The Politics of International Law

I. The Flight from Politics

The Rule of Law seems to be the only thinkable principle of organization in a “system
whose units are assumed to serve no higher purpose that their own interests” such as
that of a modern-states system.

The essay problematized the politics involved in achieving international rule of law.

“The fight for an international Rule of Law is a fight against politics, understood as a
matter of subjective desire and leading into an international anarchy.”

II. The Content of the Rule of Law: Concreteness and Normativity

In order to achieve an international Rule of Law devoid of politics, two requisites must
be satisfied: 1) concreteness and 2) normativity.

Concreteness roots from the reality of subjectivity of values. “To avoid political
subjectivism and illegitimate constraint, we must base law on something concrete – on
the actual verifiable behavior, will and interest of the members of society-states.

Normativity requires that law should be applied regardless of political preferences of

legal subjects. It should be applicable even against a state which opposes application to
itself

The attainment of both is impossible. They cancel each other. Concreteness is an

argument about the closeness of a particular rule, principle or state practice. The closer
an argument to state practice is, the less normative it is. Normative would mean distance
from state will and practice, the more political it seems – it can be manipulated at will.

III. Doctrinal Structures

Two criticisms to international law:

1) Too political – highly dependent on states’ political power

2) Too political – founded on speculative utopias

There is the non-existence of legislative machineries, compulsory adjudication and

enforcement procedures. It has a character of being a façade of power politics, or on the
opposite extreme, just really distant from such and detached from realities

Doctrinal approaches to International Law:

1) Rules approach (normativity) – insists on an objective, formal test of pedigree which

would tell what would qualify as legal rules or not (problem: what constitutes the
 proper test; nothing but “naïve utopianism”: an unwarranted blief in the viability of
the Congress system; failed to keep up with the politics)
2) Policy approach (concreteness) – IL should be firmly based in the social context of
international policy; rules are based from trends of past decisions

IV. Substantive Structure

The “concreteness” perspective would see International Law’s substance as a

consequence of state sovereignty – a state’s libery to bind itself

A “normative” perspective would see International Law’s substance in reference to

power relations with other states.

A. Sovereignty

What are the character and normative consequences of statehood?

Two contrasting perspectives: 1) pure fact view and 2) legal view

Pure fact view: “sovereignty as basic in the sense that it is simply imposed upon the
law by the world of facts. Sovereignty and together with it a set of territorial rights
and duties are something external to the law, something the law must recognize, but
which it cannot control.” Example: sovereignty based on external recognition;
criticism: imperialistic in character

Legal view: Sovereignty as part of law’s substance, determined and constantly

determinable within the legal system. Example: sovereignty granted by law; criticism:
in most states, there is no definite legislative act to define the competence of a state
to act in particular ways

B. Sources

1) Bilateral and unilateral agreements among states are linked with their capacity to
reflect state will – there are issues of consent vis-à-vis power relations existing among
states (a state being subject to the will of more powerful states); there are also
policing issues as to when countries who propose and uphold unilateral agreements
are also the ones violating such or withdrawing compliance from such.

2) Customary law remains indeterminate because it is circular. It assumes behavior

to be the evidence of the states intentions (opinio juris) and the latter to be evidence
of what behavior is relevant as custom. There is no applicable criteria for
ascertaining the presence of the opinio juris. A high subjective and abstract source

V. The Politics of International Law

Modern International Law should be seen as an “elaborate framework for
deferring substantive resolution everywhere” – a framework whose concerns
may include the delimitation of sovereign powers and allocation of jurisdiction.

“The success of international law depends on this formality; this refusal to set
down determining rules or ready-made resolutions to future conflict.”

IL must be anchored on attempting to 1) provide communal life and 2)

safeguarding sovereignty among states. IL must be anchored on general
principles such as equity, independence, self-determination, etc.