The author seeks to unpack five of the main discursive moves witnessed in the literature and case law pertaining to the question of consent to international law. He argues that these five specific discursive moves are performed by almost anyone engaging with the question of consent to international law, be such engagement on the more orthodox side or on the more critical side of the argumentative spectrum. The author claims that these five discursive moves correspond to the reproduction of a very modernist understanding of authority, the constitution of the very subject that is consenting, the anonymization of the author of consent, the reversal of the temporality of the legal discourse on consent and the adoption of very binary patterns of thought. This chapter shows that discursive moves made by international lawyers around the idea of consent bears heavily upon the type of political legitimacy, the type of geography, the type of responsibility, the type of temporality, and the type of hermeneutics that international law is serving.

This chapter explains the Court’s significant role as the ‘master of the sources’ of international law. The author considers what he defines as the ‘repressive dimension of Article 38’, before turning to consider the ways in which the Court has concretely used its role in respect of the sources of international law. Finally, the chapter critically examines how repression and mastery can often work together in international legal thought.

This chapter examines the temporality around which international law is articulated, with an emphasis on the doctrine of international responsibility. The chapter specifically elaborates on how the doctrine of international responsibility suspends international law’s one-directional temporality and provides discursive devices that allow one to travel back and forth between the past of wrongfulness and the present of responsibility. Such two-directional temporality, the chapter argues, is at the service of the narrative function of international responsibility in that such two-way time travel allows a re-representation of the real produced by legal claims made under the doctrine of international responsibility. The chapter ends with concluding remarks on the distinction between the imaginary and the real.

This chapter aims at shedding light on the curious roles performed by the idea of international legal positivism in international legal thought. This chapter first elaborates on some of the common representations of international legal positivism that have allegedly led to its demise and motivated international lawyers to refrain from declaring any affinity with international legal positivism. This is the claim that international legal positivism is dead. In substantiating that claim, this section provides a sketch of five of the main features of international legal positivism as it is commonly understood in the literature (Section 3.2). This chapter then argues that most of the supposed features of international legal positivism are not specific to this supposed tradition of thought, or are simply imaginary. This is the claim that international legal positivism is empty (Section 3.3). In a third part, the chapter goes on to discuss the extent to which international legal positivism continues to be presented as a dominant approach despite few international lawyers declaring themselves positivists.

This chapter argues that, in international legal practice and literature, the actual moment where social reality has engendered a customary norm is never established or traced, but, rather, is always presupposed. According to the argument developed here, the moment custom is made is located neither in time nor in space. Custom is always presupposed to have been made through actors’ behaviours at some given point in the past and in a given place but neither the moment nor the place of such behaviours can be found or traced. In other words, there is never any concrete moment where all practices and opinio juris coalesce into the formation of a rule and which could ever be 'discovered'. This means that the behaviours actually generating the customary rule at stake are out of time and out of space. Because the custom-making moment is out of time and space, it cannot be located, found, or traced, and it must, as a result, be presumed.

Looking at both sides of the Atlantic, d’Aspremont challenges the narrative that pits international legal formalists against non-formalists and the common assumption among international lawyers according to which Europeans are more wedded to formalism – generically understood as the acknowledgement of the constraining role of legal forms – than their realist American counterparts. He explores two sides of the narratives, the “East Atlantic tale” and the “West Atlantic tale,” with the aim of showing that both Europeans and Americans continue to demonstrate attachment to legal forms. The only significant differences between them lie in the way in which they seek to reinvent formalism and the role of legal forms