{"id":20905,"date":"2023-11-13T14:00:50","date_gmt":"2023-11-13T13:00:50","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=20905"},"modified":"2023-11-16T12:46:52","modified_gmt":"2023-11-16T11:46:52","slug":"legal-appropriation-or-rechtsnahme-through-customary-international-law","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/legal-appropriation-or-rechtsnahme-through-customary-international-law\/","title":{"rendered":"Legal Appropriation or Rechtsnahme through Customary International Law"},"content":{"rendered":"

Legal Appropriation or, what is the same, Rechtsnahme<\/em> 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 \u2018Law\u2019 or \u2018Recht\u2019, with the act of imperium<\/em> that the \u2018Nahme\u2019 or \u2018Appropriation\u2019 embodies in classic international law. For instance the \u2018Landnahme\u2019 (appropriation of land) in American territories is depicted in classic texts<\/u><\/a> 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 (<\/u>opinio juris<\/em><\/u>)<\/u><\/a> described in the literature<\/u><\/a> is evidence of the Legal Appropriation or Rechtsnahme<\/em> that I am referring to. This is not a recent phenomenon.<\/p>\n

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<\/u><\/a> some time ago. Within this context of desolation and waste the idea of a Rechtsnahme<\/em> evokes the Empires\u2019 plunder but also the creation of new worlds. \u2018Modern international law (\u2026) does not leave any remaining legal empty space\u2019, wrote too optimistically, but somehow also programmatically, Leo Strisower<\/u><\/a>, 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.<\/p>\n

Strisower\u2019s own doctoral student, Hans Kelsen, followed suit with reference to the law of punishing criminal rulers. What was Kelsen\u2019s 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<\/u><\/a> in the report, he was \u2018worried over the absence of any international law on the subject of individual criminal responsibility\u2019, noting that he thought that \u2018a definite declaration\u2019 was \u2018essential\u2019. 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<\/u><\/a> in the very charter of the IMT. Simply put, with his activity as legal advisor Kelsen aimed at creating new<\/em> international law.<\/p>\n

Similarly, when international judges establish that a reprisal attack<\/u><\/a> 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 \u2019imperatives<\/u><\/a> of humanity or public conscience\u2019 ought not to be ignored, never mind sanctioned. Brilliantly, Theodor Meron<\/u><\/a> has recently defined the work of international criminal tribunals in the last three decades as the \u2018fleshing out of norms originally set out at a high level of generality and\u00a0designed to govern the responsibility of States, not the individual criminal liability\u00a0of the perpetrators.<\/em>\u2019 The outcome is the \u2018revival of humanitarian customary law\u2019.<\/p>\n

Therefore, much of new positive law in the last century or so can be explained as the result of Rechtsnahmen <\/em>undertaken by interested actors. A conquest of law, modern Rechtsnahmen <\/em>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<\/u><\/a> 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<\/em> in political, existential, moral and cognitive terms. Rechtsnahmen <\/em>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 (\u2018Rechtsnahme<\/em>\u2019). After all, every Empire in history has had a wealth of legal instruments and mandates to back their actions. In this regard the Rechtsnahme<\/em>, and specifically, the Rechtsnahme<\/em> 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, <\/em>especially those in the brilliant first part<\/u><\/a> of the book on which I am focusing, seem to be acutely aware.<\/p>\n

These are a) the moralization of international law by consistently selecting some moral issues as important to embody opinio iuris<\/em> and leaving others aside or trampled on, e.g. including aspects of humanitarian law<\/u><\/a>, but not key issues of political economy, and b) the realist politics of the law of the strongest<\/u><\/a>, which among other things continues, with a geographical bias<\/u><\/a> in the production of norms and, as also Theodor Meron notes, selectivity<\/u><\/a>. Each of the first five contributions to the book\u00a0<\/em>provides a different solution to those problems and, thereby, rightly confront the reader with the question of foundations of CIL.<\/p>\n

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<\/em>. In this vein, Jean d\u2019Aspremont<\/u><\/a> argues that the sooner \u2018one is liberated from foundational debates about CIL\u2019 the better \u2018one can measure and appreciate both the discursive splendour and the efficacy of the latter (CIL)\u2019 (p.39<\/u><\/a>). In accord with Kelsen, CIL is thus rightly described<\/u><\/a> 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 \u2018historically first constitution\u2019, the \u2018meta-meta law\u2019 that J\u00f6rg Kammerhofer<\/u><\/a> describes in his opening chapter to the book. Kammerhofer denies the possibility of assuming the existence of that \u2018meta-meta law\u2019 (p.20 et seq<\/u><\/a>.). Instead, he adopts a constructively agnostic approach to the question of foundations and proposes a \u2018much weaker heuristic tool\u2019 which he calls \u2018Approximately Plausible Empowerment Norm\u2019<\/u><\/a>. 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<\/em>\u00a0somewhere<\/em> is.<\/p>\n

As I understand it, the \u2018meta-meta law\u2019 of CIL was not always there, at least not in its contemporary secular form. But it is indeed there now. Currently the \u2018meta-meta law\u2019 of CIL is a dynamic creation of human genius, which, after all, important traditions of international law<\/u><\/a> 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 \u2018observer\u2019 that in Markus P. Beham\u2019s<\/u><\/a> contribution identifies CIL norms, embodies any<\/em> human being. \u2018Until an observer is introduced, it is unclear how many states have already engaged in practice accompanied by o<\/em>4<\/em>pinio juris<\/em>\u2019 (p.91<\/u><\/a>).<\/p>\n

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<\/em> of the last century transforms global order into a territory for conquest through norms, a fact made sufficiently clear with the examples in Noora Araj\u00e4rvi\u2019s<\/u><\/a> chapter (pp.40-61<\/u><\/a>). Sometimes the Legal Appropriation will work out, but not always. \u2018The misinterpretation of a customary norm\u2019 she writes, \u2018which is subsequently followed by states and other entities as if it were part of CIL, creates a self-fulfilling prophecy \u2013 a self-generating crystallization of a rule\u2019 (p. 61<\/u><\/a>). To me this statement implies that Araj\u00e4rvi accepts the existence of a \u2018meta-meta law\u2019, which however seems to remain beyond the grasp of most jurists, who frequently \u2018misinterpret\u2019 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.<\/p>\n

Judges\u2019 Rechtsnahme <\/em>can be, and probably ought to be counterbalanced by scholars\u2019 sober insistence, often from their more distant, scientific and detached position, on the perils of the creative identification of CIL. For Anna Irene Baka<\/u><\/a> in \u2018the Kosovo advisory opinion, the ICJ committed both fallacies [e silentio<\/em> and ad ignorantiam<\/em>]. 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<\/em> by the vast majority of states vis-\u00e0-vis unilateral declarations of independence\u2019 (p.82<\/u><\/a>). 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<\/u><\/a> restrictively and by enacting domestic legislation that trumps the application of CIL for a variety of reasons, some very good and some very bad<\/u><\/a>, as Justice Aharon Barak once explained<\/u>.\u00a0For all the misgivings involved in the Rechtsnahme<\/em> 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.<\/p>\n

 <\/p>\n

Author’s note: This contribution was written before the summer 2023.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":17,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[4003,4069,3949],"authors":[7321],"article-categories":[5080,3572],"doi":[],"class_list":["post-20905","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-customary-international-law","tag-international-legal-theory","tag-interpretation","authors-monica-garcia-salmones","article-categories-book-review","article-categories-symposium"],"acf":{"subline":"On the Question of its Foundations"},"meta_box":{"doi":"10.17176\/20231113-172226-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/20905","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/17"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=20905"}],"version-history":[{"count":3,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/20905\/revisions"}],"predecessor-version":[{"id":20952,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/20905\/revisions\/20952"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=20905"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=20905"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=20905"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=20905"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=20905"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=20905"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}