Legal Appropriation or Rechtsnahme through Customary International Law
On the Question of its Foundations
Legal Appropriation or, what is the same, Rechtsnahme means in this contribution the space of human interaction that is appropriated by international judges, lawyers and other legal actors when they decide on the existence or not of positive law, or when they contribute to its creation. I have invented this concept by combining the object that is newly appropriated, that is ‘Law’ or ‘Recht’, with the act of imperium that the ‘Nahme’ or ‘Appropriation’ embodies in classic international law. For instance the ‘Landnahme’ (appropriation of land) in American territories is depicted in classic texts as a way of constituting modern international law. In this contribution I analyse customary international law (CIL) as an epistemological tool for acquiring or conquering the power and the authority that law holds in international order. The diminishing aspect of location (practice) in customary international law and the emphasis of moralism (opinio juris) described in the literature is evidence of the Legal Appropriation or Rechtsnahme that I am referring to. This is not a recent phenomenon.
It expresses the continuous conquest of the ethos of global law that started in the past century following the general depletion of moral and intellectual resources in Western culture. The systematic negation of principles of peace, justice and solidarity that framed two consecutive World Wars serves as painful evidence of that moral decay. Our great grandfathers identified positive law, and in particular international law as a valid means to fill in the normative emptiness, not to say nihilism and eugenism that plagued key human cognitive domains in the late 19th , as I argued some time ago. Within this context of desolation and waste the idea of a Rechtsnahme evokes the Empires’ plunder but also the creation of new worlds. ‘Modern international law (…) does not leave any remaining legal empty space’, wrote too optimistically, but somehow also programmatically, Leo Strisower, the influential Austrian international lawyer (among other things), in the not very optimistic year of 1919. Modernist ambitions for a total expansion of law had thus an impact during the last century, not only in treaty law but also in CIL.
Strisower’s own doctoral student, Hans Kelsen, followed suit with reference to the law of punishing criminal rulers. What was Kelsen’s intention in writing an expert report for Justice Jackson on the eve of the signature of the London Agreement on 8 August 1945, which would include the Charter of the International Military Tribunal (IMT)? As Kelsen wrote in the report, he was ‘worried over the absence of any international law on the subject of individual criminal responsibility’, noting that he thought that ‘a definite declaration’ was ‘essential’. With this he meant, necessary to avoid that after the Nazi upper echelons had transformed Europe into a moral abyss, they could escape criminal prosecution after World War II by invoking the law of acts of state. Accordingly, he suggested one possible formulation for spelling out international individual criminal responsibility which later was enshrined in the very charter of the IMT. Simply put, with his activity as legal advisor Kelsen aimed at creating new international law.
Similarly, when international judges establish that a reprisal attack against civilians is prohibited by a norm of customary law, notwithstanding the little practice to be found of it, they are creating new law. Called to decide on the question, the international criminal judge reasons that reprisal attacks against civilians lie well beyond a threshold of a global shared sense of humanity and decency, which due to ’imperatives of humanity or public conscience’ ought not to be ignored, never mind sanctioned. Brilliantly, Theodor Meron has recently defined the work of international criminal tribunals in the last three decades as the ‘fleshing out of norms originally set out at a high level of generality and designed to govern the responsibility of States, not the individual criminal liability of the perpetrators.’ The outcome is the ‘revival of humanitarian customary law’.
Therefore, much of new positive law in the last century or so can be explained as the result of Rechtsnahmen undertaken by interested actors. A conquest of law, modern Rechtsnahmen emerge from the partial standpoint of its authors and are usually referred neither to an overarching conception of nature nor to foundational ideas of morality and God. Nevertheless, they often embody morality and natural law principles. When faced with an existential decision about law, international lawyers and international judges, such as Hans Kelsen or Antonio Cassese have appropriated a global space that orders in political, existential, moral and cognitive terms. Rechtsnahmen are usually carried out by means of mandates received from clusters of states and other power holders with imperfect (global) representation, at an unfocused scale, and unsystematically, often penetrating some legal orders and not others. Incidentally, such mandates do not question the characterizations of subsequent action as appropriation (‘Rechtsnahme’). After all, every Empire in history has had a wealth of legal instruments and mandates to back their actions. In this regard the Rechtsnahme, and specifically, the Rechtsnahme through CIL posits well-known problems, afflicting international law more generally, of which the contributors of The Theory, Practice, and Interpretation of Customary International law, especially those in the brilliant first part of the book on which I am focusing, seem to be acutely aware.
These are a) the moralization of international law by consistently selecting some moral issues as important to embody opinio iuris and leaving others aside or trampled on, e.g. including aspects of humanitarian law, but not key issues of political economy, and b) the realist politics of the law of the strongest, which among other things continues, with a geographical bias in the production of norms and, as also Theodor Meron notes, selectivity. Each of the first five contributions to the book provides a different solution to those problems and, thereby, rightly confront the reader with the question of foundations of CIL.
Lawyers participating in the international legal order might emphasise the argumentative (political) possibilities of a fluid CIL, rather than getting involved in questioning the motives and principles of a Rechtsnahme. In this vein, Jean d’Aspremont argues that the sooner ‘one is liberated from foundational debates about CIL’ the better ‘one can measure and appreciate both the discursive splendour and the efficacy of the latter (CIL)’ (p.39). In accord with Kelsen, CIL is thus rightly described as a powerful means to shape the international order. Through Legal Appropriations, I would argue, international legal actors are constantly generating, either expressly or implicitly the ‘historically first constitution’, the ‘meta-meta law’ that Jörg Kammerhofer describes in his opening chapter to the book. Kammerhofer denies the possibility of assuming the existence of that ‘meta-meta law’ (p.20 et seq.). Instead, he adopts a constructively agnostic approach to the question of foundations and proposes a ‘much weaker heuristic tool’ which he calls ‘Approximately Plausible Empowerment Norm’. It makes sense that CIL norms derive their validity from somewhere, Kammerhofer seems to argue, but he would not presume to state that he knows what that somewhere is.
As I understand it, the ‘meta-meta law’ of CIL was not always there, at least not in its contemporary secular form. But it is indeed there now. Currently the ‘meta-meta law’ of CIL is a dynamic creation of human genius, which, after all, important traditions of international law have often taken to be a stamp of the divine. Not for nothing contemporary CIL enjoys a wealth of knowledge and of substantial morality that a majority of international actors judge to be good. Perhaps then the mysterious ‘observer’ that in Markus P. Beham’s contribution identifies CIL norms, embodies any human being. ‘Until an observer is introduced, it is unclear how many states have already engaged in practice accompanied by o4pinio juris’ (p.91).
Notwithstanding this positive premise, as everything human, the Legal Appropriation through CIL is destined to be fallible, and most than anything, changeable. The modernist wave of Rechtsnahmen of the last century transforms global order into a territory for conquest through norms, a fact made sufficiently clear with the examples in Noora Arajärvi’s chapter (pp.40-61). Sometimes the Legal Appropriation will work out, but not always. ‘The misinterpretation of a customary norm’ she writes, ‘which is subsequently followed by states and other entities as if it were part of CIL, creates a self-fulfilling prophecy – a self-generating crystallization of a rule’ (p. 61). To me this statement implies that Arajärvi accepts the existence of a ‘meta-meta law’, which however seems to remain beyond the grasp of most jurists, who frequently ‘misinterpret’ it. Ultimately, only some few sages have access to the true identification of CIL, and all along, the legal order remains in tension between the integration of the norm and the breaking point of disregard.
Judges’ Rechtsnahme can be, and probably ought to be counterbalanced by scholars’ sober insistence, often from their more distant, scientific and detached position, on the perils of the creative identification of CIL. For Anna Irene Baka in ‘the Kosovo advisory opinion, the ICJ committed both fallacies [e silentio and ad ignorantiam]. Without any substantial argumentation and with the ultimate goal to solve the Kosovo puzzle, the ICJ erroneously interpreted the absence of state practice as also implying a neutral opinio juris by the vast majority of states vis-à-vis unilateral declarations of independence’ (p.82). The political battle, including the crucial politics of peace continues, either by interpreting silences as norms or through the opposite means. Possibly, considering its foundational partiality, the more legal agents contribute to the knowledge, creation, and critique of contemporary CIL, the more successful the legal community will be in gaining insights into what is the best method to carry out the future conquest of law. However, in these very strange times the skeptical position does not seem enough to promote peace and justice. Instead, it makes sense to working our hearts out about law. On the other side of the power spectrum, states resist the Legal Appropriation by interpreting CIL restrictively and by enacting domestic legislation that trumps the application of CIL for a variety of reasons, some very good and some very bad, as Justice Aharon Barak once explained. For all the misgivings involved in the Rechtsnahme through CIL, what really seems impossible is the option of no-moralisation and no-politisation of global order, since human beings are in charge. Moreover, if we narrow down this principle to the international judges, we are talking about human beings with highly trained sensibility towards peace and against violence and injustice. Let us hope that this sensibility extends to areas of CIL traditionally protected as the territory of the powerful and that a rich dialogue of legal and political actors ensues as if we really inhabited a global public order.
Author’s note: This contribution was written before the summer 2023.