may disable it from realizing the emancipatory politics of critical thought. More importantly, it attempts to show how this subject may very well embed the prevailing cultural ideology of our time, rather than challenge it. And yet, despite these antinomies and limits, many young scholars still continue to believe in this image of the critical subject; because this is the work of myth.

This is a critical introduction to the symposium on “The Fundamental Rights of States”. Whether such rights exist, the bounds of their existence, or whether they ought to be striven towards are questions of considerable import in the wake of the Greek sovereign debt crisis or even given the ongoing Palestinian struggle for permanent sovereignty over their natural resources. I briefly outline how we might consider the question: is there any progressive political value in buttressing the state and its autonomy, through the doctrine of fundamental rights, in today's neoliberal world? First, I examine how we may progressively look at fundamental rights - as doctrine, narrative, memory or discourse. Second, I question the extent to which it is useful to see competing subjectivities, i.e. the maligned state against technocratic institutions, in a time where neoliberal logic has come to structure the workings of the state. It becomes quickly apparent that the discourse of fundamental rights may be used to both resist neoliberalism and enable it.

In this paper I excavate and critique two dominant images of the international lawyer that emerge from the oeuvre of Martti Koskenniemi. In doing so, I hope to briefly shake the faith critical international legal thought so often invests in the potential of the subject. The first image is of the critical subject that emerges from From Apology to Utopia. She also happens to be a projection of the critic; governed by both elitism and unhappiness, for whom freedom is always both a constant and overarching possibility, and yet always embodied in a fleeting moment. By way of critique, I question whether this critic(al subject) may not unwittingly embed the very aspects of liberal legal and political thought that she seeks to challenge. The second image is of the professional lawyer, left on the shores of pragmatism. She emerges from my reading of Koskenniemi’s The Gentle Civilizer, the 2005 Epilogue and his Kantian texts. She is constructed as Koskenniemi’s critique is domesticated; taking a last, and perhaps futile, refuge in an ethics that is needed to buttress an identity which can aid international law’s moral regeneration. Koskenniemi’s writings urge today’s international lawyers to put their sense of identity into question; this paper asks which identities (and their possibilities) he embeds as he does so.

This article critically examines the re-entrenchment of formalism in European international legal thought. It does so by looking at how such a theory (and ideas more generally) may come to seem natural and persuasive within the discipline. Narrative analysis may be used as a critical method to look at how theories persuade, how they are 'sold' and how they produce certain mentalities. Formalism generally (and specifically, source formalism) is broken down as part method, part aesthetics, and part ideology (Section I). The theory is also critiqued for its concern with coherence and determinacy, its own imminent intellectual necessity, and with disciplinary progress. These narrative tactics are exposed as geared towards establishing theoretical dominance within the discipline (and in relation to other theories) (Section II). Specific variants of formalism also tend to eschew any analysis of the multitude of historical conditions and struggles from and for which it emerged. The contemporary European stance emerges against a background of anxiety over disciplinary autonomy and theories that have become dominant in US legal thought. It is a theory of resistance that often slips into essentializing the discipline (Section III). Finally, a specific thesis for formalism in the sources of international law is critiqued as one that cannot work on its own intellectual and theoretical terms. Source formalism (as argued through a Hartian positivist thesis and Wittgenstein) cannot fulfill the relative determinacy it seeks, nor (and more importantly) is such a determinacy required for the legitimacy and normativity of international law. This theory of formalism, whilst operating through ideas that are easily accepted in legal circles, is one that can only sustain itself through intellectual vagueness and contradictions. Five such 'intellectual arrests' are worked through (Section IV). Despite its popularity, there is no necessity for such a theory in contemporary legal thought. Whilst this article is a critique of a specific variant of formalism, it is also a demonstration of how certain dominant theories can constrain and shape our imagination in a multitude of ways. The ploys of marketing an idea remain, after all, predominantly liberal.

In this book chapter, I look at the strategies of form used by contemporary international legal positivism to domesticate, co-opt and subvert some of the lessons from the critical approach that came to be known as New Approaches to International Law.

This is an extended review (26 pages) of Jean d'Aspremont's monograph - Formalism and the Sources of International Law (2011). This paper has two purposes: (1) to examine the virtues and failings of a Hartian approach to international law; and (2) to analyse the narrative necessities and structure of theories (here, formalism) with a view to commenting on the politics of theory within the academy.

In regards (1), I examine the intellectual conditions in which the turn to formalism (and in d'Aspremont's context, a narrow positivism) has emerged within Europe. In this context I look at how and why the turn has been necessitated by the Law & Economics movement within US variants of international law. I then consider the fragilities of a Hartian approach given: (a) its pathological desire for relative determinacy and methodological empiricism; (b) its belief that law's normativity is intimately intertwined with determinacy; (c) that its social scientific empiricism is based on a circular logic which excludes the functioning of theory; and (d) its reductive approach to how meaning is produced. None of these detract from the intellectual necessity of d'Aspremont's book and his theoretical call. I also consider the book's approach - in terms of rupture and consistency - alongside d'Aspremont's broader project on international legal positivism and his subsequent forays into theory.

In regards (2), I structure the paper to imitate the narrative structure of the book and look at the rhetorical and intellectual manoeuvres used by theorists so that they may appear to posit coherent visions of the world. In this sense it is a paper that briefly examines the politics of theory within the academy - where theory is considered as merely an aesthetic. The manoeuvres examined include: (a) intellectual specialisation; (b) the claim to bring order, coherence and reason to an area of thought riddled with incoherence and disorder; (c) the insulation of theoretical positions against critique using Kuhn's 'paradigm' approach to theory; and (d) the elevation of coherence in thought, over different pieces of work, above ruptures in theoretical thought.

The general question which is asked and answered is: what is the extent to which non-proliferation law, and the special obligations and institutional mechanisms created by the governing treaties, enables, limits or otherwise modifies the right to resort to countermeasures under general international law? An extension of the question that Rapporteur Arangio-Ruiz asked in the ILC in 1992, this piece reviews the large of non-proliferation rules to answer three sub-questions: (a) who has standing to take countermeasures in relation to non-proliferation obligations; (b) when can a state take recourse to countermeasures under general international law, given the existence and content of special non-proliferation rules and institutional mechanisms; and (c) what countermeasures may a state take, given the nature of the regime, its practicalities and the nature of some of its obligations.

The finding of this paper is that non-proliferation law possesses distinct legal characteristics and distinct legal rules both of which impact, varyingly, on the resort to countermeasures in this area of law. First, the paper critiques the ILC’s direct and overly simplistic importation of the notion of ‘interdependent obligations’ from its work on the law of treaties, to its work on state responsibility, and specifically Article 42(b)(ii) of the ILC Articles on State Responsibility. This has led to a conflated understanding of which non-proliferation obligations, upon breach, enable a decentralized, third-state party, response in the form of countermeasures. The paper concludes, that under a strict reading of doctrine, only a very few substantive non-proliferation obligations, and certainly not the majority let alone the procedural and peaceful use obligations, would qualify as interdependent obligations. Accordingly, whilst non-proliferation law is traditionally considered susceptible to decentralized responses (as ample practice demonstrates), this is not consistent with a reading of the law. Second, the paper applies the Air Services Arbitration test to whether the existence of extensive institutional frameworks should condition the resort to countermeasures. It concludes that in the case of the majority of non-proliferation treaties, such frameworks and not mandatory pre-requisites. It further identifies specific obligations contained in the CWC and CTBT that govern the taking of collective countermeasures in the general interest. Finally, this section identifies specific non-proliferation rules which limit the taking of countermeasures that emerge out of the WTO regime and UN Security Council Resolution 1929 (2010). Third, and finally, the paper concludes that what countermeasures may be taken may be curtailed by the nature of certain non-proliferation obligations, whilst the need to liberalize current international legal doctrine may emerge from the question of urgent countermeasures in the area of non-proliferation law.

In short, the paper concludes, that despite evidence of special characteristics and special rules governing countermeasures, non-proliferation law cannot be considered a special regime. The paper does however seek to provide a pragmatic view of the way in which countermeasures may be taken, in accordance with the law, in the diverse area of non-proliferation law.

This was an extremely short paper prepared for the American Society of International Law Conference 2011.

It addresses three points: (1) the emergence of uncertainty in the utopian systemic ideals for international law - that we have seen form in the fragmentation discourse; (2) the value of sociological inquiry into tribunalisation: treating fragmentation for what it is: far more than an issue concerned with norms; and (3) the value of ethical inquiry: re-examining the role of international lawyers in light of arguable professional fragmentation.

It advocates a call for (2) and (3), nothing more.

Fragmentation discourse provides a rare opportunity for international lawyers to review what has gone and what is to come: it is, in short, a chance to learn lessons of the past. The subjects and the looking glass, so to speak, are the International Law Commission's Report on the Fragmentation of International Law and its author, Martti Koskenniemi. It is the conclusion of this paper that the legal world's approaches to fragmentation, reflected in the ILC Report, represent a deficiency in ethical responsibility. The author not only considers the Report to be naturally inhibited by the institutional environment in which it was constructed, but furthermore finds that the Report's rule-centric approach to a polarized discourse results only in the propagation of ethical deficiencies that define the classical approaches to fragmentation: constitutionalism and legal pluralism. The Report's formalistic approach is one that attempts to find a middle ground between the stated polarities and, in doing so, it not only advances the myths of a system and of coherence in international law, but enables the preferences that define proliferating tribunals. The very same preferences continue to disable the ethical and political emancipation of the legal professional. The author believes the future of international law can no longer remain chained to rule-centrism against political preferences, but rather lies in the study of the legal professional. International law is a project that requires the rediscovery of our consciously enlightened professionals. This not only requires the development of a professional pluralism but the understanding that professional existentialism is not a reward, but rather the transpiring mindset of noble objectives.

This short comment paper evaluates Ehrlich's contribution to the modern and powerful legal theory of legal pluralism. With the theory finding stature in the current rhetoric of fragmentation in international legal relations, this paper explores the central tenet of one of the theory's founding fathers. It examines the value of Ehrlich's "living law" in the development of legal pluralism and in particular the role it plays in the modern conceptualisation of the theory.