Feet on the Clouds, Head against the Ground: Antonio Cassese’s Militant Legal Idealism

GRADONI, Lorenzo

doi:10.1093/ejil/chae025

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Feet on the Clouds, Head against the Ground: Antonio Cassese’s Militant Legal Idealism

GRADONI, Lorenzo

2024 • In European Journal of International Law, 35 (2), p. 297 - 330

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Keywords :

International Law; History of International Law; Antonio Cassese

Abstract :

[en] This article examines Antonio Cassese’s profound engagement with international law through the lens of intellectual biography. Drawing from unexplored archival materials and early writings, it illuminates the evolution and nuances of Cassese’s international legal thought and practice before his rise to prominence as an architect of post-Cold War international criminal law, including his thinly disguised espousal of natural law thinking; his early defiance of the Italian school’s formalism, matched by an enduring attachment to it; his complicated attitude towards Marxism – a major intellectual force in Italy until the late 1970s – and his brief association with Third-Worldism. This article shows how Cassese’s formation within a school that emphasized the exclusively scientific character of legal scholarship inculcated in him a strong culture of expertise that he sought to exploit politically, reconnecting with a Euro-American reformist or ‘progressive’ tradition for which such expertise was instrumental to the realization of a grand design for world peace and justice.

Disciplines :

European & international law

Author, co-author :

GRADONI, Lorenzo ; University of Luxembourg > Luxembourg Centre for European Law (LCEL) > LCEL Research

External co-authors :

Language :

English

Title :

Feet on the Clouds, Head against the Ground: Antonio Cassese’s Militant Legal Idealism

Publication date :

May 2024

Journal title :

European Journal of International Law

ISSN :

0938-5428

eISSN :

1464-3596

Publisher :

Oxford University Press

Volume :

Issue :

Pages :

297 - 330

Peer reviewed :

Peer Reviewed verified by ORBi

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https://academic.oup.com/ejil/article-pdf/35/2/297/58812039/chae025.pdf

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Bibliography

B.V.A. Röling and A. Cassese, The Tokyo Trial and Beyond: Reflections of a Peacemonger (1993); A. Cassese, Five Masters of International Law: Conversations with R.-J. Dupuy, E. Jiménez de Aréchaga, R. Jennings, L. Henkin and O. Schachter (2011).
On the late 19th-century origins of this tradition, see H.J. Morgenthau, Scientific Man versus Power Politics (1946), at 11–121; Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’, 65 Nordic Journal of International Law (1996) 385; M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2002), at 57–97.
Oppenheim, ‘The Science of International Law: Its Task and Method’, 2 American Journal of International Law (1908) 313, at 355–356.
A. Cassese, Self-determination of Peoples: A Legal Reappraisal (1995), at 3.
Much of this material consists of typed or handwritten correspondence in Italian. Translations from Italian and occasionally French are mine. When the quoted correspondence is in English, this is evident from the context.
Partial recording on file with author. For information about the interview, which was made sometime between 1993 and 1995, see Cassese, supra note 1, at ix, 272; see also letter from G. Arangio-Ruiz to A. Cassese, 9 December 2005, ACA-17, at 144 (requesting the typescript for a final revision that never made it back to Cassese). Since a significant fraction of the archive is digitized and available in PDF format, for digitized documents I provide the folder’s number and the page of the PDF file containing the relevant information. For undigitized documents, since the folders are numbered but not the files, I only provide the folder’s number and sufficient information to identify the cited document. In such cases, when the document consists of several pages, I indicate the relevant page number followed by the document name in brackets.
G. Morelli, La sentenza internazionale (1931), at 69–81.
During the interview, when Cassese used the term ‘community’ instead of ‘system’, Gaetano Arangio-Ruiz corrected him.
During the interview, Cassese and Arangio-Ruiz spoke an English sprinkled with Italian phrases.
See, e.g., letter from A. Cassese to Elihu Lauterpacht, 10 October 1979, ACA-21, at 12 (‘I am increasingly at odds with the Italian legalistic tradition [as I] tend to emphasize the political aspects of the legal issues I deal with’).
The hallmarks of the European tradition of international law according to Orford, ‘Scientific Reason and the Discipline of International Law’, 25 European Journal of International Law (EJIL) (2014) 369, at 372.
Letter from P. Laveglia to A. Cassese, 26 May 1970, ACA-21, at 180.
See Laveglia, ‘Cassese, Leopoldo’, 21 Dizionario biografico degli italiani (1978), available at https://www.treccani.it/enciclopedia/leopoldo-cassese_(Dizionario-Biografico)/?search=CASSESE%2C%20 Leopoldo%2F.
Cassese, ‘Ricordo di mio padre Leopoldo Cassese’, in F. De Negri, G. Pennella and L. Rossi (eds), Leopoldo Cassese archivista e organizzatore di cultura: seminari di studio in occasione del cinquantenario della scomparsa (2011) 307, at 310.
Ibid., at 311–312.
Collection of membership cards, ACA-6, at 117–118.
Cassese, supra note 14, at 311.
Ibid.
He ultimately acknowledged that he ‘became a Communist … out of pure imitation and not of deep conviction’ (ibid., at 311–312).
Collection of membership cards, supra note 16, at 118.
See A. Cassese, L’esperienza del male: guerra, tortura, terrorismo alla sbarra. Conversazione con Giorgio Acquaviva (2011), at 222.
Collection of membership cards, supra note 16, at 119–120.
Letter from G. Amato to A. Cassese, 18 January 1963, ACA-17, at 99.
Letter from G. Sperduti to A. Cassese, 21 March 1970, ACA-24, at 222.
Cassese, ‘Soliloquy’, in A. Cassese, The Human Dimension of International Law: Selected Papers (2008) lix, at lxi.
Tomaso Perassi was at the time professor at the University of Rome ‘La Sapienza’, a former legal advisor to the Fascist government (but not a fascist), member of and a key participant in the post-war Constitutional Assembly and judge at the Constitutional Court. See Bartolini, ‘Italian Legal Scholarship of International Law in the Early Decades of the Twentieth Century’, in G. Bartolini (ed.), A History of International Law in Italy (2020) 127, at 143–149.
Cassese, ‘Soliloquy’, supra note 25, at lxx–lxxi.
See letter from G. Sperduti to A. Cassese, 24 February 1968, ACA-24, at 228 (‘[t]he process of turning the [UN Commission on Human Rights] into an oversight body looking into specific situations is in full swing and puts me, from the standpoint of legal orthodoxy, in no small difficulty. Having found myself in the position of having to vote in favour of a set of resolutions concerning the situation in … southern Africa, I declared that the scandalous nature of such situation imposed on me the moral obligation to put my legal scruples to rest’).
Cassese, ‘Soliloquy’, supra note 25, at lxx–lxxi.
Ibid., at lxii.
Ibid., at lix.
Ibid.
Letter from G. Amato to A. Cassese, 29 March 1963, ACA-17, at 101.
Segre, ‘Il diritto internazionale come scienza di classe al servizio dell’imperialismo’, 6 Rinascita (1949) 421.
Giuliano, ‘La concezione marxista del diritto’, 5 Rinascita (1948) 68. For further background information and analysis, see Gradoni, ‘Burn Out and Fade Away: Marxism in Italian International Legal Scholarship’, in Bartolini, supra note 26, 234, at 239–244.
T. Perassi, Lezioni di diritto internazionale (1955).
G. Sperduti, Lezioni di diritto internazionale (1958).
A. Verdross, Völkerrecht (5th edn, 1955).
A. Verdross and B. Simma, Universelles Völkerrecht (1981).
Letter from A. Cassese to Elihu Lauterpacht, 28 October 1983, ACA-21, at 170.
Cassese, ‘Soliloquy’, supra note 25, at lxi.
Draft book review, corrected typescript, ACA-31.
Cassese, ‘Alfred Verdross, Völkerrecht, 3a ed. rivista ed ampliata, Wien, Springer, 1955’, 40 Rivista di diritto internazionale (1957) 653, at 654.
Ibid.
And he arguably made it his own. See section 8 of this article.
Cassese, supra note 43, at 655.
Ibid., at 656.
A. Cassese, Il diritto interno nel processo internazionale (1962).
Cassese, ‘La Conferenza internazionale di Teheran sui diritti dell’uomo’ (undated typescript), ACA-26, at 17–18 (typescript).
Ibid., at 18; cf. Cassese, ‘La Conferenza internazionale di Teheran sui diritti dell’uomo’, 51 Rivista di diritto internazionale (1968) 669, at 685–686.
Cassese, supra note 49, at 18. Interestingly, in his latest autobiographical work, Cassese had a wrong recollection of the reasons of the clash: ‘[T]he bulk of my critique was censored by the journal’s watchful Editors: in their opinion, one should not mix legal analysis with political commentary about the Shah’. Cassese, supra note 21, at 235.
Letter from G. Morelli to G. Gaja, 3 January 1969, ACA-26 (emphasis in original; underlined in the original).
Ibid.
Letter from G. Gaja to A. Cassese, 29 January [1969], ACA-26.
Letter from G. Gaja to A. Cassese, 6 February [1969], ACA-26.
Letter from A. Cassese to A. Malintoppi, 10 February 1969, ACA-26, at 1 (typescript).
Ibid., at 1–2.
Ibid., at 2.
Ibid., at 2–3.
Ibid., at 3.
Ibid.
Letter from A. Malintoppi to A. Cassese, 12 February 1969, ACA-22, at 32.
Cassese, ‘L’efficacia delle norme di adattamento alla Convenzione europea dei diritto dell’uomo’, 5 Rivista di diritto internazionale privato e processuale (1969) 918; Cassese, ‘L’azione delle Nazioni Unite contro l’apartheid’, 25 Comunità internazionale (1970) 3; Cassese, ‘Current Trends in the Development of the Law of Armed Conflicts’, 24 Rivista trimestrale di diritto pubblico (1974) 1407.
Cassese, ‘Consensus and Some of Its Pitfalls’, 58 Rivista di diritto internazionale (1975) 754; Cassese, ‘Il contributo degli internazionalisti ai lavori del Ministero per la Costituente’, 60 Rivista di diritto internazionale (1977) 47. This last article, unmentioned in Cassese’s bibliographies, is a short critical introduction to a historical document that Cassese was likely invited to contribute on account of his expertise in the subject.
Cassese, supra note 48.
Balladore Pallieri, ‘Rassegna critica di alcune recenti pubblicazioni italiane’ (typewritten copy), ACA-31. In the original, Giorgio Balladore Pallieri uses the same adjective twice (for ‘overbearing’ and ‘excessive’) – that is, the old-fashioned and, in this case, slightly mocking ‘soverchio’, whose unnatural iteration accentuates the irony.
Letter from G. Morelli to A. Cassese, 13 June 1963, ACA-27 (‘[i]t was with keen interest that I read your work, which, in many respects, I appreciated. However … I found the book’s general approach puzzling’). Morelli deferred clarification to a future face-to-face conversation.
A. Cassese, Il controllo internazionale: contributo alla teoria delle funzioni di organizzazione dell’ordinamento internazionale (1971).
Ibid., at 2.
Ibid. (emphasis omitted).
In a footnote, Cassese defines his position as a ‘return to Perassi’s conceptualization’, using the somewhat ironic term ‘concettuologia’. Ibid., at 295, n. 20.
Ibid., at 229 (‘[t]he legal concept of oversight embraces... different entities, differently regulated by law, and its elaboration is essentially the result of a doctrinal construction which, by identifying certain essential similarities displayed by those entities … leads to the identification of a legal concept’).
In those years, the Rivista entrusted Cassese with the translation into Italian of an essay that Sperduti had originally written in English or French. In a letter to Malintoppi, Cassese mocked his mentor’s style by remarking that the translation would at last supply ‘a piece by Sperduti in plain Italian’. Letter from A. Cassese to A. Malintoppi, 10 July 1974, ACA-22, at 38.
Paul De Visscher wrote to him in admiration of ‘the talent’ with which he had ‘drawn up a doctrinal account of a matter that has developed empirically’. Letter from P. De Visscher to A. Cassese, 12 April 1972, ACA-18, at 394.
Cassese, ‘Günter Decker, Das Selbstbestimmungsrecht der Nationen, Göttingen, O. Schwarz Verlag, 1955’, 41 Rivista di diritto internazionale (1958) 356.
Cassese, ‘Soliloquy’, supra note 25, at lxx.
Cassese, supra note 68, at 3 (emphasis in original).
Ibid., 294.
Ibid., at 2 (emphasis in original).
Ibid., at 231.
Ibid., at 232 (emphasis omitted).
Ibid., at 238.
See, recently, Kattan, ‘“There Was an Elephant in the Room”: Reflections on the Role of Judge Sir Percy Spender (1897–1985) in the South West Africa Cases (1960–1966) after Half a Century’, 31 Leiden Journal of International Law (LJIL) (2018) 147. South West Africa (Liberia v. South Africa; Ethiopia v. South Africa), Judgment, 18 July 1966, ICJ Reports (1966) 6.
Cassese, supra note 68, at 310.
Ibid., at 196–197, n. 22. The topic is the one that, many years later, Cassese felt the need to bring up during the interview with Arangio-Ruiz. See text preceding note 7 above.
Acquaviva and Pinzauti (eds), ‘Walking the Road He Paved: A Tribute to Antonio Cassese’, 10 Journal of International Criminal Justice (2012) 1419, at 1432.
On which, see Gradoni, supra note 35, at 244–253.
Letter from A. Cassese to I. Pavlovich Blishchenko, 29 January 1973, ACA-17, at 256–257.
P. Paone, Concetto di comunità internazionale e mutamento delle condizioni storiche (1973). For background and a synopsis, see Gradoni, supra note 35, at 249–253.
Cassese, ‘Diritto internazionale’, in S. Cassese (ed.), Guida alla facoltà di giurisprudenza (1978) 124, at 131. At the time, Paone was not (yet) a fringe figure. In 1968, he outplayed Cassese in a contest for full professorship. See ‘Relazione della Commissione giudicatrice del concorso per professore straordinario di diritto internazionale dell’Università degli Studi di Bari’, 19 March 1968, ACA-2, at 1, 3–4 (photocopy).
A. Cassese, Il diritto internazionale in Italia (2021).
Ibid., at 53 (where an isolated and seemingly interrupted reference to Marxism appears).
For context, see Chemillier-Gendreau, ‘Contribution of the Reims School to the Debate on the Critical Analysis of International Law: Assessment and Limits’, 22 EJIL (2011) 649.
See letter from M. Chemillier-Gendreau and J.-P. Colin to A. Cassese, with annex, 7 May 1980, ACA-18, at 66–67; letter from A. Cassese to M. Chemillier-Gendreau and J.-P. Colin, 23 June 1980, ACA-18, at 69.
Röling and Cassese, supra note 1, at 7.
Cassese, supra note 21, at 238.
See B.V.A. Röling, International Law in an Expanded World (1960), at 121.
Cited in W.D. Verwey, Bert V.A. Röling 1906–1985 (1985), at 34.
Paone, supra note 89, at 482 (emphasis in original).
Letter from A. Cassese to B.V.A. Röling, 28 March 1978 (on file with author).
Cassese, ‘La lotta per un nuovo diritto internazionale: ricordo di B.V.A. Röling’, 18 Politica del diritto (1987) 275, at 288–289.
Craveri, ‘Basso, Lelio’, 34 Dizionario biografico degli italiani (1988), available at https://www.treccani.it/enciclopedia/lelio-basso_(Dizionario-Biografico)/?search=BASSO%2C%20Lelio%2F.
The text of the Charter of Algiers – Universal Declaration of the Rights of Peoples (1976) is available at https://permanentpeoplestribunal.org/wp-content/uploads/2016/06/Carta-di-algeri-EN-2.pdf.
Alongside Cassese, the drafting committee comprised Georges Abi-Saab, Luigi Ferrari Bravo, Paolo Fois, François Rigaux, Jean Salmon, Richard Falk (in the role of external advisor) and Léo Matarasso (not a specialist but a Third-Worldist lawyer of Basso’s generation and his close friend). See Cassese and Jouve, ‘Préface’, in A. Cassese and E. Jouve (eds), Pour un droit des peuples: essais sur la Déclaration d’Alger (1978) 21, at 22.
Basso, ‘Avant-propos’, in Cassese and Jouve, supra note 104, 7, at 9.
Ibid.
Cassese and Jouve, supra note 104, at 21.
Ibid., at 22 (emphasis in original).
Cassese, ‘La portée politico-juridique de la Déclaration d’Alger’, in Cassese and Jouve, supra note 104, 61, at 63.
Ibid., at 64.
Ibid., at 71.
Ibid., at 70, quoting H. Welzel, Naturrecht und Materiale Gerechtigkeit (1962), at 242.
Cassese and Jouve, supra note 104, at 23.
Cassese, supra note 109, at 77.
Letter from L. Basso to A. Cassese, 7 April 1978, ACA-26.
The tribunal’s decisions are available at http://permanentpeoplestribunal.org/category/jurisprudence/?lang=en.
See, e.g., letter from A. Cassese to J. Echeverría, 21 February 1980, ACA-19, at 7.
Letter from A. Cassese to R. Falk, 21 January 1981, ACA-19, at 32.
The response from Ruth First, the anti-apartheid activist who was then about to receive a deadly parcel bomb from the South African police, is unfortunately missing.
‘A Few Considerations on the Permanent Tribunal for the Rights of Peoples’ (undated memorandum), ACA-26, at 1, para. 1 (emphasis in original; underlined in the original).
Ibid.
Ibid.
Ibid., at 2, para. 2.
Ibid., para. 3.
Ibid.
Ibid., at 2–3, para. 3 (‘in the case of Eritrea, only a few Italian newspapers spoke of the Tribunal, and then very briefly’) (emphasis in original; underlined in the original).
Ibid., at 3–4, para. 4.
Ibid.
Letter from A. Cassese to T.C. van Boven, 27 June 1983, ACA-17, at 331.
A. Cassese, Terrorism, Politics and Law: The Achille Lauro Affair (1989), at viii.
Ibid., at ix.
Ibid., at 64.
Cassese, ‘Soliloquy’, supra note 25, at lxv.
Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Impact of Foreign Economic Aid and Assistance on Respect for Human Rights in Chile, Report Prepared by Mr. Antonio Cassese, Rapporteur, UN Doc. E/CN.4/Sub.2/412, 3 August 1978, vol. I, at 12, para. 38.
Ibid., vol. IV, at 7, para. 459.
Ibid., vol. III, at 30, para. 301.
Ibid., at 32, paras 306–307.
Ibid., at 72, paras 379–380.
Ibid., at 41, paras 533–535.
Ibid., at 35, para. 520.
Ibid., at 46, para. 539.
See letter from A. Cassese to F.C. Newman, 4 February 1981, ACA-23, at 110; letter from T.C. van Boven to J.H. Kagiwada, 12 March 1979 (A. Cassese copied), ACA-17, at 332 (‘Nino’s report is one of the most interesting and thought-provoking documents … produced in the United Nations in recent years’); see also letter from A. Schubert to A. Cassese, 30 October 1978, ACA-24, at 122.
Sub-Commission on Prevention of Discrimination and Protection of Minorities, supra note 134, vol. IV, Annex II, at 1.
Ibid., vol. I, at 3, paras 12–13.
Decision on the Defence Motion on Jurisdiction, Tadić (IT-94-1), Trial Chamber II, 10 August 1995, paras 1–40.
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1-AR72), Appeals Chamber, 2 October 1995, paras 14, 19, 48.
Cassese himself acknowledged the existence of a ‘precedent’: Ahmed Khalifa’s report on the human rights impact of foreign assistance to racist regimes in southern Africa. In handling the matter, Ahmed Khalifa felt no need to address analogous objections. See Sub-Commission on Prevention of Discrimination and Protection of Minorities, Adverse Consequences for the Enjoyment of Human Rights of Political, Military, Economic and Other Forms of Assistance Given to the Colonial and Racist Regimes in Southern Africa, Report submitted by Mr. Ahmed M. Khalifa, Special Rapporteur, UN Doc. E/CN.4/Sub.2/383, 18 July 1977.
Sub-CommissiononPreventionof DiscriminationandProtectionof Minorities,supranote134,vol.I,at2–14.
Ibid., at 4, para. 18.
Ibid., at 6, para. 22.
Cassese’s mentor, Giuseppe Sperduti, represented the Italian government at the UN Commission on Human Rights on several occasions and sat on the European Commission of Human Rights for over three decades (1960–1992). Sperduti’s mentor, Tomaso Perassi had long been chief legal advisor to the Foreign Ministry. Moreover, Roberto Ago, a distinguished academic close to government circles since the late 1930s, was a family friend. See letters from A. Cassese to R. Ago, 6 December 1979 and 15 July 1986, ACA-17, at 53–54, 59.
On 8 February 1977, Cassese wrote to two senior officials at the Foreign Ministry, expressing his ‘astonishment and dismay’ at his exclusion from the Italian delegation to the diplomatic conference on humanitarian law then underway in Geneva. In the handwritten draft of the letter, a string of paragraphs – eventually deleted – blamed the exclusion on the influence of the US administration (for which Cassese was too close to the international left) on the Italian government (compare letter from A. Cassese to P. Pucci di Benisichi (Umberto Vattani copied), 8 February 1977, ACA-22, at 157–158, with handwritten manuscript letter, undated, ACA-22, at 166). This affair may have inspired or reinforced Cassese’s interest in the subject of parliamentary control over foreign policy and was also the occasion of a reconnection with the Italian Communist Party. As he was about to (but ultimately did not) write to the two diplomats, ‘[r]eturning to the US veto against me, let me say that such interference by a foreign State in the composition of our delegation ... is obviously a very serious political matter that could legitimately become the subject of parliamentary scrutiny’ (ibid., at 168). Two weeks later, he wrote to Romano Ledda, deputy editor-in-chief of the communist periodical Rinascita, submitting an unsolicited manuscript on parliamentary control of foreign policy that ‘spotlighted some of our governments’ shenanigans’, while stressing ‘the commendable initiatives of some left-wing parliamentarians’, all communists (letter from A. Cassese to R. Ledda, 24 February 1977, ACA-21, at 195). In the manuscript, he called the government’s behaviour ‘grotesque’ (‘Per un più incisivo controllo parlamentare della politica estera’ (undated typescript), ACA-21, at 198). Cassese’s papers include an undated tract published by the Italian Communist Party’s Ministry of Foreign Affairs Unit and urging a radical redesign of the ministry’s workings (‘Partito Comunista Italiano – Cellula Ministero Affari Esteri – Contributo per un dibattito sulla gestione degli strumenti di politica estera in Italia’, ACA-22, at 223–224).
In 1980, Cassese informed the Foreign Ministry of his aspiration to become a member of the UN Human Rights Committee, but the government decided not to nominate him. See letter from A. Cassese to G. Danovi and F. Destefanis, 7 July 1980, ACA-22, at 189; letter from A. Cassese to unnamed foreign ministry official, 24 July 1980, ACA-22, at 190; letter from G. Danovi to A. Cassese, 19 August 1980, ACA-22, at 187 (‘your nomination … on which it would be impossible … to get all the Latin American votes (and I need not explain why) or even Western ones, would not have offered prospects of success solid enough to put your name and prestige in jeopardy)’. The allusion to the diplomatic repercussions of the report on Augusto Pinochet’s Chile was plain enough. Three years later, the government turned him down again, leaving his ‘poor ego stunned and battered ... frustrated and vilified’ (letter from A. Cassese to L. Vittorio Ferraris, 31 October 1983, ACA-19, at 70).
In 1992, Sperduti indicated Cassese as his potential ‘successor’ to his long-held seat at the European Commission of Human Rights. Upon receiving his mentor’s endorsement, Cassese wrote to the foreign minister, expressing his wish to be a candidate (letter from A. Cassese to E. Colombo, 19 September 1992, ACA-7, at 7). The minister chose to sponsor Benedetto Conforti, ‘in consideration of his greater seniority … and nothing else’, a circumstance that the minister offered as ‘a compliment’ to Cassese’s ‘comparatively young age’ (letter from E. Colombo to A. Cassese, 3 December 1992, ACA-7, at 4). In 2001, when Cassese lost the election for the European Court of Human Rights, he was too old to make another attempt. He described this defeat as ‘a severe setback for my professional life’ (email from A. Cassese to R. Higgins and 25 others, 25 April 2001, ACA-7, at 22–24).
In 1985, Cassese, at Ago’s suggestion, wrote to a socialist member of parliament, urging him to bring his influence to bear on the foreign minister and have him break the deadlock over the appointment of the legal advisor to the Italian diplomatic mission in Geneva. What mattered most to him was to prevent a Christian Democrat (‘hardly qualified for the task’) from getting it instead of ‘[t]he two most competent candidates, both from the left’ – namely, Cassese himself and a younger colleague (letter from A. Cassese to A. Silvano Labriola, 23 November 1985, ACA-21, at 5–6). The self-candidacy failed, causing a rift between Cassese and Sperduti. See letter from A. Cassese to G. Sperduti, 16 July 1985, ACA-24, at 249 (‘[t] he affair of … the post in Geneva has deeply saddened and embittered me … for two main reasons. The first is that, faced with the exclusively political manoeuvring of the other candidate, I was obliged, with great embarrassment, to resort to some political “backing” (Amato, Spadolini), which I found humiliating – even though I am talking about politicians who are also university professors and value expert knowledge – for in decisions like the one for the post in Geneva, only competence and professionalism should matter. … The second reason lies in your Pontius Pilate-like attitude. Having known you for so many years, I thought you would take a stand in favour of merit and competence’). Giuliano Amato was at the time secretary of the Council of Ministers. Giovanni Spadolini was minister of defence.
Cassese, ‘A Plea for a Global Community Grounded in a Core of Human Rights’, in A. Cassese (ed.), Realizing Utopia: The Future of International Law (2012) 136, at 142. For a critique of such reliance on expert knowledge, see Milanovic, ‘On Realistic Utopias and Other Oxymorons: An Essay on Antonio Cassese’s Last Book’, 23 EJIL (2012) 1033, at 1046.
After failing to be elected to the European Commission of Human Rights (see note 154 above), Cassese disclosed to Carlo Russo, then a judge at the Strasbourg Court, that he had resolved ‘not to approach Giuliano Amato at all’ because he found ‘humiliating and at odds with my dignity as a scholar … to beg those in government, as if it were a matter of collecting a stipend’. Letter from A. Cassese to C. Russo, 16 December 1992, ACA-7, at 14. In reality, Cassese asked Amato – then the prime minister – to approach the foreign minister (letter from A. Cassese to G. Amato, 19 September 1992, ACA-7, at 10), and he promptly informed him of the defeat, which came ‘despite your authoritative intervention’ (letter from A. Cassese to G. Amato, 18 January 1993, ACA-7, at 17); see also note 155 above.
A caveat seems appropriate here. Reading Cassese’s papers, one cannot help but notice that his setbacks are much better documented than his successes. This is probably because success came mainly when he had no need to pitch himself, and informal contacts to check his availability took place essentially by telephone. See, e.g., Weiler, ‘Nino – In His Own Words’, 22 EJIL (2011) 931, at 938–939.
A. Cassese, International Law (2001).
Letter from J. Crawford to A. Cassese, 21 February 2001, ACA-18, at 351.
Cassese, ‘Introduction’, in Cassese, Realizing Utopia, supra note 156, xvii, at xx.
A. Cassese, ‘Nella testa del Leviatano: guerra, diritti umani, giustizia internazionale. Conversazione con Giorgio Acquaviva’, manuscript annexed to email from A. Cassese to D. Bonato, 5 January 2011 (both on file with author).
Cassese, supra note 21, at 14–15.
Cassese, ‘Soliloquy’, supra note 25, at lxxvii–lxxviii.
See partially photocopied book or essay, ACA-16.
K. Löwith, Meaning in History: The Theological Implications of the Philosophy of History (1949), at 33–59.
Cassese, supra note 21, at 16, 231.
See photocopied materials, ACA-16.
Written by Stanley Milgram himself for Harper’s Magazine in 1974. Milgram, ‘The Perils of Obedience’, typed copy, ACA-16.
A. Cassese, International Law in a Divided World (1986), at 406–407.
Cassese, ‘Soliloquy’, supra note 25, at lxivii.
Ibid., at lxiviii.
Cassese, ‘Containing State Power: Utopia and Reality (Nuremberg, 24 September 1997)’, ACA-9, at 1–2 (typescript).
Cassese, ‘Soliloquy’, supra note 25, at lxxix.
Cassese, supra note 21, at 27.
Ibid., at 241–242.
Cassese, supra note 170, at 393.
Ibid., at 413.
Cassese, supra note 130, at 145.
Cassese, supra note 41, at lxxx.
Cassese, supra note 170, at 405.
Condorelli and Cassese, ‘Is Leviathan Still Holding Sway over International Dealings?’, in Cassese, Realizing Utopia, supra note 156, at 24 (emphasis omitted).
Cassese, supra note 41, at lxix. Cassese quotes M. Buber, Good and Evil: Two Interpretations (1997), at 94.
Cassese, supra note 161, at xxi.
Ibid., at xxii.
According to B.V.A. Röling, ‘[l]awyers have a special responsibility. … They are the experts who would recognize that present international law – measured according to its own values and goals – is bad law’. Röling, ‘Are Grotius’ Ideas Obsolete in an Expanded World?’, in H. Bull, B. Kingsbury and A. Roberts (eds), Hugo Grotius and International Relations (1990) 281, at 298. For Cassese, ‘bad law’ had in it the potential (the yeast) for a better law.
This is particularly clear in A. Cassese, Kafka è stato con me tutta la vita (2014), at 123–131.
Cassese, supra note 21, at 230.
Cassese, supra note 4, at 3.
Cassese, supra note 21, at 230.
For Cassese, the law was not identical to what it seemed to be at any given time but always on a line of flight, as it were. See letter from L. Henkin to A. Cassese, 22 February 1980, ACA-21, at 47 (‘I tend to say that the state of the law on compensation is uncertain; you may tend to think that it is (or is becoming) something like what’s in the Charter of Economic Rights and Duties of States, although the exact content is uncertain’).
Cassese, supra note 170, at 107 (emphasis in original).
E.P. Thompson, Whigs and Hunters: The Origin of the Black Act (1975), at 210. For a similar argument, see Röling, supra note 97, at x.
Thompson, supra note 193, at 205.
Ibid.
Cassese, supra note 170, at 2; see also letter from A. Cassese to E. Lauterpacht, 12 June 1982, annex, ACA-21, at 158 (emphasis in original).
Cassese, supra note 130, at 51, 102.
Cassese, ‘Gathering Up the Main Threads’, in Cassese, Realizing Utopia, supra note 156, 645, at 658.
Annex to the letter from A. Cassese to B.V.A. Röling, G. Abi-Saab, A. Eide, R. Falk and K. Hossain, 5 September 1983, ACA-26, at 2 (typescript, emphases omitted).
See letter from B.G. Ramcharan to A. Schimmelpenninck (A. Cassese copied), 1 June 1979, ACA-24, at 6–7; letter from A. Cassese to B.G. Ramcharan, 11 June 1979, ACA-24, at 8.
Annex to the letter from A. Cassese to B.V.A. Röling et al., supra note 199, at 1.
Letter from K. Hossain to A. Cassese, 10 November 1983, ACA-26.
Annex to the letter from A. Cassese to B.V.A. Röling et al., supra note 199, at 2.
Cassese wanted the journal ‘to stimulate the scholarly creativity of jurists and diplomats from the Third World and to act as a point of contact for them and between them and Western “progressive” scholars, so as gradually to create a widespread and solid network of like-minded jurists’ (ibid.).
Röling, supra note 97, at x.
Letter from A. Cassese to A.J. Rodríguez Carrión, 28 June 1983, ACA-24, at 56. Making the same claim, see also letter from A. Cassese to B.V.A. Röling, 4 November 1983 (on file with author).
Cassese and Weiler, ‘Preface’, in A. Cassese and J.H.H. Weiler (eds), Change and Stability in International Law-Making (1988) v, at v.
Cassese, supra note 170, at 121; see also Cassese, ‘Civil War and International Law’, in Cassese, ‘Soliloquy’, supra note 25, at 125 (criticizing Third World countries’ resistance to the expansion of international humanitarian law applicable to internal conflicts – the article originally appeared in 1986).
A. Cassese, Violence and Law in the Modern Age (1988), at 7.
Cassese, supra note 170, at 4.
Cassese, supra note 101, at 283.
Letter from R. Higgins to A. Cassese, 18 October 2002, ACA-20, at 84. Rosalyn Higgins was at the time judge at, and a former president of, the International Court of Justice. The article she complained about is Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’, 13 EJIL (2002) 853.
Oppenheim, supra note 3, at 334.
Cassese, supra note 1, at 259.
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging (STL-11-01/I/AC/R176bis), Appeals Chamber, 16 February 2011, para. 83.
Ibid.
Ibid., para. 87.
Ibid., paras 88–99.
Saul, ‘Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism’, 24 LJIL (2011) 677.
Interlocutory Decision, supra note 215, para. 100.
Ibid., para. 99.
Ibid., para. 106.
Ibid., para. 102.
Ibid., para. 109.
Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’, 18 EJIL (2007) 649, at 668.
Cassese, supra note 170, ch. 6.
Cassese, supra note 130, at 126.
Cassese, supra note 1, at 258–259. For a penetrating analysis of Cassese’s ‘critical positivism’, see Feichtner, ‘Realizing Utopia through the Practice of International Law’, 23 EJIL (2012) 1143.
Cassese, supra note 1, at 259.
Cassese ‘Diritto internazionale’, in L. Bonanate (ed.), Studi internazionali (1990) 113, at 141.
Ibid.
Compare Feichtner, supra note 228, at 1152–1157. In a masterful essay on the Martens clause, Cassese described the latter as ‘an ingenious blend of natural law and positivism’, a product of diplomatic guile turned by the cunning of reason into a principle of construction to be deployed in intractable cases. See Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’, 11 EJIL (2000) 187, at 189, 212, 216.
Cassese, supra note 1, at 272. This again resonates with Röling’s ‘egalitarian outlook’, holding ‘humanity as the central value … not value-oriented but man-oriented’. See letter from B.V.A. Röling to A. Cassese, 5 April 1978 (on file with author).
In a review of Cassese’s book on the Achille Lauro affair (see note 129 above), Yoram Dinstein wrote that the author was ‘guided by [a] personal set of values no less than by international law’, a ‘good lawyer’ but prone to give ‘free rein to his ideological inclinations ... typical of left-wing intellectuals’. Dinstein, ‘Terrorism, Politics and Law: The Achille Lauro Affair, by Antonio Cassese (Polity Press, 1989)’, 19 IsraelYearbook on Human Rights (1989) 403, at 403–404. Fourteen years later, Cassese responded in this way to an invitation to speak at a conference coming from Israel: ‘[F]or the key-note speech you should perhaps think of somebody more prestigious and free of any charge of bias (you may know that some years ago Yoram Dinstein wrote … a nasty review of one of my books … allud[ing] to my “bias”. I still think he was wrong; nevertheless, you may want to choose somebody who has not been so assailed by one of the leading Isr[ae]li international lawyers).’ See email from A. Cassese to Y. Shachar, 31 January 2003, ACA-24, at 153.
Cassese, ‘Soliloquy’, supra note 25, at lxxx.
Zappalà, ‘Personal Remarks on Antonio Cassese and His Vision of International Law and International Criminal Justice along the Road He Walked’, 25 LJIL (2012) 503, at 507, 509–510.
Cassese, ‘Soliloquy’, supra note 25, lxiv.
Ibid.
Letter from A. Cassese to V. Laterza, 21 February 1994, ACA-26.
Handwritten notes of the speech delivered upon Cassese’s resignation from the ICTY, ACA-8, at 2 (manuscript).
Weiler, ‘Antonio Cassese: Head in the Clouds, Feet on the Ground’, 23 EJIL (2012) 1031.