Three passages I never expected to see in the same article

I can't think of a more fitting way to mark this one hundredth post than by quoting liberally from Vaughan Lowe's excellent piece "The Politics of Law-Making: Are the Method and Character of Norm Creation Changing?" from  Michael Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (2000), which has to be the best thing I've read since, well, last week.


"If the tribunal chooses to adopt the concept, the very idea of sustainable development is enough to point the tribunal towards a coherent approach to a decision in cases where development and environment conflict. There is absolutely no need for the concept to have been embodied in State practice coupled with the associated opinio juris. Its employment does not depend upon it having normative force of the kind held by primary norms of international law. Tribunals employ interstitial norms not because those norms are obligatory as a matter of law, but because they are necessary in order that legal reasoning should proceed. All that is needed to enable the norms to perform this role is that they be clearly and coherently articulated. Once they have been articulated, they operate as modifying norms, bearing upon the primary norms that surround them. But they have a broader significance. If, for example, sustainable development is declared to be the reconciling principle that establishes the relationship between development and environment, it is highly unlikely that any other principle will be employed to effect that reconciliation, at least until sustainable development is displaced. The concept effectively 'occupies the field'...Further, any shifts in emphasis that may be necessitated by the accidents of case law will be tested for their coherence with sustainable development. In these senses, the principle exercises an immense gravitational pull."  (p. 217)


"Similarly, those negotiating treaties, or development loans, or environmental controls, at the national or the international level, are likely to approach that task within the context of the concept of sustainable development. The concept colours the whole approach to this area of international law. The metaphor of colour is, indeed, a powerful one. The effect of interstitial norms is to set the tone of the approach of international law to contemporary problems, bringing subtlety and depth to the relatively crude, black-and-white quality of primary norms. I have used one example; but I expect there to be many others in the coming decades, during a phase in the development of international law analogous to the development of equity in English law. For example, it is likely that international law will begin to develop its own concepts of unjust enrichment and other restitutionary remedies, across a whole range of contexts from the determination of compensation in cases of expropriation and injury to alien property to remedies for breaches of treaty obligations. The concept otabus de droit, already established in the approach of civil lawyers to international law, is likely to achieve much greater prominence as a check upon exercises of legal power by States. Through the influence of these principles, the whole character of international law and its relation to the most pressing problems of fairness and justice can be materially altered. And, to make the point once more, this is done by principles that owe none of their normative force to the traditional 'State practice plus opinio juris' or to treaty law processes for the creation of binding legal norms. I expect the method and character of the creation of the most important and influential norms of international law in the next generation to be markedly different from that which has obtained in the past." (p. 217-218)


"Legal concepts and norms are important. But the matrix in which they are set is not a normative system of pure juridical reason. No one—statesman, judge, or whatever—can switch his or her brain into a purely legal or purely non-legal mode. Brains are brains. The same brain functions as the judge judges, reads newspapers and novels, watches films and television, and does everything else. It is inevitable that reasoning, in whatever context, proceeds against an inarticulate and perhaps irrational backcloth of concepts, linkages, suppositions, and prejudices built up from the general experience of life. And it is because interstitial norms operate in precisely those areas where primary legal norms do not dictate clear legal solutions that they are the most likely to be heavily (I would say overwhelmingly) influenced by non-legal factors. Interstitial norms are the points where general culture obtrudes most clearly into the processes of legal reasoning." (p. 220).


It's true - academia is a kind of disorder. :)