ABSTRACT
The history of international law is strewn with accounts of progress: events (institutional, doctrinal, methodological, other) celebrated by the discipline as examples of some kind of evolution or advance. We are all familiar with the cases in point: 1899 and 1907 and the Hague Peace Conferences; 1945 and the Charter of the United Nations; 1946 and the Nuremberg and Tokyo Trials; 1948 and the Universal Declaration of Human Rights; 1949 and the Geneva Conventions; 1969 and the Vienna Convention on the Law of Treaties; and so on. The same holds true for processes spanning longer periods of international law’s development, such as the abolition of slavery, decolonization, the codification of international law, the limitation of the reserved domain of states, the prohibition of the use of force, the obligation to peacefully resolve international disputes, to name a random few. Responding to the theme of the book, this chapter addresses one of the
most acclaimed early disciplinary events, namely the adoption of article 38 of the Statute of the Permanent Court of International Justice (PCIJ) in 1920 and the subsequent emergence of the doctrine of the sources of international law. The argument sidesteps the ontological question of whether our event really signifies progress for international law. Rather, it follows the more unusual tack of exploring what makes events such as the adoption of article 38 appear to professional consciousness to constitute progress. It is therefore an investigation about how meanings of progress may be produced in international law discourse. The idea of progress is astonishingly pervasive in international law’s
language and modes of thinking. Progress in our methods and techniques, in our understanding, in solving problems, in achieving goals such as maintaining peace, bringing justice or protecting human rights seems so natural a goal that questioning its premise appears pedantic. But is it really that obvious? Although ‘progress’ or ‘progressive’ have powerful connotations, they are also notions that acquire concrete meaning only when situated in a particular story, namely an explanation of how things were before and what they ought
to become. Progress, in that sense, has no essence but a narrative. The following pages make the narrative itself the centre of our investigation. This analysis is therefore not about truth or falsity but about the structures within a discourse that make something appear true or false. It is not about ‘external’ critique (whether a narrative ‘truly’ represents reality) but ‘internal’ critique (whether the narrative has internal contradictions and gaps). By investigating how meanings about progress are produced by texts,
one may come to understand how rhetorical strategies remove from sight the ideological dimensions of legal argument. To put it in crude terms, if progress talk proves to be a powerful ideological rhetorical strategy of (de)legitimation, one may be forced to reconsider some well-rooted assumptions about international law. These include such assumptions as international law being a formal discourse without gender, religion, culture, ideology, economic theory, and so on. Most importantly, one may be able to understand better the structure of specific debates that invoke or rely on the idea of progress as part of their rhetorical apparatus. The above considerations constitute the starting point of this enquiry.
