This panel was convened at 12:45 pm, Thursday, April 10, by its moderator, Vijay Padmanabhan of Vanderbilt University Law School, who introduced the panelists: Jean d' Aspremont of the University of Manchester and the University of Amsterdam; Rachael Kent of WilmerHale, LLP; Timothy Meyer of the University of Georgia School of Law; and Liam Murphy of New York University Law School. *
"EFFECTIVITY" IN INTERNATIONAL LAW: SELF-EMPOWERMENT AGAINST EPISTEMOLOGICAL CLAUSTROPHOBIA
By Jean d'Aspremont ([dagger])
When we think of "effectivity," we usually think of it as a practical and factual construction. The idea of effectivity, however, is anything but concrete, and raises all kinds of questions regarding legal theory, legal philosophy, epistemology, and the theory of knowledge. It should also be highlighted that, from a linguistic standpoint, the word "effectivity" does not exist in British English. The attachment of the International Court of Justice to Her Majesty's English explains why the World Court uses the French word, effectivite, when it seeks to refer to "effectivity."
These linguistic debates matter less than the semantics and especially the consensus that "effectivity" ought to be opposed to that of "effectiveness." "Effectiveness" refers to the outward impact of (primary and secondary) rules, institutions, and narratives of international law on all international actors and law-appliers. (1) In that sense, one way to see effectiveness is to equate it with the general state of a rule, institution, or narrative in terms of compliance. "Effectivity," for its part, evokes an inward process whereby facts are integrated into rules, institutions, and narratives as a condition of the operation of law and thus a condition of valid legal reasoning. By virtue of the idea of effectivity, valid legal reasoning is made contingent on the empirical verification of a certain factual variable. Said differently, "effectivity" refers to the internalization of certain factual variables in the law itself, as a result of which valid legal reasoning is conditioned on the demonstration of certain facts. (2)
The types of factual quality that are made a constitutive part of the operation of rule include (but are not limited to) the finding of an effective government, a certain behavorial practice for the sake of customary law, effective control for the sake of the extraterritorial application of human rights, effective control for the sake of attributing a behavior to an personified actor, and the effective exercise of authority for the sake of belligerent occupation, among others. (3) Valid legal reasoning on the basis of those effectivity-based doctrines is thus made contingent on the realization of the factual variable concerned.
It is with such a distinction between effectivity and effectiveness in mind that three brief, rather elementary observations on the idea of effectivity must now be formulated.
THE WORLD OF INTERNATIONAL LAW AND THE OUTSIDE UNIVERSE
The first contention which I venture here is that the idea of effectivity operates as a bridge between the world of international law and what I would call an outside universe. This is premised on the belief that international law creates a world of ideas (some people say "vocabularies")- The main ideas of the world of international law are states, international organizations, treaties, customs, wrongfulness, territory, crimes, and so on. Strictly speaking, these ideas do not describe anything. They are ideas. (4)
Unsurprisingly, most international lawyers are unhappy with the world of international law being solely a world of ideas. International lawyers want these ideas to reach out to an outside universe. This is the very reason why they have created another idea, i.e., the idea of effectivity. Needless to say, the idea of effectivity created by international lawyer is itself a mere idea among others. Yet it is one that allows the above-mentioned effectivity-based doctrines of international law to be connected with an outside universe. Stated differently, the idea of effectivity is what allows those doctrines to operate outside the closed world of ideas of international law. It allows all these foundational doctrines to pierce the atmosphere of the world of international law and beam themselves to the outside universe. It is in this sense that effectivity, as I understand it here, creates a bridge between the world of international law and an outside universe.
At this stage, it is essential to highlight that the bridge created by effectivity between the world of international law and the universe is bi-directional. While effectivity creates a bridge between international law and the outside universe by making valid legal reasoning dependent on factual variables, it does not follow that the world of international law is automatically and unilaterally shaped after such an imported outside universe. Although global actors constantly shape international law in a way that allows the pursuit of certain agendas that they see as in their self-interest, it is important to realize that the universe which is imported into the world of international law by virtue of effectivity simultaneously is, to a significant extent, constructed along the lines of the ideas (and descriptive categories) of the very same world of international law. (5) In other words, this outside universe (made of effective government, effective control, behavioral practice, and so forth), despite heavily bearing on the design of international law, is itself partly molded upon the categories of the world of international law. At any time, this imported outside universe is simultaneously a projection of the world of ideas of international law. The importation of the outside world as a result of effectivity is thus one facet of what constitutes an intricate dialectic process, for any import...