by Antonio Cassese. Oxford and Portland, OR: Hart Publishing, 2011. xix+286pp. Paper $40.00. ISBN: 9781849461207. Reviewed by H.G. Callaway, Philadelphia, PA.
pp. 154-161
Focused on five prominent scholars of international law, and casting light on the related institutions which frequently engaged them, the present book provides insight into chief currents of international law during the last decades of the twentieth century. Spanning the gap, in some degree, between Anglo-American and continental approaches to international law, the volume consists of short intellectual portraits, combined with interviews, of selected specialists in international law. The interviews were conducted by the editor, Antonio Cassese, between 1993 and 1995 though the present volume was published only last year.
Cassese, an Italian jurist and international lawyer, was Professor of International Law at the University of Florence (1975-2008) and specialized in public international law. Among other posts held, he was the first President of the International Criminal Tribunal for the former Yugoslavia, the first President of the Special Tribunal for Lebanon and chaired the UN Inter-national Inquiry into Crimes in Darfur. He authored International Law (2005), a comprehensive commentary on the subject (which makes a fine companion volume to the present book). He was also editor in chief of the Oxford Companion to International Criminal Justice (2009) and founded the Journal of International Criminal Justice. His work has been credited as providing a chief impetus in the revival of inter¬national criminal law from its post-Nuremberg hiatus.
Cassese seeks to bring out the central ideas associated with each of his five selected scholarly jurist-professors, focusing on international law and international relations; and he aims to place each of the five scholars within the context of their own intellectual and philosophical backgrounds - and their views of the development of the international community. The interviews were based on Cassese’s “basic questionnaire,” which is reproduced in the opening pages of the volume (pp.xvii-xix). Overall, the book provides an engaging, though intricate, perspective on contemporary developments in international law combined with discussion of its roots in the post-WWII era and in legal philosophies.
The legal scholars interviewed (all now deceased) are René-Jean Dupuy (1918-1997) who was Professor of International Law at the Collège de France (1979-1990); Eduardo Jiménez de Aréchaga (1918-1994) of Uruguay, Professor of Public International Law at the Universidad de la República (1946-1969) and at the Law School of the Catholic University of Uruguay; Sir Robert Jennings (1913-2004), Whewell Professor of International Law at Cambridge University (1955-1982); and the book also includes attention to two Americans, Louis Henkin (1917-2010) of Columbia University, scholar of human rights, American [*155] constitutionalism and the imperial Presidency, and Oscar Schachter (1915-2003) Professor of Law at Columbia University and UN official. In the last chapter of the book Cassese provides final remarks on his five scholar-jurists and their outlook on international law and the international community. He clearly sees his “five masters” as important co-workers in the recent development of international law.
As explained in the Preface, Cassese was inspired to undertake the present book in view of positive response to a 1993 book which he edited, The Tokyo Trial and Beyond: Reflections of a Peacemonger, based on an extensive interview with the Dutch lawyer and Tokyo Tribunal judge, B.A.V. Röling (1906-1985). That work outlined the rationale of the Tokyo war crimes trials and emphasized the positive role which Röling played in avoiding “victors’ justice” and in helping to enlighten Japanese and world opinion on how the war leaders had deceived the Japanese public. Though brutality and crime are not unexpected in war, international law must see to it that these facts set no supporting precedent in law. Though Röling is not among the five masters of the present book, his work is paradigmatic and helps set the tone and direction of the discussions of Five Masters.
Cassese recommends the interview format for facility in “allowing a lively and fresh exchange of views,” its vivid “reproduction of a person’s train of thought” and its ease of reader access (p.v). Disputing the Hegelian view that a person’s life is summed up in their work (or public acts), Cassese seeks to use details of the lives of his five masters as suitable context for understanding their work and accomplishments. He is also deeply motivated by debates concerning legal positivism. He lists the virtues of legal positivism, including its separation between law and morality, and the need to distinguish statements of fact from statements of values. Positivism also insists on the independence of “legal analysis of rules and institutions” from “sociological or historical investigations of the law” – on threat of a lack of needed “rigor” (p.vi). According to a quotation Cassese provides from Kant, “one does not multiply science but ends up marring it if one merges the borders between various scientific disciplines” (pp.vi-vii). At the least, we require compelling reasons to make such interdisciplinary crossings, and it appears that our author is neither Hegelian nor Kantian in his perspective on international law. Neither wholesale, indiscriminate fusion of disciplines nor complete isolation of law will do.
Cassese emphasizes the “striking limitations” of legal positivism, and legal formalism, especially as positivism may “constitute an impediment to the evolution of law” (p.vii) – and mount methodological impediments in the legal fight against authoritarian regimes (p.viii). Partly in reaction to the barrenness of legal positivism under Mussolini, Cassese has made “modest forays” into the related disciplines of “history and political science” (p.viii). He has sought insight into “the rationale behind a legal institution or rule,” and proposed how they could be improved in changed circumstances (p.viii). The question of the virtues and limits of legal positivism is repeatedly posed to the five masters in the body of the present book. Cassese seeks neither to historicize nor politicize the law in this volume, but he [*157] clearly believes that history and political science are appropriate intellectual contexts for understanding and evaluation of positive law, and particularly important in evaluation of proposals for its expansion or modification.
Cassese lauds the first of his five masters, René-Jean Dupuy, in his introductory portrait, for Dupuy’s “extraordinary lectures,” which “addressed legal issues with rigor and clarity . . . placing issues in their proper historical and theoretical context” (p.1). His legal thought was “permeated with political philosophy,” and his writings “were salted with citations” from authors such as “Nietzsche, Benjamin Constant, and Proudhon,. . . Bergson, Peguy, Valéry, and Camus” (p.4).
Of particular interest among Dupuy’s writings is the essay, “Coutume sage et coutume sauvage” (1974), which introduces two categories of custom, “wise custom” and “savage custom,” and according to Cassese, this distinction “illustrates his inclination to look at legal constructs not only from a historical perspective” but also within a “general conceptual framework” (p.4). “Wise custom” is based in historical tradition, something which has been found useful in practice and judged positively, and it arises from consensual or voluntarist sources. This is custom, as “pactum tacitum,” the tacit or silent pact or agreement. “Wild custom,” in contrast, lacks historical standing and arises “in a short period of time out of the desire of a large group of States to impose their demands on the whole community” (p.4). “Wild customary rules,” according to Dupuy are “revisionistic” or “challenging,” and born from wild practices. He gives as examples the rule of the 400-mile exclusive zone and the principle that a state bears responsibility for pollution originating from its territory (p.4).
Although Cassese comments that Dupuy’s conceptual parameters “may seem too classificatory today,” and “have not been adopted by subsequent writers” (p.4), he recommends, “the most significant of his concepts” and his “best scholarly work,” namely his general course on international law, originally offered at the Hague Academy of International Law in 1979. Cassese recommends Dupuy’s work on the law of the sea, where he is most positivistic, but also his writings on the contemporary reconfiguration of the international community. While work within the confines of positive law is generally regarded as a matter of basic lawyerly competence in this volume, Cassese is obviously much impressed with the need to reform and meliorate international law and international relations.
Eduardo Jiménez de Aréchaga, though born and educated in a developing country, “never acted as a representative of those states,” and “he did not necessarily share their political and ideological leanings, let alone their most extremist views;...” (p.49). Instead, from the outset, “he was a strict positivist and embraced the legal approach typical of Western European scholars” (p.50). Still, Cassese emphasizes that Jiménez de Aréchaga was open to reasonable demands from less developed countries, and he devoted much time and effort to the devlopment of rules of international law designed to include such countries — which are otherwise often excluded by the contract-treaty basis of so much [*157] traditional international law. “One cannot but admire,” Cassese writes, “the fine blend of a positivist approach and sensitivity to the new trends emerging in the world community toward less inequality and greater distributive justice” (p.51). Of particular interest is Jiménez de Aréchaga’s Hague Academy General Course, "International Law in the Past Third of a Century" (1978), which Cassese regards as among “the best lectures” ever delivered at the Hague Academy (p.50). Of particular related interest is Cassese’s treatment of the theme of “codification,” in his International Law (2005). Though codification normally arises from treaties, including international conference treaties, law first arising from treaties may become binding upon states not party to the original treaties when a corresponding custom becomes established; on the other hand, where they lack the binding force of consensus, UN General Assembly resolutions, for instance, also lack the force of law (cf. Cassese 2005, pp.168-169).
Explaining recourse to European sources and influences in the development of his legal thought, and that of Latin America generally, Jiménez de Aréchaga denies any considerable influence of the “North American school” of international law. He neither studied in the U.S. nor relied upon related scholars and scholarship, because “in Latin America we suspect the North American lawyers of supporting the Roosevelt doctrine. So, we preferred to follow the Europeans” (p.56). According to Jiménez de Aréchaga, “They write as legistas, ‘advisers of the King’” and “their view of international law is hegemonic” (p.57). President Theodore Roosevelt’s 1904 corollary to the Monroe doctrine of 1823, while reiterating the U.S. rejection of European intervention in the western hemisphere, allowed that the U.S. might intervene on behalf of the claims of a European power. The long history of U.S. intervention in Latin America is, no doubt, also of considerable import here.
In that context, we might better appreciate some related issues, where the claim is made for a reconciliation of the positivistic approach and a natural law approach. When the President of Peru issued a proclamation for a 200-mile exclusive economic zone, this was first regarded as a violation of international law. “And yet, in the course of time,” writes Jiménez de Aréchaga, “what initially appeared as a violation of the law became the law. This came about on account of sociological requirements and of considerations of justice. You have to give control to the riparian state, which must control the fishing in its waters” (p.57). This result was eventually established by means of a consensus of states in the Law of the Sea Conference (1973-1982), which is treated here as legislating on the issue. Jiménez de Aréchaga’s view is that such “codification conferences permit the formation of customary law,” a point which he explicitly contrasts with the idea of the big powers “dictating to the law to the others” (p.58). It is not the treaty produced which is crucial to the “customary” status attributed to the law but instead the claims, acquiescence and consensus of the states in the conference itself.
In some contrast with Dupuy and Jiménez de Aréchaga, Cassese’s third master is a relatively conservative figure. Robert Yewdall Jennings was appointed Professor of International law at the [*158] University of Cambridge in 1955, and in 1982 he was elected to the bench of the International Court of Justice, where he sat until 1995. “Jennings,” writes Cassese “was a typical representative of the British school which prizes quality over quantity. He was not a prolific writer” (p.115). An important “feature of Jennings’ writing was the recurring underlying suggestion that solutions to a problem often rest with the policy-makers rather than the legal interpreters” (p.116). “Jennings’ legal outlook was positivist in essence. But especially in his later years, he came to express the view that where interpretation of law leaves off, scholars of law can and should make suggestions for new law to fill evident gaps. “It is undeniably important that scholars with imagination and vision should publish ideas for a better international law” (quoted, p.118).
In the interview section, Cassese presses Jennings into an interesting discussion of state sovereignty (pp.168ff). In spite of considerable contemporary British emphasis on retention of sovereignty, Jennings, like Cassese, sees state sovereignty as already modified and limited by international law. Jennings also holds that the concept of sovereignty and related practices need to be retained in some form as long as no straightforward answer can be given to the question “Well, who else decides then?” (p.169). Where a clear answer can be given, as with many matters falling under the purview of the European Union, then that is one sort of situation; but there are many cases and disputes lacking any clear answer from the agencies of formation of international law. This dual attitude is consistent with the growing power of international law within the E.U. and also consistent with the recent European re-emphasis on the nation state – a reaction against the idea of a “Europe of regions” that had stressed cooperation between neighboring regions across national boundaries. Going beyond the confines of the E.U. the scope of state sovereignty is greater, and the scope of existing international law more restricted, though standing in need of expansion.
In an interesting discussion of the “British versus U.S. approach to international law,” and of the “Yale school,” (pp.164ff). Jennings says that despite having “a great deal of sympathy for the Yale school” and its emphasis on policy (p.165). Still, he “was a bit bothered by the way Myres McDougal (1906-1998) in his writings posited questions and then nearly always came around to what was the American government’s point of view” (p.164-165). When asked whether “the major flaw in Yale is that McDougal projected his own values,” Jennings answers that “Yes, he got the value answer a bit too pat” (p.165). As a judge in international law, one should “do it experimentally” (p.165).
According to Cassese, Louis Henkin made his “greatest legal contribution” in “the field of human rights” (p. 183). The son of a Rabbi, Henkin studied at Yeshiva University and Harvard Law School, clerked for Justice Felix Frankfurter and spent his life in academia. He taught at the University of Pennsylvania and later Columbia University, but he also served as an advisor to the State Department, a consultant to the UN and was a member of the UN Human Rights Committee. Cassese lauds Henkin for his defense of [*159] the UN Charter’s prohibition of the use or threat of force in international relations. According to Henkin’s this is a valid standard of international relations, which exercises a significant restraint upon state behavior – even though it has frequently been circumvented (pp.184-185). It follows that for Cassese and Henkin the validity of international law does not depend on its being consistently enforced.
Henkin was critical of U.S. commitment to international law and of its lack of enthusiasm for the international system of human rights: “in the cathedral of human rights, the United States is more like a flying buttress than a pillar – choosing to stand outside the international structure supporting the international human rights system, but without being willing to subject its own conduct to the scrutiny of that system” (Henkin, quoted, p.183). Henkin recommends the attention of U.S. courts to the constraints of customary international law. The Supreme Court must “say what the law is,” and he recommends the reverential attitude of the American founders toward ‘the Law of Nations’” (p.186, n.14). Cassese strongly recommends two related books by Henkin: How Nations Behave(1979) and Foreign Affairs and the U.S. Constitution(1996). Though he admires Henkin’s idealism and his commitment to the development of international law, Cassese is also somewhat critical of Henkin’s overly optimistic judgments regarding the factual constraint of international law: “In the area of … highly political matters, where the supreme interests of major powers are at stake, the restraining force of legal imperatives fades away” (p.186); and he recommends related writings of his fifth master, Oscar Schachter, in this connection – suggesting that the existing principles of international law are in fact vague and sometimes inconsistent.
Cassese’s opening discussion of Oscar Schachter and his work contains a significant focus on the legal theory of Myres McDougal, the related influence of the (pragmatist-influenced) political scientist Harold D. Lasswell (1902-1978) and what Cassese calls the “American,” “Yale,” or “New Haven” school of international law. Schacter’s emphases on positive international law and on “rules” (contrasted with “principles” and “policy” or “purpose”), are employed in a criticism of McDougal, on grounds that he allows purposes and policy too great a role. Though the advocate may favor and support the aims of a client, and selection among conflicting “principles” of international law may be called upon in such advocacy, still where established rules are clear, they are not to be ignored or superceded on the basis of policy aims alone. “Schachter asks, ‘Should policy or major purpose prevail over a rule that is clear and specific?’ His answer is negative, and here one can discern his divergence from the Yale School of international law” (p.227). Criticism of McDougal is clearly a major theme of the present book. According to Cassese, “This school – it may be submitted – in the event makes purposes prevail, and thus wittingly or unwittingly, gives pride of place to the interests and policy of major powers (chiefly the U.S.), to the detriment of the values accepted by the world community as legal standards or yardsticks” (p.227). The character of the criticism resembles that which has been directed against [*160] “vulgar pragmatism.” (cf. e.g., Haack, 1997).
In conclusion, one might well expect that continental legal theory will place greater emphasis on the (Kantian, positive) deontological factor of settled rules (reflected in the emphasis on precedent elsewhere); while, in the English-speaking world there is a greater emphasis upon the (Aristotelian, J.S. Mill) telos of international law – combined with a stress on the model of existing law – of its own culture and making. It seems clear, in that light, that the anomalous position of the U.S. in relation to international law, an issue of considerable significance in the present book, stems from two factors.
The first is the preeminent position of the U.S. as the world’s single remaining super-power after the Cold War. This has engendered over-engagement, a tendency to adopt the role of world policeman, including a corresponding increase in our levels of engagement with “highly political matters” of world affairs – precisely those matters least capable of effective regulation in international law. With greater sharing of responsibility for world affairs, one might then expect some equalization of concern with the constraints and development of international law. Clearly it won’t do to criticize American high-handedness, and then leave the chief problems of world affairs for the U.S. to settle.
The second factor is the challenge presented to the traditional Anglo-American social, economic and constitutional systems by the emergence of the new Europe, which preserves distinctive national-ethnic cultures, and the ethnically based nation state, while attempting to limit conflict by means of international law, weaker forms of federalism – and nearly continuous international conferencing. The success of contemporary Europe is a wonder, not to be ignored or discounted, but the application of this model to the wider world remains in considerable doubt.
One might suspect that the relatively constrained openness of a Jennings, say, toward the development of international law, corresponds to a higher level of skepticism on the extension of the European model to the rest of the world, while the idealistic optimism of a Henkin, in contrast, reflects a dimmer view of the prospects for the continuation or extension of traditional Anglo-American values and legal forms. Worthy international goals and objectives, where lacking detailed, guiding rules come up empty in the present volume, though positive rules without guiding objectives often count as blind. This book helps the reader to understand the chief issues and conflicts of contemporary international law, and it should not be thought that Antonio Cassese was at all naïve concerning them. “Plainly,” he writes in his “Final Observations,” “the key to the principle problems of the world community is in the hands of politicians, diplomats and military leaders. Nevertheless, legal scholars may suggest ideas and advance solutions – without, however, harboring too many illusions” (p.271).
REFERENCES:
Cassese, Antonio. 2005 (2d ed.). International Law. Oxford: Oxford University Press.
Cassese, Antonio. 2009. The Oxford Companion to International Criminal Justice. Oxford: Oxford University Press.
Haack, Susan. 1997. “Vulgar Rortyism: Review of Pragmatism, a Reader.” The New Criterion. 16:67.
Henkin, Louis. 1996. Foreign Affairs and the United States Constitution. New York: Oxford University Press.
Henkin, Louis. 1979. How Nations Behave: Law and Foreign Policy. New York: Columbia University Press.Jiménez, De Aréchaga, Eduardo. 1978. International Law in the Past Third of a Century. Alphen Aan Den Rijn: Sijthoff Et Noordhoff.
Menand, Louis. 1997. Pragmatism: A Reader. New York: Vintage Books.Röling, Bernard V., and Antonio Cassese. 1993. The Tokyo Trial and Beyond: Reflections of a Peacemonger. Cambridge: Polity.
© Copyright 2012 by the author, H.G. Callaway.
