II.

As it is considered here, the question is essentially formulated at the scholarly level, based on the hypothesis that one or several European approaches already exist(s) in practice in the realm of legal policies (what can or could qualify as a European approach will be discussed later in this article). In this latter register, the issue is not so much to investigate whether a European approach is necessary, but rather to assess whether the existing approach(es) should be modified, strengthened, softened, etc., both in substance and procedure.

When directed at or asked by scholars, the question obviously aims for the critical assessment of what exists, but it also questions scholars on their own positioning. Should they develop and promote, for and by themselves, a European approach? This implies the clarification of the meaning of “scholars”, because the word can have at least two meanings. The first meaning is material and encompasses “legal thought” on the whole, and thus a corpus of ideas. The other is organic and embraces the authors of said legal thought, and also constitutes a professional field. However, the stake remains the same, which is a play of influence. This calls into question the prestige of the expressed thought as well as that of the body voicing it. But before the issue of an actual European approach can be debated, this stake calls for clarification, which brings me to consider the state of scholarship and its purpose.

A.

The first and most obvious observation is the fragmented or even atomized character of academia (the notion refers to the organic meaning of scholarship), based on an essentially national partitioning. Such a partitioning does not exist for other international law practitioners, whose very activities imply a constant exchange capable of reducing the potential tropism induced by their education. The academic partitioning is largely due to the fact that professional careers are first and foremost national, although this situation is not univocal through time. We can, indeed, observe the current co-existence of academic systems which, after a period of self-sufficiency, have integrated into their education the requirement of studies abroad, and academic systems which were once extroverted due to their incomplete character but have progressively withdrawn as they developed.

The accumulation of these various factors, empirically observed here, has created a mutual relative ignorance of the scholarship in other countries. The European construction certainly urges looking beyond national borders through policies which target the specific fields of education—with programmes such as Erasmus or the European harmonization of diplomas—and research, but also through the growing requirement of setting up international/European networks as a precondition for research funding.

While this progressive opening aims to ward off the threat of marginality, and its benefits are obvious, one cannot help but wonder about its detriments (this question underlies the resistance to the said approach). Here appears the stake of identity, which is sometimes expressed through its linguistic aspect. This linguistic aspect is the essence of a dilemma between the argument that to be read—and readable—by the largest possible public one needs to write in a common language, and the objection that all concepts or modes of reasoning cannot necessarily be transported from one language into another. This dilemma is more or less resolved depending on the countries, the advantage clearly going to the English language. But in the background lies the more or less confessed conviction of specificity and the desire to protect its potential erosion. Whether the problem is considered vain does not matter, for its relevance lies in the lessons it carries on the springs of a European approach (the exact nature of which remains to be investigated). From the organic perspective which is mentioned here, this approach refers to the idea of an academic world identified on a European scale. Obviously this is not brought about easily and requires several tools of mutual attestation and recognition. In this context, the recent evolution regarding the organization of education and research programmes will soon produce effects which will eventually retroact on the work of scholars.

B.

The scholars’ vocation must naturally lead them to confront the practical development of a European approach to international law, in order to connect its specific appearances to a narrative perspective, or even to imagine its theoretical possibility and the conditions thereof. From this perspective, the question of the necessity of a European approach to international law can be linked to several scholarly debates which have taken place in recent years on the existence of a European tradition of international law, or even the historically European character of international law.Footnote 3 This further correlates with a renewed interest in the study of legal cultures or traditions which echo, in the legal field, reflections such as the one on the clash of civilizations. This also goes together with a better visibility of the theme of a given legal system’s influence on international law, maybe because this influence has been identified as a specific stake. This desire for influence is particularly easy to fathom considering that the idea of different legal systems, and at the same time of different conceptions of law or of typical legal traditions or cultures, is already familiar. The most obvious and widespread example is the differentiation/opposition between the so-called continental—or Romano–Germanic—law and common law. Comparative law which, as a methodology (differentiated from the study of foreign law) increasingly infiltrates international law, rests its origins on such archetypal approaches. These approaches have also impregnated international law, although to a lesser extent, through requirements such as those relating to the composition of international courts and tribunals (see, for example, Article 9 of the Statute of the International Court of Justice). Although comparative law has demonstrated the limits of such system categorization or type identification, it nevertheless gives credence to their existence. From the very beginning of the process, comparative law explains—and thus includes as “normal” variables—the notions of influence, borrowing, mimicry, and transposition, but also of hybridization and distortion. The idea of exporting–importing legal models is not new in itself. One only needs to remember, besides the effects of colonization, the nineteenth-century journeys undertaken by famous personalities such as Boissonade in order to “help” or encourage the transposition of entire corpora of norms, which are nowadays echoed by the multiple missions mandated to help certain countries to (re)build their legal system.

The actual scope of these influences and their durability could obviously be debated. But, in any event, they participate in a certain form of perennial mythology. European comparative lawyers from the beginning of the twentieth century, for instance, were seeking a “common law”, which is to comparative law what universal law is to international law. With this background, it is interesting to observe the current tendency of both the reactivation and the interconnection of these same problems, in a context where global and local confront each other, where domestic and identity issues have become particularly sensitive, and where specific historical eras are re-examined. This linkage is new, commensurate to the increasing interconnections between the various national laws and international law, while comparative lawyers formerly were not used to considering international law as a subject of their study. The issue of national—or regional—approaches to international law was a question left to international lawyers and we rediscover today, through the history of international law,Footnote 4 that lively debates existed almost a century ago,Footnote 5 and the emergence of new approaches.Footnote 6 This temporality of the necessity to plunge back into history is definitely noteworthy, as are the various disciplinary linkages. Indeed, reflecting on a European approach to international law necessarily confronts the actual or supposed plurality of national approaches existing in Europe, and therefore implies, one way or another, integrating a comparative perspective.

This can be all the more fruitful since, incidentally, comparative law has naturally been shaken by the substantial expansion of international law, which has begun to model national laws more or less intrusively, while at the same time harmonizing or standardizing entire areas (even though domestic law experts are not always as aware of this trend as they should be, especially in Europe, where EU law or the law of the European Court of Human Rights often acts as a filter or shield). A potential influence on international law thus seems to have a double trigger, in the sense that it also becomes an influence through international law. Certain notions or ideas stemming from a national law system will eventually penetrate another national law system via international law. This pertains to the perception of law as a modelling device. The stake of influence increases commensurate to the development of international law-making, which is nowadays far from being a law system solely for interstate relations but rather an increasingly substantial law designed to produce effects in increasingly open national systems. It has become impossible to distinguish between or compartmentalize the inside from the outside. International law consequently acquires many features from the comparative lawyers’ “common law”, and certain comparative lawyers are thus opening the debate on the pluralistic or imperialistic character of its elaboration, and are thereby joining the concerns of certain international lawyers.Footnote 7

This gives evidence of the fact that scholars can exempt themselves neither from observing the existing European approach(es), nor from calling into question their own relative positioning in terms of their approach to international law, including by considering the hypothesis of an approach, or even a legal thought, that is already more or less consciously—or at least increasingly becoming—European. But once this statement is made, the central question regarding the essence of a European approach can no longer be circumvented.

A.

Defining what qualifies as “European” is not simple. The adequacy of a geographical criterion is relative, which becomes obvious at the margins of the continent. The most striking example is the endless argument on whether Turkey is a member of Europe (the answer being affirmative as far as the Council of Europe is concerned, while the issue is much more debated with regard to the EU) or the questions regarding the countries likely to accede to the Council of Europe. Besides, this criterion does not conceal the fact that factors other than the geographical one are at play and that the choice is, ultimately, a political one. Indeed, what are these other factors?

One could opt for an institutional approach and therefore emphasize the Europe either of the EU or that of the Council of Europe, which do not have the same perimeter—while keeping in mind that Europe has been divided for a long time between West and East, which has necessarily left marks which a radical reconsideration of this division cannot simply override.Footnote 8 However, unity does not necessarily spring from the reconsideration of a division, while the existence of a division does not exclude the existence of common points or even of a common core. In the end, one is faced with the same difficulty as that stemming from the implementation of legal norms whose beneficiary is a group or a collective body whose outer limits have not been defined. The example of a population is most striking in order to clearly identify the risk of a too extensive or too reductive inclusion. This example gives evidence of the limits of any attempt at objectification, and of the necessary (re)introduction of a subjective criterion, such as the famous sense of belonging or the “desire to live together”. From this point of view, one needs to remember the distinction between the level of legal policies and that of scholars. Indeed, while the aforementioned politico-institutional references (the EU and the Council of Europe) not only make sense but are an imperative for the former, they lose this same sense for the latter.

This clearly does not and should not prevent certain academics from choosing to promote the development of a European approach to international law that would be specific to these institutions or shared by its Member States. However, it means that there is no reason—unless a certain atavism or heredity is claimed, but this attitude is unacceptable—why such a posture should be the exclusive prerogative of the natives of the areas thus carved out, unless those who live and work there are included. The difficulty in finding a satisfactory formulation clearly demonstrates how slippery that slope can become. As Sir Michael Wood elegantly phrased it, “It’s all in the mind, or in your approach, but this is completely circular: presumably on this view there are Europeanized Americans and Americanized Europeans.”Footnote 9 But it then becomes a question of content and leads back to the sense of belonging, and one must henceforth identify the basis of such a sense because it implies, once the hypothesis of a militant posture or of adherence to the political project of European integration is set aside, the existence of a common core which would specify Europe but also unite it. In that context we refer to values or to a legal culture which could result in a certain commonness of approach. This brings us to successive leads: the European approach determined as such by the position of those who express it, and the European approach determined by its content.

B.

The idea of a European approach determined by the position of its issuer mainly if not exclusively refers to legal policies, or what can be more neutrally called practice. The fact that the EU as such has a foreign policy, and thus meets and sometimes directly participates in international law-making and its implementation, necessarily implies that it has an approach to international law which is a European approach. Even if there are other European perimeters, the facts are that this characterization has been mainly linked to the EU, including by scholars, and that it has become common and usual to refer to it so in that sense.

One could argue that this approach is a specialized one, linked to the distribution of competences between the EU and its Member States, but this does not do justice to reality. The entanglement of these competences, clearly illustrated, for instance, by the extent taken by the category of mixed agreements and the desire—albeit unequal depending on the domain—to develop a common foreign policy, has led to a multiplication of topics on which the EU speaks with one voice. A certain domino or contamination effect undoubtedly takes place, which prompts Member States to adopt common positions, including when such a unified position is not strictly required by EU law.Footnote 10 Furthermore, Europeans have to deal with the fact that many actions have already been undertaken, on the internal level, to aggregate their diversity and that they therefore need to articulate both the “inside” and the “outside”, so that what is done on the outside would not jeopardize what is planned on the inside, particularly when the same issues are at stake. This is also the meaning that could be read into the case-law on external implied or implicated competences. What could appear to be a requirement of consistency does not exclusively concern Europeans, but also their interlocutors. This tendency transcends the borders of the EU, not only through the exhortation directed at candidate countries to align with the EU members’ practices and positions but also beyond, for instance with the co-ordination attempts carried out within agencies such as the Committee of Legal Advisers on Public International Law (CAHDI), although they are not always successful. Further on, it is also a question of “mechanics” in the sense that the means and procedures to decide on a common approach need to be specified. The particular care with which these procedures are determined, and their implementation monitored, gives evidence to the fact that what is called a European approach, although this approach is certainly desired, is neither spontaneous nor easy to agree on. The European approach to international law therefore stems from a harmonization or unification process, very much like the entire European construction process. It carries a different dimension from that linked to the EU as an actor in international relations and thus oriented to the “outside”.

An internal component also comes into play, relating to the implementation of international law within the EU legal system, and it is obvious that both components can retroact on one another. The principles of this internal component are laid out by the EU treaties, but the way in which they are understood and implemented affects their potential impact. One significant example is provided by the European courts, and particularly the European Court of Justice (ECJ), which have an approach to international law that can unquestionably be qualified as European, in the sense that it is promoted by a European body. This needs to be taken into account, considering the effects their views can produce on external decision-making. This is a different way of demonstrating that, exactly like national approaches, the springs of a European approach are closely linked to the functioning of the internal legal system of the EU and to the consistency it requires. It is therefore not only a negotiated approach, a mere addition of common approaches, or a common denominator to national approaches. Rather, it creates a competition not only between national approaches, but also between itself and these national approaches (however, that they are competing does not imply that they are conflicting). The degree to which a European approach seems necessary is tightly linked to the desired degree of integration. This, however, implies tackling the subject of content and objectives.

C.

The idea of a European approach determined by its content suggests the existence, from a substantial point of view, in terms of values, of elements which identify Europe in how they perceive and deal with international law. For reasons both methodological and political, this issue is sensitive, similar to the issue of archetypes, considering the presuppositions it could convey and the implications it carries.

On the first level of analysis, it should not be more difficult to accept the notion of a European approach to international law than it was to accept the notion of a national approach, on the premise that these approaches supposedly have a clear and individuated identity and under the precondition that the elements of these identities are determined. However, a European approach necessarily competes with a plurality of rather diverse national approaches and it therefore presupposes the possibility of discovering enough unity despite the diversity, or within the diversity, and progressing towards more unity. This is the internal aspect. But there also is an external aspect, and if we acknowledge the idea of a European approach, we must also acknowledge that the external aspect carries a certain number of specificities. In other words, a European approach is both what unifies and specifies, a duality which can easily lead to ambivalence.

With regard to the internal aspect, can we consider that the European approach is rooted in a common core, a tradition, or is it only and merely a construction (the alternative is deliberately reductive and could of course be nuanced)? To assert the existence of a European legal culture which transcends national divisions is obviously prone to the objection that notable differences of legal culture persist even within Europe. One could obviously argue that it is useful or necessary to preserve this diversity, either because it is considered a valuable asset or because it serves as a barrier against a project which does not convince, or at least not entirely. Europe is not exempt from demonstrations of identity which have naturally been built upon one another. However, if what divides Europeans should not prevent them from perceiving what brings them together, it is also true that this mainly refers to an idea of international law and of its function, which does not necessarily induce naturally shared views on the practical level. This can be understood as giving evidence of a method or reasoning which does not exclude differences, if one remembers that those who are affected often have an unclear awareness of what brings them together. One of the lessons from the historical analysis is indeed that those who have been adversaries can retrospectively seem very close. At the same time, supporting the existence of a tradition also implies that the European construction is not entirely artificial, that it is in line not only with history—which is a fact—but also with the rationale of this history. Identifying what brings Europeans together therefore also reduces the threat of a European approach steering too far away from national approaches.

Evidently, the underlying issue is one of legitimacy or, at least, of acceptability, and such a need for roots in a common core does not go without precedent. This line of reasoning has been embraced by the ECJ when it asserted the existence of general principles of European law in order to protect fundamental rights whose protection had not been secured in the founding treaties.Footnote 11 While asserting that the “respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice”,Footnote 12 the ECJ also introduced the reference to “constitutional traditions common to the Member States”. This reference was later integrated into subsequent treaties which codified the case-law. The relevance of this comparison is manifold. First of all, it is well known that this reference to common constitutional traditions is not exclusive (there are other sources of inspiration). Furthermore, it does not create a systematic line of reasoning, implying mechanical research of the principle in every national system, because such a process would reduce it to the mere search for a common denominator. Last, but not least, the process is backed up by the reservation that a principle that is inconsistent with the bases of the European legal order must be ruled out, even if the said principle is common to all countries. In other words, the reference to a tradition functions as a “carrier”, a purveyor in the sense that it links a new practice to existing ones without bindingly tying the future. It also means that the reference to a tradition is kept relatively vague with regard to its content. However, it is probably inherent in the very idea of a tradition to begin the identification process with vague ideas and guidelines which supposedly exist here and there, the first one being the idea that international law is, by its origins, a European language. That this idea can possibly be invalidatedFootnote 13 does not prevent it from being solidly rooted, including in the minds of those detractors who charge the system with Eurocentrism.

This is where the second aspect comes into play, which could validate the possibility of qualifying an approach as European, validate the fact that it carries specificities, and validate the argument that it is rooted in what differentiates Europe from the rest of the world or, at least, distinguishes Europe. First, when Europe is an actor, it necessarily—or logically—projects its own interests and values to the outside. However, one specific and fundamental element, which has become almost inherent, is that Europe, especially after World War II, has deliberately chosen the path of peace through law. The agreed construction, although it obviously implies a political will, rests on the utilization of a particularly extensive legal device, according to techniques which initially were and remain international law techniques. The law is thus not only a favoured tool for action but also the object of a belief, so much so that one cannot but wonder whether it has become a “political theology”.Footnote 14 But, indeed, how could Europe not believe in the outside virtues of a tool that has both worked so well on the inside and warded off its demons? It is therefore not surprising that Europe is said to have a strong preference for an international rule-based system rather than a power-based system, a belief in the virtues of multilateralism which goes hand in hand with a preference for universalism, especially since fundamental values and notions such as peace, human rights, a hierarchy of norms, international community, and the role of the judge are at stake. This inventory of a common core can progressively be enriched and the ongoing European construction provides an important contribution.

What follows depends on the interpretation given to these views. One could argue, for instance, that “the [European] Union does not develop … specific concepts regarding international law. It shares the theories commonly accepted by the international community and claims their implementation in its relations with third parties.”Footnote 15 It is also noteworthy that Europe does not claim the existence of a European international law, similar to the Latin-American international law which existed a century ago and gave rise to an important debate, including among scholars.Footnote 16 In other words, the European approach does not pretend to break away and its guideline rather seems to be a posture in favour of reinforcing the existing international legal order, paired with the implicit presupposition that its transformation is brought about by the notion of general interest, which also impregnates universalism. Henceforth the idea is not so much one of specificity, rather of adherence and support to a model which can be meaningful only if others also support it. This is in line with the analysis of regionalism laid out in the Report on the Fragmentation of International Law, which points out that while international law has always been subject to regional influences, there is no

This can be linked to the fact that “theories of interdependence and international regimes in international relations studies as well as the sociology of globalization point to the advantages of governance through units wider than states, including regional units”.Footnote 18

While this presentation is rather soothing, several paradoxes or ambivalences are nevertheless ill-concealed. First of all, a large number of studies focusing on a European approach are relatively recent and are set in the specific or clearly defined context—for the most part, the transatlantic context—of discussions opposing or bringing together the American and the European vision, especially on the issue of the use of force.Footnote 19 This can be understood as the expression of the fact that an identity is always built upon another one, and it is thus useful to understand the major reference of opposition. However, a broader debate emerges beyond this issue, a debate on international law and its “limits”, which calls into question fundamental conceptions. In this regard, the European approach tends to associate the idea of defending the law with that of defending universalism and values of justice and morals against an instrumental approach. The reference to the universal, however, is ambivalent in the sense that the universal has no voice or “spokesperson” and is thus constantly prone to subjective appropriations which can conceal hidden intentions. As was pointed out at the beginning, the suspicion of an imperialistic temptation is thus always lurking. This is true not only because of the ghost of the past but also because of the discrepancy between discourse and action. The claim that Europe has built guarantees, precisely rooted in legal tools and the rule of law, is therefore not necessarily sufficient to dispel the mistrust fuelled by its historical heritage and the fear that the assertion of a European tradition could conceal the rebirth of conceptions and objectives which have nowadays been formally repudiated. In other words, it is not excluded that Europe still has an imperialistic temptation, although it is obviously clear—since this has become the great European taboo—that this temptation would never be realized through war. This incidentally puts Europe in a situation of relative weakness, which justifies even more its claim for law. However, this says nothing about the ends to which Europe intends to use it.

Second, we need to consider the institutional aspects and, regarding the EU, the necessity to take into account its specificities in international law-making and its implementation. Indeed, although the EU is an international organization, the fact is that, unlike other international organizations, the EU has a voice and uses it either next to or in place of its Member States. Furthermore, we can observe “normative” incidences, for instance the development of mixed agreements which reconfigure the negotiation perimeters and bring about a new approach to treaty law, including the use of disconnection clauses. The example is less anecdotic than it seems. These clauses certainly do not express a clear separatist ambition which would undermine the allegiance to universalism and the role that Europe could play in its promotion. However, these clauses could very well serve the reappearance of federal clauses. Moreover:

Furthermore, this is the external version of the “paradox … that Europe was built on the basis of treaties which exclude the use of international law between its members but require the use of international law with third parties”,Footnote 21 a paradox which can lead to configurations such as exemplified by the MOX Plant case.Footnote 22 This carries the spectre of a “special” or “self-contained regime”, in the sense given to this expression by reflection on the fragmentation of international law. To limit oneself to the observation of this compartmentalization, however, is to address only a part of the effects the European construction has on international law, considering that these effects are a part of the European approach to international law. In fact, the European approach is inseparable from the approach to international co-operation, and of its ways and means. To see only the aspects that compare Europe to a “super state” prevents us from acknowledging just how much the European construction has shaken and put into perspective the Westphalian structure of international law. The European construction has indeed trivialized multilevel co-operation and promoted the development of transnational networks. These networks in turn can serve as mechanisms to trivialize sovereignty, but are also vectors of influence, since all of them materialize and carry the idea of norm harmonization or even standardization. This leads us to the ultimate stage in the determination of what could be a European approach to international law.