Odile Ammann, Review of Nathalie Clarenc Bicudo, Florian Couveinhes Matsumoto, Raphaëlle Nollez-Goldbach, & Anne-Thida Norodom, eds. Un droit international français? Pratiques françaises du droit international

This edited volume is the outcome of the sixth Journée de Droit International held at the École Normale Supérieure in 2019. The Introduction analyzes the French practice (or, as we shall see, practices) of international law from the perspective of four legal “disciplines” where “the question of the domestic application of international law” is deemed “unavoidable” (incontournable, at 8), namely public international law, constitutional law, private international law, and administrative law. The book is then divided into three main parts, which are devoted, respectively, to the executive, legislative, and judicial branches, all of which take part in the domestic application of international law. This justifies talking about domestic “practices” of international law in the plural form (at 21). The Conclusion is authored by Denis Alland, who reflects upon the theme of the conference.

The length of each contribution ranges from less than ten pages to almost fifty. This may be because some of them were written by practitioners, while those authored by academics (e.g., Thibaud Mulier, Frédérique Coulée, and Florian Couveinhes Matsumoto) tend to be more detailed. Seeking interactions between academics and practitioners, including in the framework of academic conferences, is highly valuable, though one could also challenge the editors’ emphasis on the need to include “practical” contributions and to offer a “practical” perspective (at 10, 13–14): First, legal scholarship is, by definition, practical, as it contributes to the systematization, understanding, and improvement of the law as a normative practice.¹ Second, there may be important stylistic differences between the contributions of academics and non-academics. Third, members of state authorities may not have enough distance from the domestic application of international law to offer an impartial assessment of this practice, and their freedom is limited when it comes to analyzing this practice. Nathalie Clarenc Bicudo (“Un droit international français ? Point de vue d’une internationaliste”) goes so far as to say that state authorities view international law as a “tool” to pursue political ends at 21). Still, some of the “practical” contributions seem to refute these presumptions, such as Thibaut Fleury Graff’s critical appraisal of the case law of the Cour Nationale du Droit d’Asile, on which he serves (“L’interprétation de la règle internationale par le juge français: Aperçu de la genèse d’une interprétation”). Clarenc Bicudo, however, is right to point out that the domestic application of international law is by no means “a mechanical or purely juridical operation” (at 22)—or, as Jérôme Prévost-Gella emphasizes in his contribution on administrative law (“Un droit international français ? Le point de vue d’un administrativiste”), “[l]’autorité interne n’est pas un automate de la réception et de l’application du droit international public” (“domestic authorities are not automatons for the reception and application of public international law”) at 66).

Methodologically speaking, the editors aim to distinguish themselves from the existing literature on the domestic application of international law, depicting their approach as “practical, descriptive, and global,” as opposed to “normative, theoretical, and fragmented [fractionnée]” (at 9). They also intend to offer what they call a “pluridisciplinary” study (at 16).

The edited volume is a welcome contribution to three main strands of international legal scholarship: the scholarship on the domestic application of international law (which includes but, as the structure of the book acknowledges, is not limited to, international law in domestic courts²); what is commonly referred to as comparative international law;³ and the francophone scholarship on international law.⁴ Taking this triptych as a starting point, this review discusses the following dimensions of the book: its treatment of the relationship between international law and domestic constitutional law; its contribution to the field of comparative international law; and, lastly, the book as contribution to francophone international legal scholarship. As the last two issues are entwined, they will be analyzed jointly. In light of its selective outlook, this review inevitably draws on some of the book’s sixteen substantive chapters more than on others, which should, of course, not detract from the quality of the numerous chapters that had to be omitted.

A key question that will be of particular interest to the readers of this review is what this book tells us about the relationship between international law and domestic constitutional law. As a matter of fact, many, if not most, of the chapters deal with constitutional questions, namely issues that are governed, at least in broad outline, by constitutional law. One may especially mention Articles 52 to 55 of the French Constitution of 1958. In this context, one noteworthy chapter is the rich and thought-provoking contribution by Thibaud Mulier, who offers “the point of view of a constitutional scholar” (“Un droit international français ? Point de vue d’un constitutionnaliste,” at 27), right after Clarenc Bicudo’s international legal scholar’s perspective. It seems trivial to state that the study of the relationship between international and domestic law requires a solid command not just of public international law, but also of domestic constitutional law. However, reading this book, and especially Mulier’s contribution, makes one reflect upon what this actually means for international and constitutional legal scholarship.

As Alain Supiot puts it (using a different terminology than the editors of this volume), legal scholars should practice “intradisciplinarity” (at 29).⁵ One could thus say that a serious study of public international law and its relationship to domestic legal orders requires fostering a continuous dialogue between public international law scholars and constitutional law scholars. Yet, the dialogue metaphor may sound trite, even hollow. Perhaps then we should say that public international lawyers and constitutional lawyers should look each other in the eye, and not just look into the mirror. Thus, it seems important to realize and emphasize, as Mulier does, that international and domestic constitutional law are not only “complementary” (at 28), but also that they have a “common denominator”: the state (at 34).⁶ Domestic constitutional law is essential to grasp the state’s internal structure, which international law usually treats as a black box (at 29). By the same token, international lawyers bring a distinctive understanding to constitutional issues and concepts. One may, for example, think of the notion of “peremptory norms of international law” that appears in Articles 139(3), 193(4), and 194(2) of the Swiss Constitution: Domestic constitutional lawyers tend to interpret this notion autonomously, while international lawyers are less likely to do so.

To come back to the dialogue metaphor, a dialogue is much less banal and much more demanding than it may seem at first glance. It requires not just talking to (and even less talking at) each other, but also listening to and engaging with one another. This includes reading (and, sometimes, reviewing) each other’s work; taking the other “(sub)discipline” into account in one’s own writings (which, in turn, is facilitated by the existence of academic journals that are explicitly open to submissions from both fields); creating opportunities to meet, but also to genuinely engage with each other’s scholarship at joint academic events; and, ideally, writing scholarship together. In short, it requires building not just rhetorical, but tangible “bridges” (at 54) between two legal fields which, in many countries, often remain largely, if not entirely, separate.

Of course, intradisciplinarity requires establishing meaningful connections to more than one other legal field, as the editors, Mulier, and other contributors acknowledge. For instance, in light of the gap that exists between public and private international law (at 55), one may note the editors’ laudable effort to include the latter (at 55–64, 222–5). In this context, Pascal de Vareilles-Sommières aptly emphasizes the value of a “foreign gaze” that challenges what, to the insider, seems so “natural” and familiar (“Un droit international français? Point de vue du droit international privé,” at 56).

As far as interdisciplinarity is concerned, Mulier also relies on political science, highlighting that “cet apport de la science politique peut être utile afin de ne pas ‘délaisse[r] une partie du réel’ lors de l’analyse constitutionnelle” (“this contribution of political science can be useful in order not to ‘neglect a part of reality’ in the context of constitutional analysis”) (at 45). Political science research is also relevant for public international law, Mulier writes; it can, for example, offer insights into diplomatic negotiations (at 47). At the same time, it seems important for legal scholars not to succumb to a methodological complex of inferiority toward other disciplines, and not to let these other disciplines absorb what is distinctive about legal scholarship. As Mulier points out, public lawyers should not underestimate the value of their contributions (at 47), and all the more so given that public law tends to be neglected by political scientists (even though it is difficult to blame them for it, given the scarcity of joint fora).

To add a last thought on our tendency to work in (sub)disciplinary silos, it is worth noting that in some countries (such as Germany or Switzerland, though in the latter case, this only seems to apply to German-speaking universities), it is common for academics to hold a chair for public international law and constitutional law. In other words, international lawyers are often also constitutional lawyers, and vice versa. On the one hand, what could be more beneficial to intradisciplinarity than this dédoublement fonctionnel (to use an expression coined by another French scholar, Georges Scelle, though he used this expression to describe the domestic application of international law)? The combination of public international law and constitutional law, and the academic “hybridization”⁷ that ensues, seems highly conducive to cross-fertilization between the two “disciplines,” as the editors call them. On the other hand, having to wear these two hats may prevent scholars from gaining an in-depth knowledge and therefore from becoming true specialists in their field. Therefore, in many countries, including France (and this is reflected in the book’s “disciplinary” perspectives), one is either a constitutional lawyer or a public international lawyer.

A second dimension of the book that is worth analyzing in more depth is its contribution to comparative international law. The editors explicitly want to make such a contribution: their goal is to give access to French practices and to provide “basic material in the hope that authors will use it to conduct comparative studies” (at 24). One could add that given the link that exists between public international law and domestic constitutional law, such a book has the potential to also contribute to comparative constitutional law. This objective may seem at odds with this book’s target audience, which is decidedly French (or at least French-speaking). This brings us back to the importance of dialogue, and to the risk of remaining confined to our own silos, this time culturally and linguistically speaking. Given the importance of language in comparative international law, this third dimension of the book, namely its contribution as a piece of francophone international legal scholarship, will be analyzed jointly with the second one (i.e., the book’s contribution to comparative international law).

From the perspective of comparative international law, academic conferences and publications on the domestic application of international law are essential. Without this first step, there can be no comparative international law. The next step is to put these domestic practices into perspective and to situate them within a wider context, not only to understand them better, but also to avoid the risk of self-referentiality. Self-referentiality is by no means the monopoly of academic analysis: when interpreting international law, state authorities (including domestic courts) often primarily refer to the practice(s) of their own state, instead of taking the practice(s) of other states into account.⁸

It would be unfair to criticize this book for taking just one of these two significant steps. This first step already requires tremendous work. However, if the objective is to contribute to comparative international law, then this second step seems indispensable. Without this additional effort, there is a risk that foreign readers will miss such important books, either because they lack access to them, be it for practical reasons or for linguistic ones, or because they are unable to contextualize and hence fully grasp their content.

Let us begin with the issue of access. First, practically speaking, access to francophone legal scholarship remains limited (though, of course, this will vary greatly depending on one’s institutional affiliation, geographical location, and personal network). Second, as already pointed out, access also depends on one’s linguistic skills. On the one hand, the dominance of English in contemporary international legal scholarship should be viewed critically; for various reasons that cannot be elaborated in detail, it is important for international legal scholars to keep publishing in their native language(s).⁹ As Clarenc Bicudo points out, the domestic application of international law is influenced by cultural factors (at 22); translations may not do justice to at least some of them. On the other hand, to effectively contribute to comparative international law, one must make the content of one’s analysis available to a foreign audience. Neither of these two approaches is perfect, but choosing the first likely means having to rely on additional strategies to ensure that one’s contribution does not remain confined to the boundaries of one’s own state. Arguably, book reviews in international and foreign journals may help give such books the visibility they deserve, but this alone is not enough. Translations, book launches, and academic symposia that target not only a domestic but also an international audience can be highly valuable in this regard.

More fundamentally, making an effective contribution to comparative international law likely requires engaging with the practice(s) and scholarship in other states—and hence comparing these various practices—in the first place. In this respect, the book might remain somewhat below its potential, as many (though not all) contributions primarily (or even exclusively) refer to French legal scholarship and to French practices. Generally speaking, few foreign resources and materials seem to have been taken into account. There are important exceptions, of course: one may, for example, mention Couveinhes Matsumoto’s impressive contribution (“‘L’absence’ du parlement dans les procédures conventionnelles françaises: Un déficit démocratique pouvant être comblé”), which, among other jurisdictions, draws on Swiss and EU practices of international law (and whose twenty-five subsections defy the almost mythical binary structure of French academic writing). Similarly, Clarenc Bicudo refers to several foreign scholars as well as to the work of the International Law Association (at 18–20); the fact that all these foreign resources are in English shows the extent to which this language has come to dominate international legal research. Laurent Trigeaud’s chapter (“La détermination par l’exécutif de la procédure interne d’engagement international”) includes references to the United States, while Alexandre Hermet’s informative analysis of the identification of customary international law by French judges (“L’identification de la coutume internationale par les juges français”) establishes some comparisons with the case law of international courts.

Again, it seems unsurprising for a book about French practices of international law to primarily refer to French practices. Still, non-French readers who are not familiar with the technicalities of French law might need some additional contextualization of these practices. Denis Alland concludes that “si l’on veut parler de nationalisation du droit international pour décrire ce phénomène, il est clair que le cas du droit français est structurellement semblable à celui de n’importe quel autre droit interne” (“if we want to speak of the nationalization of international law to describe this phenomenon, then it is clear that the case of French law is structurally similar to that of any other domestic law”) (“En quel sens parler d’un ‘droit international français’?,” at 332); yet, this comparative dimension remains underexplored. Similarly, in the first pages of the book, Clarenc Bicudo acknowledges that the French authorities applying international law are influenced by “[l]es représentations qu’[elles] s’en font, reflets des formations reçues dans ce domaine (notamment des universités françaises), mais aussi projections d’une ‘certaine idée de la France’ dans les relations internationales” (“the representations that they make of it, which reflect the training received in this field (particularly from French universities), but also projections of a ‘certain idea of France’ in international relations”) (at 22). It would have been fascinating for the reader to be able to explore these various aspects and, thereby, to gain a more informed understanding of the French practice(s) of international law. Indeed, even when access is guaranteed linguistically and practically speaking, being heard is not the same thing as being understood. As Anthea Roberts shows in her monograph querying the international dimension of international law, French legal academia and scholarship have some distinctive features that contribute to their insular character.¹⁰ While the book offers an excellent overview of the French practice(s) of international law, Roberts’s study and this review’s call for greater intelligibility and permeability should be read as an encouragement to be even more open to a dialogue with other legal systems.

However, the onus should not be entirely on the shoulders of the editors and contributors; academic publishers have an important role to play in the development of comparative international law. The fact that major international academic publishing houses, which usually publish books written in English anyway, tend to view the literature on the domestic application of international law as not “marketable” enough (except perhaps when it comes to global superpowers such as the United States, or to major anglophone jurisdictions), is certainly part of the problem. This literature is therefore often relegated to “domestic” publishers. This is yet another facet of the many potential points of friction (and hence also of contact) between the domestic and the international. Through their initiative and work, the editors and authors of this volume have undoubtedly contributed to a better understanding of one of these points of juncture. Moreover, their innovative book is a testimony to the continued vitality and potential for future growth not only of comparative international law, but also of comparative constitutional law and francophone international legal scholarship.

Footnotes