.. - LAW AND THE CONCEPT OF LAW - BEYOND THE NATION-STATE

.. - LAW AND THE CONCEPT OF LAW - BEYOND THE NATION-STATE

LAW AND THE CONCEPT OF LAW - BEYOND THE NATION-STATE By: TALENE THOMAS IAN B.SC., B.A. A Thess Submtted to the School of Graduate Studes n Partal Fulflment of the Requrements for the Degree Master of Arts McMaster Unversty Copyrght by Talene Thomasan, June 2010

MASTER OF ARTS (2010) McMaster Unversty (Phlosophy) Hamlton, Ontaro TITLE: Law and the Concept of Law - Beyond the Naton-State AUTHOR: Talene Thomasan B.Sc. B.A. (McMaster Unversty) SUPERVISOR: Dr. Wl Waluchow NUMBER OF PAGES: v, 120 11

Abstract Analytc legal phlosophy has overwhelmngly based ts agenda and ts research upon the domestc law of naton-states, often at the expense of other canddates for ncluson under the concept of law. Internatonal law s one such canddate, the conceptualzaton of whch has typcally resulted n ether a breezy rejecton of ts status as 'law,' or a lukewarm acceptance based on ts smlartes to domestc law. But nether of these optons affords nternatonal law the careful scrutny such an mportant phenomenon deserves. Ths project ams to provde a small step n the drecton of such an analyss. It examnes the applcablty of the dstncton between 'law' and 'poltcs' at the nternatonal level, and n the process evaluates some promnent tradtonal theores of law. Two poles are presented wth respect to the presence of the poltcal and legal features of nternatonal law: at one end s an extreme legal realst poston that clams nternatonal law necessarly lapses nto poltcs, and at the other end, an extreme legal pluralst poston that unreflectvely accepts the legalty of nternatonal law. These two poles are examned and subsequently rejected, and a mddle path that acknowledges both features s sketched. A prma face case for understandng nternatonal law as 'law' s presented: the requrements of the 'legal system' are reduced and ts exstence decoupled from the state, whch provdes a baselne accordng to whch nternatonal and domestc law are smlar enough to unte under a sngle analytc concept. What ths suggeston does not do s judge nternatonal law accordng to domestc law as an deal type. Instead t vews domestc law as a stable form of law wth ts own contngent features, but the ntersecton of whch wth nternatonal law reveals mportant thngs about both, and the concept of law more broadly. It thus affrms the legalty of nternatonal law.

Acknowledgements I would lke to express thanks to the many people who were nstrumental n whatever success ths project acheved. Frst and foremost, thank you to my supervsor Dr. Wl Waluchow, for hs ongong gudance, accommodaton of what mght have began as phlosophcal tangents, and patent treatment of numerous drafts. Second, but equally, I am grateful to my second reader, Dr. Mchael Gudce, for more gudance and help than one expects from a reader. Hs advce, careful drecton and avalablty for all sorts of mnor questons were of mmeasurable help. Thanks also to many others n the McMaster phlosophy department, startng wth our ever capable and conscentous Char, Dr. Elsabeth Gedge. I am also grateful to the followng: Stefan Scaraffa and Mchael for two classes that were unquely valuable n ths project; the professors who set off many a lght bulb n a sometmes meanderng project, whether they were aware of t or not; and many of my fellow graduate students, for the dscussons n starwells and over caffenated procrastnaton, whch were of sometmes surprsngly relevant and enormous help. And fun. Thanks to the relevant famly and frends, some of whom mght even flp through ths, you wll probably know who you are, but maybe not, humble folk. that you are. Thanks to McMaster Unversty and the Socal Scences and Humantes Research Councl, for materal, and thus also psychologcal, support. IV

Table of Contents Chapter One: Introducng the Problem of Internatonal Law... 1 Chapter Two: Internatonal Law as Poltcs... :~.. 16 Chapter Three: Internatonal Law as Law... 45 Chapter Four: Methodology... 73 -, Chapter Fve: The Legal System and Internatonal Law............... 99 Concluson... 118 Bblography... 120 v

I I Chapter One: Introducng the Problem of Internatonal Law In pursung such nvestgatons t may turn out that muncpal systems. are not unque, that all ther essental features are shared by, say, ntematonallaw or by church law. If that s ndeed so, well and good. But t s not a requrement of adequacy of a legal theory that t should be so or ndeed that t should not be so. It s, however, a crteron of adequacr that the theory wll successfully llumnate the nature of muncpal systems. I. Analytc Legal Phlosophy and the Naton-State Ths quotaton by Joseph Raz, a leadng legal phlosopher, does much n the way of ntroducng the problems facng a conceptual understandng of nternatonal law (IL)? In the pursut of the unversal concept of the legal system, as dstngushed from other normatve systems, Raz admts to three assumptons underlyng hs work. Frst, law must meet a threshold of effcacy, due to the theory's commtment to the prmacy of socal realty over pure abstracton; second, the concept must be unversal, nsofar as t apples to all clear nstances of domestc legal systems, 3 and ncludes the necessary features common to them all; and thrd, as the abovementoned quotaton llustrates, domestc law s of prmary mportance n constructng such an account. 4 Ths unapologetc appeal to 1 Raz, Jospeh. The Authorty o/law. Toronto: Oxford Clarendon Press, 1979. Prnt. 105. 2 An mportant note: "nternatonal law" s the preferred term throughout ths work, but as t quckly becomes apparent, the focus s not lmted strctly to the laws that govern nteractons among naton-states, especally as ths project progresses. Modem termnology dstngushes between nternatonal, tratlsnatonal and goballaw; and such laws of a "super" scope relatve to the state are also a focus here. It must also be noted that "supernatonal" n ths work means all nstances of law "above and beyond" the state, n spte of what dfferent usages may appear elsewhere. 3 The term "domestc" wll be used throughout ths work to denote the law of natonstates, although the favoured term vares n the lterature. Raz and Hart, for example, Frefer "muncpal." Raz, 103-5. 1

the domestc legal system as the paradgmatc example around whch to construct one's concept goes even further, descrbng other forms of law, such as nternatonal or relgous, as ncdental to a successful account. From ths foundaton Raz developed a demandng set of crtera for legal systems, presentng a theory of legal systems both frmly rooted n antecedent theores, and nfluental n much of the analytc legal phlosophy that followed hm. 5 The specfcs of ths or anyone account are not the mmedate focus here. The emphass on domestc law, however, sometmes at the expense of other vable canddates worth nvestgatng, s. Legal phlosophy has tradtonally and overwhelmngly taken the domestc law of modem naton-states as paradgmatc of law. 6 It s a methodologcal commtment not unque to Raz, but as IL becomes ever more mportant n the modem world, t s one that must be reevaluated. Ths project begns wth the contenton that IL s too mportant a legal phenomenon (or collecton of phenomena) to be dsmssed so easly, and that the shortcomngs n the tradtonal analytc concepts of law n characterzng t are an mportant alert to the need to reevaluate the domnant concept. Ths reconsderaton ncludes not only of the content of the concept, but also ts contours, for example, the 5 Brefly, legal systems, unlke other normatve nsttutons, must dsplay some degree of comprehensveness, supremacy and opermess, and must reserve the ablty to clam these features, even f they do not do so n practce (bd. 115-120). Ths topc wll be addressed n greater detal n chapter fve. 6 Hans Kelsen s a notable excepton. He argued that the unfed nature of law means that t can be vewed from ether a state or nternatonal perspectve - for example, the valdty of law mght derve ts valdty from the Basc Norm of IL. But ths s obvously a far cry from recognzng IL as a potentally unque form of law. See General Theory of Law and State and Pure Theory of Law. 2

I 1 I unversalty of any such concept. Wthout yet enterng nto what features are central (f not necessary) to 'law,,7 t s mportant to observe that there s much debate about what t denotes, and that ths dffculty s amplfed at the yet more ndefnte nternatonal level. For example, some conservatve efforts admt publc nternatonal law as law because t s reasonably analogous to state-based law. s Yet theorsts such as Wllam Twnng nssts that just as non-state norms cannot be subsumed under tradtonal legal frameworks, "To try and subsume European Unon Law or lex mercatora or nternatonal commercal arbtraton or all examples of 'human rghts law' under publc nternatonal law smlarly stretches that concept to breakng pont, wthout any correspondng gans."g Keth Culver and Mchael Gudce present cogent descrptons of the serous dlemmas surroundng novel legal phenomena, at what they call the ntra-state, trans-state, supra-state and superstate levels, and n the nadequaces of the descrptons provded by tradtonal state-based theores of law. to For example, the shared governance dsplayed by the Canadan government and varous Frst Natons bodes recognzes the autonomy of the latter, whle remanng wthn Canadan borders. The complexty of the stuaton ressts smple 7 Followng standard practce, "law" denotes the word, 'law' denotes the concept, and the absence of any marks denotes the socal phenomenon as t exsts n the world. S The dstncton between publc and prvate law appears often n ths debate, especally wth respect to the dstncton between the legal and the poltcal. Publc law governs relatons among the state and ndvdual agents (ex. the crmnal law). Publc nternatonal law governs relatons among states, and sometmes between states fu"ld ndvdual agents. Prvate law governs relatons among ndvdual agents (ex. contract law). Prvate nternatonal law, or conflct of laws, governs the relatons of ndvdual agents, but n nternatonal cases must also decde whch sets of conflctng laws are to preval. 9 Twnng, Wllam. General Jursprudence: Understandng Law from a Global Perspectve. New York: Cambrdge Unversty Press, 2009. Prnt. (henceforth "GJ"). 363. 10 Culver, Keth and Mcheal Gudce. Legalty's Borders: An Essay n General Jursprudence. Toronto: Oxford Unversty Press, 2010. Prnt. xv-xxv. 3

j I I explanatons of allocaton of power by the superor federal government. Whle ths example falls outsde the scope of the nternatonal and related supernatonal laws of ths project, t remans a helpful llustraton that a growng contngent of legal phlosophers and theorsts argue that too great a relance on famlar models runs the rsk of dstortng the phenomena. Whether IL s to be properly understood as a type of law, how t s to be ncorporated nto theores of 'law,' and whether tradtonal models are equpped to complete the task, are nqures that wll be addressed n due tme. Ths nvestgaton wll address the applcablty of exstng analytc legal theores n capturng and understandng the nature of IL. More specfcally, t wll address the ablty of such theores to explan the dstncton between the legal and the poltcal at the ntematonallevel, f such a dstncton ndeed exsts. There s lttle conceptual work n the lterature avalable to draw upon regardng IL, but the work of three promnent theorsts, Hart, Koskennem and Wel, and also the Legal Pluralsts, each wth starkly dfferent vews and representatve of wder theoretcal approaches, offer a promsng foundaton for ths nvestgaton. II. Exstng Paradgms A. H.L.A. Hart: Internatonal Laws, but not an Internatonal Legal System H.L.A. Hart was an Englsh lawyer and phlosopher who revtalzed Anglophone analytc legal phlosophyy Wrtng n the md-20 th century, Hart dened that IL 11 Hart, H.L.A. The. Concept of Law. 2 nd Edton. Toronto: Oxford Clarendon Press, 1994. Prnt. 79-110. (henceforth "COL"). Hart's work remans a foundaton, albet tnkered wth, for much of analytc jursprudence and n the largely domnant Legal Postvst tradton. Lookng at The Concept of Law provdes a suffcent ntroducton nto hs theory, whch took domestc law as the 4

consttuted a legal system, whle defendng the exstence of nternatonal laws. He was, however, open to the possblty that IL could develop nto a system of law. 12 The ttle of hs nfluental bookthe Concept of Law (1961) notwthstandng, Hart provded a theory of legal systems; the unon of prmary and secondary rules that n part dentfes a legal system,13 he was clear, s not suffcent or even necessary for law. Representatve of hs project, he explans: It s because we make no such clam to dentfy or regulate n ths way the use of words lke 'law' or 'legal', that ths book s offered as an elucdaton of the concept of law, rather than a defnton of 'law' whch mght naturally be expected to provde a rule or rules for the use of these expressons. 14 Hart was thus not nterested n a unversal defnton of law, the lowest common denomnator that would allow hm to collect all nstances of law under one headng, but nstead strove for the theoretcal understandng that came wth a concept of law, focusng on the legal system n partcular. Even as he noted some of the common concerns regardng the status of IL, such as the lack of a central legslature, courts wth compulsory jursdcton and centrally organzed sanctons - a lack of secondary rules generally - he paradgmatc case from whch to dstll the central features of 'law.' Hs formulaton of Legal Postvsm s based on two man theses: the Separaton Thess, whch asserts that law and moralty need not ntersect, and the Socal Thess, whch asserts that law s a socal fact 12 bd. See Chapter X. 13 Legal systems occur once prmary rues, regardng dema.llds on behavour, are renforced wth secondary rules, whch allow for the dentfcaton, alteraton and adjudcaton of the rules of the system. The Rule of Recognton, the ultmate secondary rule, dentfes the system wthout relance on any other rules. Addtonally, only offcals need actvely accept the valdty of the system (.e. take "the nternal pont of vew") and dentfy t through secondary rules, although general obedence among the populaton s necessary for the exstence of law (bd. 116-117). 14 bd. 213. 5

acknowledged the many prmary rules of nternatonal governance. 15 In fact, he lkened IL to prmtve legal orders. But just as one cannot exclude IL by llegtmately prvlegng secondary rules, nether can one assert the legalty of IL by pontng to common usage of the term, as f the word tself, rather than the concept, were n queston. Both optons settle a complex queston too hastly. The absence of a Rule of Recognton especally among the secondary rules, warrants specal attenton. 16 The valdty or "bndng force" of laws, Hart explans, s separate from the unfyng and dentfyng role of a Rule of Recognton, makng t a "luxury" of advanced legal systems, provdng clarty and stablty, but one that s not necessary for the exstence of laws. Hart answers ths one emprcal queston wth certanty:... but t s submtted that there s no basc rule provdng general crtera of valdty for the rules of nternatonal law, and that the rules whch are n fact operatve consttute not a system but a set of rules, among whch are the rules provdng for the bndng force of treates. 17 Hart thus clams that IL does not have a Rule of Recognton; IL s not unfed n any meanngful way. IL, s, however smlar to domestc law njuncton and content, nsofar as ts laws provde nstructon and nvests some wth normatve power n smlar ways, but t s unlke domestc law nform, snce t lacks the unty of a system. 18 15 bd. 214-6. 16 bd. 232-7. 17 bd. 236. 18 bd. 237. 6

B. Prosper Wel: The Relatve Normatvty of Internatonal Law Prosper Wel, a French lawyer, academc and legal offcal, argued that by the 1980's, IL was losg ts once robust clam to the ttle 'law.' The apparent defcences that IL suffered from that so worred other theorsts were dstractons for Wel, for the real ssue was not the "undeveloped" state of IL, but that ts ncreasngly herarchcal structure was erodng ts ablty to perform ts prmary functon. For Wel, IL must functon to facltate nternatonal relatons among equal partes. 19 Although Wel acknowledged the many structural defcences of IL already wdely noted, especally n contrast to domestc law, he stressed that was not a mark of nadequacy. IL often has unsystematc norms, and sometmes neffectual, or even absent, sanctons, "whch, of course, does not mean that t s nferor or less 'legal' than they [domestc law]: t s just dfferent.,,20 The problem, Wel argued, s that IL has endured n ths form for centures, ever snce the rse of naton-states, but ncreasng power mbalances render IL ncapable of fulfllng ts "dual functon" of contrbutng to the coexstence of states and ther pursut of "common ams." IL can survve n spte of a flawed structure, but not a faled functon. IL must meet three requrements f t s to contnue to govern soveregn states to ther beneft: t must be voluntarly adopted, to mantan the autonomy of states; t must be secular and neutral, so as not to mpose partcular deologes; and t must recognze t..he 19 Wel, Prosper. "Towards Relatve Normatvty n Internatonal Law." The Amercan Journal of Internatonal Law. 413.3 (1983): 413-442. Web. 413. 20 bd. 414-5. 7

postvst dstncton between the law as t s and as t mght be?1 But Wel argued that, ncreasngly, norms were beng modfed nto "supernorms" - norms consdered too mportanrto leave up to state voluntarsm. Ths was n contrast to the typcally consensual norms of IL, and the prenormatve norms that are unoffcal but potentally weghty (sometmes referred to as "soft law"). As can be expected, the demands of powerful states often motvated the content of these transformed norms?2 Furthermore, as the consensual nature of many norms were overrdden n the name of moral progress, the general and loosely enforced nature of many such norms were smultaneously made to be unversal n nature?3 Often n the form of jus cogens, or peremptory norms, they do not permt derogaton, and deal wth ssues such as genocde and slavery, whch are consdered n force even n the absence of consent by states. Even f the results seemed benefcal, Wel argued that nstablty and vagueness prolferated as the dvsons between norms developed, n part because the dvsons are n practce dffcult to determne. Wel nssted that the results are grave, and that ultmately, ths relatvzaton of IL leads to ts own undong. It s worth notng that ths path towards unfcaton, especally n the absence of a strong central governng body, need not be morally repugnant, and can offer the many benefts of systemzaton, but the rsks assocated wth legal mperalsm were too great for Wel. 21 bd. 420-424. 22 bd. 425, 427. 23 bd. 433-8. 8

I C. Martt Koskennem: Internatonal Law and Internatonal Poltcs Martt Koskennem, a Fnnsh nternatonal lawyer and dplomat, departed from theorsts who grappled wth the contngences of IL, to clam that IL s ncapable of beng law. 24 Representng a Legal Realst 25 perspectve, he argued, wth wdespread nfluence, that IL s necessarly a poltcal framework, where poltcs s loosely equated wth j I! dscreton. Koskennem argued that as a matter of hstorcal development n modern secular democratc states, coupled wth the ongong desre to obtan objectvty n matters of governance, law s defned by the pursut of the Rule of Law?6 Ths objectvty and stablty can only be acheved f the law s smultaneously concrete, that s, rooted n socal behavour, and normatve, that s, removed from actual behavour. But n the case of IL, those requrements cannot both be met, because of the unque nature of natonstates as both the authors and subjects of nternatonal law. Law authored by and appled to states does not leave the requste space between actual and prescrbed behavour. As a result, decsons to settle conflcts necessarly turn to poltcal prncples rather than rules. The upshot s that no state behavour can be genunely constraned by laws and there s no unquely correct soluton to any dlemma. If behavour s concrete but lacks normatvty, t s apologst. If t dsplays normatvty wthout beng rooted n concrete behavour, t s utopan. Any attempts to defend the legalty of IL through vaious theores, Koskennem 24 Koskennem, Martt. "The Poltcs of Internatonal Law." The European Journal of Internatonal Law. 1.1 (1990): 4-32. Web. (henceforth "PIL"). 25 Legal Realsm asserts the ndetermnacy of the law. It often contends that the apparent rules of a system hde the poltcal nature of legal decsons. 26 Koskennem, PIL, 4-10. 9

I, clamed, reduce nto these poles, or are otherwse ncoherent combnatons. 27 He made a further clam as well, that the decsons among theores are themselves poltcal, such that the havoc of dscreton occurs at two separate levels n the search for a theory of IL as law. 28 Koskennem thus categorcally denes the legalty of IL. I 1 D. Legal Pluralsm Legal Pluralsm asserts that multple legal spheres can coexst wthn a socal boundary?9 Its many versons, to varyng degrees, open up 'law' to nclude phenomena not typcally assocated wth the concept. It has frequently and easly embraced IL, and so deserves a place n ths survey, even though ts academc lneage s atypcal for such a project. Pluralsm arose n the socal scences, and especally the legal anthropology tradton. It clamed exclusve descrptve accuracy through ts rejecton of the western academc domnon, and often at least mplctly fought ethnocentrsm. 3D As a result of decades of studyng a varety of socetes, such as the "legal" systems of ndgenous peoples,31 to colonal and later postcolonal socetes where European law was transposed 27 bd. 13-27. 28 bd. 12-3. 29 The termnology vares but ths s the man dea. For example, Merry refers to socal "spheres" and Grffths to socal "felds." Merry, SaUy Engle. "Legal Plurasm," Law and Socety Revew. 22.5 (1988): 869-896. Web. 870, 879. See also, Grffths, John. "What s Legal Pluralsm?" Journal of Legal Pluralsm and Unoffcal Law." 24 (1986): 1-55. Web. l. 3D Tamanaha, Bran. "The Folly of the 'Socal Scentfc' Concept of Legal Pluralsm." Journal of Law and Socety. 20.2 (1993): 192-217. Web. (henceforth "Folly")~ 31 See Bronslaw Malnowsk's unfortunately named, Crme and Custom n a Savage Socety. (1926). 10

1 M.A. Thess - T. Thomasan onto exstng ndgenous norms,32 anthropologsts were often eager to expand the referent of 'law' to nclude what were often found to be rch and effectve normatve systems. Furthermore, when numerous such systems coexsted, each mght have had ts own role and supremacy by anyone system was elusve. 33 There has been, however, nternal debate among pluralsts regardng the desrablty of keepng 'law' as a concept dstnct from other normatve systems, and that debate s one ths project s concerned wth. 34 One man goal of the school s relevant here: the rejecton of the centralty of the state, ether as the sole, or even predomnant, form of socal orderng. 35 If an overly strct emphass on the state seems lke a rather extreme vew, t s one that has been defended even recently.36 Today Legal Pluralsm has expanded to deal wth ssues among many domnant and secondary groups, but the state remans an undenably mportant aspect of the law that must be explaned. It s a popular framework for many academc lawyers, 32 The Brtsh Empre, for example, was content to ncorporate ndgenous law nto the law of partcular colones, so long as t dd not cross the "repugnancy prncple." The Colonal Laws Valdty Act (1865) stated, "Any colonal law, whch s or shall be repugnant to the provsons of any Act of Parlament extendng to the colony to whch such law may relate, or repugnant to any order or regulaton made under authorty of such Act of Parlament, or havng n the colony the force or effect of such Act, shall be read subject to such Act, order or regulaton, and shall, to the extent of repugnant, but not otherwse, be and reman absolutely vod and noperatve." (Secton II). 33 Talk of "systems" s potentally msleadng, but t accurate to say that pluralsm denes that all can be subsumed under one system. 34 Most, such as Sally Falk Moore, mantan that the dstncton s requred for analytc accuracy. See Tamana.ha, Bran. "Understandng Legal Pluralsm: Past to Present, Loca to Goba." Sydney Law Revew. 30.375 (2008): 375-411. Web. ("ULP" hereafter). Merry mantans the dstncton for accuracy of analyss as well (878). 35 Grffths, 3. Grffth takes am at theores where "law s an exclusve, systematc and unfed herarchcal orderng of normatve propostons" and ctes both Kelsen and Hart as examples. 36 See Roberts, Smon. "After Government? On Representng Law Wthout the State." The Modern Law Revew. 68:1 (2005): 1-24. Web. 11

who take a largely emprcal perspectve wth regards to the changng and novel forms of law; they deal wth phenomena that are relevant to legal nsttutons, and are quck to accommodate much of them, wthout much loyalty to prevalng theores. The effects on IL theory are great. Paul Schff Berman argues that the "hybrd legal spaces" cannot be I defned away by nsstng on a commtment to soveregnty classcally understood, or a "unversalst" approach that demands unformty and herarchy n IL. 37 Sources of IL nclude naton-states, but also other nontradtonal sources, such as corporatons, and yeld rules of uncertan legal status. 38 What sets the pluralsts workng wth IL apart for the purposes of ths project s ther wllngness to accept nontradtonal canddates as law, and ther rejecton of the belef that there exsts a sngle form law must and does take, and wth that abandon the tradtonal emphass on herarchy and sngular legal valdty. III. Questons that Arse These accounts provde very dfferent, but also nstructve, questons wth whch to begn a phlosophcal nvestgaton nto the nature of ntematonallaw. The four vews covered are n a loose sense exhaustve: IL as not yet properly law, or IL as formerly properly law; IL as a necessarly poltcal endeavour that cannot truly be 'law,' or IL as one legal form among many, and for some, necessarly a legal phenomenon. A bref overvew of some of the ssues that arse s approprate here. 37 Berman, Paul Schff. "Global Legal Pluralsm." Prnceton Law and Publc Affars. 8:1 (2007). 1155-1238. Web. 1159-1165. 38 Pluralsts are not alone n uncertanty regardng the utlty of concepts such as "soft law" or "quas-law," for whch defntons do not shed much more lght than ther face values. 12

Hart was ambvalent about the status of IL. He found t to be, at the tme of wrtng, n an undeveloped state, lackng unfcaton, but wth the potental to develop the secondary rules necessary to consttute a legal system. Nevertheless, he thought t smlar enough (n functon and content, though not n form) to domestc law that comparsons I 1 were nstructve. In contrast, Wel presented IL as an ncreasngly subverted system; IL was losng ts ablty to promote cooperatve and equally benefcal relatons among states. As norms develop nto 'supernorms,' they both abandon the consensual element requred of all states, and the states wth dsproportonate power enforce ther hegemonc rule over the rest, such that the hstorc roots and ntended functon of IL cannot be met. Hart and Wel are n one sense at odds: the condtons that led Hart to deny that an nternatonal legal system exsts, are the same condtons that for Wel presented the bygone era of a true nternatonal legal system. The exstence of the herarchy and strct organzaton that Hart thought was necessary, but lackng, for a legal system, was precsely what Wel, wrtng two decades later, thought was the undong of IL. But ther work may n fact be compatble, and wth llumnatng results. Wel s not aganst herarchy and unfcaton per se, but the non-consensual way n whch t has proceeded, and admts the benefts such systematzaton offers. The nstablty and domnon over soveregn states that he s concerned about may not result f the herarchy that Hart consders comes n a consensually-founded a..nd nsttutonally-adjudcated manner. There s certanly a lve queston regardng the role of organzaton nto a system n ensurng that IL performs ts ntended functon. Another dlemma s the legal nature of IL n relaton to ts poltcal elements. 13

I Koskennem thnks nternatonal "law" s a msleadng characterzaton that dstracts one from ts essentally poltcal nature. The unque nature of nteractons among soveregn states, based on the commtments expressed to the deal of the Rule of Law, have not been, and cannot be anythng but, poltcal n nature. It exsts n stark contrast to a I pluralst perspectve, not attrbuted to any sngle theorst here, wth ts roots n the anthropology tradton. Pluralsm n some form appears frequently n the lterature today, wth varyng degrees of phlosophcal mert. It abandons the naton-state paradgm, and sometmes even abandons other apparent hallmarks of law, such as nsttutons. Here another debate arses: whereas for Koskennem the poltcal aspect domnates IL, such that ts legal aspect s but a myth, pluralsts reject the narrow assumptons that underpn accounts such as Koskennem's, so that they can easly accept many dfferent nstances of normatve power as law. It s the objectve of ths project to nvestgate, f, and how, the dstncton between the legal and the poltcal apples at the nternatonal level. The emphass wll be on the debate that arses between Koskennem's realst vew and Tamanaha's pluralst vew. Ths project wll not address the contrastng theores of Hart and Wel, ether the queston of ther compatblty or ther ndvdual degrees of applcablty, although t wll draw upon ther work when approprate. Ths s n the nterest of space, but also because of the especally pressng queston of the poltcal nature of IL at present. The realst and pluralst postons are often temptng and enjoy current popularty, and whle the drvng queston here s a conceptual one, the debate between ther vews also has practcal consequences. What s consdered law, as opposed to poltcs or socal norms, can 14

nfluence real world decsons. The workng hypothess n ths nvestgaton s that IL s law, and that t can be dstngushed from poltcs. There are two mmedately chartable reasons for dong so. Frst, IL s called law, and so warrants prelmnary beneft of the doubt, even as Hart's warnng to not confuse proper names wth concepts remans fresh. Second, 'legal' and 1! 'poltcal,' however ndetermnate the concepts may be, have been useful thus far at the domestc level. Ths also offers a reason to be wary of prematurely abandonng ether concept at the nternatonal level. Hypotheses, however, can only take one so far, and the ffth chapter puts forth an argument for ncludng IL under a concept of law. A contnuum of the presence and the relatve domnance of ether law or poltcs at the nternatonal level wll be nvestgated. At one end, IL s entrely reducble to poltcs. At the other, t s fully legal. Varous ntermedary postons exst between those two poles. Chapter two addresses the nadequaces of Koskennem' s argument for the necessarly poltcal nature of IL; although some nstances of IL are poltcal n ther creaton or applcaton, as a conceptual clam, Koskennem's vew s unsustanable. Chapter three addresses the shortcomngs of pluralsm n varous guses, notably n the work of Bran Tamanaha who s nspred by ther work. Chapter four presents a methodologcal stance, the product of havng assessed the defcences and strengths of the realst and pluralst postons, and lays the foundaton for the fnal chapter. The ffth and fnal chapter wll suggest a revsed path that breaks wth the prevalng emphass on domestc law, and argues that decouplng the 'legal system' from the naton-state allows legal phlosophy to accommodate IL. 15

I I Chapter Two: Internatonal Law as Poltcs The prevous chapter dealt wth four promnent theores of IL wth whch to begn ths project. None, however, are completely satsfactory n ther portrayal of IL, and t s '" the goal of ths chapter to nvestgate the work of Martt Koskennem, who represents a legal realst nterpretaton that IL s reducble to poltcs, and s therefore not law. I 1 Koskennem's poston forms one pole of a contnuum that s skeptcal of the legalty of IL. The chapter begns wth a detaled exposton of hs theory, advances two central objectons aganst t, and ends wth an affrmaton of the nsghts that reman. Although refutng Koskennem' s argument alone s not suffcent to dsprove the possblty that IL s essentally poltcal, hs argument s hghly-regarded and nfluental among nternatonal lawyers, but also extreme n ts embrace of the realst poston. It s therefore taken to be farly representatve of the poston that IL s really just poltcs, an argument ths project ams to prove erroneous. I. Koskennem and the Retreat nto Poltcs A. The Requrements for Law Koskennem defends a legal realst poston, argung that IL necessarly reduces to poltcs, and he draws on numerous nternatonal cases to llustrate hs clams. On hs vew, t s a mscharacterzaton to even call IL "law." The man source used here s hs 1990 artcle, "The Poltcs of Internatonal Law.,,39 39 It s necessary to note the exstence of the follow-up artcle: Koskennem, Martt. "The Poltcs of Internatonal Law - 20 Years Later." The European Journal of Internatonal Law. 20.1 (2009) 7-19. Web. Two mportant ponts arse n that work. Frst, the "crtcal" ven of hs work, f mplct n the frst artcle, s explctly stated n the more recent artcle. In t, he s clear that the 16

I I, Of the many ways to dstngush the legal from the non-legal, the dstncton from the poltcal s especally mportant, and Koskennem frames t hstorcally. The development of IL n Europe arose from a desre to mplement the Rule of Law;"as based j, 1 on Enlghtenment-era prncples. 4o The ntersecton of lberal theory and the Rule of Law s based on the belef n the subjectve nature of value. Modem lberal theory rejected natural, dscoverable prncples of governance, ncludng vrtues such as justce. Nothng was consdered mmutable. Subsequently, appeals to natural herarches became unvable, renderng all ndvduals free and equal, and the Rule of Law was determned to be the only approprate form of governance to safeguard these new values. Wthout the Rule of Law, along wth freedom and equalty as governng prncples, governance would fall nto poltcs, a scramble to prvlege one's own SUbjectve preferences. As ths framework unfolded at the domestc level, t was extended to the nternatonal level. Thus, legal solutons were deemed necessary to provde objectvty and neutralty towards the varable and sometmes competng values, and even whms, of ndvdual and otherwse autonomous states. Ths framework stll defines modem nternatonal relatons - amd the "ndetermnacy" of IL s at the heart of hs "sceptsm" (7-19). Second, he expresses support for hs orgnal poston, such that relance on a poston that predates serous changes on the nternatonal scene remans a far characterzaton. In short, he mantans hs stance regardng the ndetermnate and nevtably poltcal (Le. dscretonary) nature of nternatonal governance, and the nadequacy of doctrnes that attempt to descrbe the phenomena n legal terms, but adds an analyss of the strkngly predctable and poltcally drven decsons that are found across nternatona nsttutons. Even though he fnds the dscusson of 'soveregn states' obsolete, and has now shfted to new legal "vocabulares" for the relevant nsttutons, the worrsome malleablty of IL remans n much the same form. Ths project mantans the state-based termnology due to ease. Much of Koskennem's addtonal analyss s practcal, not conceptual, n nature, whch does not concern ths project drectly, and so the emphass wll reman on the orgnal artcle. 40 Koskennem, PIL, 4-7. 17

1 changes to IL n the last few hundred years, commtment to the Rule of Law as an deal has remaned, and the falure to acheve t has been blamed on practcal shortcomngs., Contrary to such optmstc nterpretatons, Koskennem clams that nternatonal relatons cannot defer to legal rules n the hope of attanng the Rule of Law, because nternatonal conflcts can only be solved by poltcal, dscretonary means. But rhetorc 1 obscures the fact that these decsons must turn to contested poltcal (and ndrectly moral) prncples. It s not smply that the nternatonal Rule of Law as an deal requres stronger commtment or effort on the part of partcpants and governng bodes, or that ts practcal role s llusory, but that t s unattanable as a legal structure. The specfcs of the argument requre close attenton. It s based on the clam that IL can only be law, that s, dstnct from poltcs n the face of competng, subjectve preferences, f t smultaneously satsfes two condtons: "concreteness" and "normatvty.,,41 Concreteness s a consttutve aspect of law; because law s a socally constructed nsttuton, law must reflect the actual socal patterns from whch t arses. The many competng values of states, and the resultant "behavour, wll and nterest," consttutes law, rather than appeals to the supposedly mmutable and unversal prncples of natural justce. 42 There cannot be a sngle correct normatve system, because any canddate would just be the prortzaton of partcular subjectve value systems at the expense of others, so law does not have a sngle format to aspre to. The upshot s that because there s no sngle correct law to model tself after, law must be what t n fact s. Concreteness thus stresses law as a factual constructon, wthout recourse to an abstract 41 bd. 6-10. 42 'b'd 7 l l 18

deal of what law should be. For example, f states come together and pass a law protectng human rghts and prohbtng torture, Koskennem's analyss would clam that the new law reflects what they already ntended to do, and the law s the result of what they n fact do. The law cannot clam any lnk to an deal of law, only the socal realty n whch t s based - otherwse, t s just wshful thnkng. In contrast, normatvty I prescrbes behavour, and consttutes law's gudance functon; law must be dstnct from what states actually do, or ther "behavour, wll, or nterest.,,43 It must dffer from what states do, or would do, f allowed to pursue ther ends freely. It demands that laws be appled whatever the fleetng preferences of, or even prncples developed by, states are. To return to the example of a law protectng human rghts and prohbtng torture, the analyss on behalf of the normatvty requrement would nsst that there be space between what the law s as a matter of state acton, and what the law demands, otherwse, t does not provde gudance. If there s an effectve law n place, that space s absent. The law cannot, accordng to the normatvty requrement, smply be what the state does. It s apparent that for Koskennem, concreteness and normatvty are fundamentally at odds. When law s concrete, the more descrptve t s and ted to a state's actual poltcal actons, so that t becomes "apologst." But when normatve, t s separate from "state wll and practce" and becomes "utopan." Indeed, these two poles do appear to represent stuatons where the socal nteracton s not law-governed. If a law merely reflects what states do, t s superfluous. If a law makes behavoural demands but 43 bd.7-8. 19

cannot admt convergence wth behavour, t s smlarly superfluous. It s temptng to admt that n.. seems to lapse nto poltcs., What makes ths crtcsm partcular to IL, as opposed to state law, s that the partes nvolved, soveregn natons, are both the authors and subjects of the law. Ths I I places them n a unque poston wth respect to the goal of n.., that of provdng stablty and certanty n matters of gudance and conflct. Due to ts lack of power compared to these states, whch create t,ll remans subordnate, and thus s dependent on the actons of the state, whether that acton s concrete or normatve. The key s that the decsons regardng n.. depend on the decsons of the states. By way of contrast, a ctzen of a state does not have the same power n a domestc legal system, because he or she s subject to the law, but not ts author - there s an authorty wth the machnery to create and enforce ts laws. n.., however, lacks the substantve machnery necessary to transcend states' wll, makng IL vulnerable to ether the thnly veled poltcal preferences, or the easly gnored moral aspratons, of states. The upshot, accordng Koskennem, s that nether opton, apologst or utopan, reles on laws, and struggles must resort to poltcal arbtraton. The nature of Koskennem's characterzaton s, t must be noted, a very external one. For concreteness, socal facts are based on externally observable unts, prmarly behavour. Smlarly, the characterzaton of normatvty makes no menton of the 'ought' that s customarly used to descrbe ts guda.nce functon, a.lld focuses only on t.lj.e dstance between what s demanded and what s done. But the two requrements do appear to be legtmate demands, the absence of whch s problematc. 20

B. The Doctrnal Level- The Constructon of a Concept The poltcal aspect of IL has long snce been acknowledged by ts defenders, and Koskennem dvdes defences nto what fe clams are four exhaustve and mutually exclusve types. The "skeptcal" and "dealst" postons smply avod the challenge, by denyng the exstence of the problem or denyng the nadequacy of the solutons offered,! respectvely. Responses that actually address the problem, n Koskennem's vew, come n two forms. 44 The frst, the 'rule approach,' arose n drect response to excessve state autonomy n the face of attempts at a robust IL, and stressed normatvty. It demanded formal pedgree tests unattached to actual states' consent to dentfy applcable laws. The second, the 'polcy approach,' grew from crtcsms of the folmer, clamng that the poltcal element cannot be removed, and t nstead advocated basng IL on actual socal processes. But ths emphass reduced IL to a descrptve enterprse. Modem attempts to chart a mddle ground wth pragmatc compromses between these approaches are quckly dsmssed by Koskennem as obvously untenable. Thus, whle both approaches attempted to tease apart law and poltcal behavour, the choce between approaches, regardng whch best dstngushes law from poltcs, ultmately comes down to a poltcal decson tself. He explans: The dffculty n choosng between a rule and a polcy approach s the dffculty of defendng the set of crtera put forward to dsentangle "law" from other aspects of state behavour... To decde on the better approach, one would have to base oneself on some non-descrptve (non-socal) theory about sgnfcance or about the relatve justce of the types of law rendered by the two - or any alternatve - matrces [emphass added]. Such a decson would, under the socal concepton of law and the prncple of the subjectvty of 44 bd. 10-13. 21

value, be one whch would seem to have no clam for objectve correctness at all. It would be a poltcal decson [emphass added]. 45 Thus the dscretonary nature of IL s found at two dstnct levels: one, at the level of ndvdual poltcal decsons and actons themselves, and two, also at the metatheoretcal level of the "choosng" an approach to, or concept of, IL. It s the dfference between dscreton regardng laws and regardng 'law.' The latter form, as t descrbed n the abovementoned quotaton, conssts of choosng between the rule and the polcy approaches, and to call ether law, requres a poltcal decson. C. The Substantve Level - The Content of a Concept Furthermore, Koskennem clams that the recurrng problems n legal argumentaton at the nternatonal level all repeat the pattern of the rreconclablty between the concrete and the normatve. The conflct between the two requrements s manfest n the two ways of explanng the orgn of laws' content. 46 The frst s that the content s based on the soveregnty of the state. Ths soveregnty requres that the state be autonomous n the creaton of self-applyng nternatonal norms unless there already exst norms constranng ts behavour (encapsulated n the Lotus prncple 47 ). In ths nterpretaton, nternatonal laws come about f the soveregn state allows them, and they exst as a matter of socal fact. Ths presents the orgn of laws' content as concrete. In contrast, the second nterpretaton vews states as powerful agents, capable of actng n conflct wth laws. Because they can serve as sources of acton contrary to prevalng 45 bd. 12-3. 46 bd. 13-4. 47 The Lotus Prncple, named after The Lotus Case (1927 Turkey v France PCIJ), states that soveregn states can act freely so long as they do not dsobey exstng nternatonal laws. 22

socal patterns, ths hghlghts the normatve nature of the orgn of laws' content. The problem of the supposed fundamental ncompatblty between normatvty and, concreteness, (and the-resultant need to make a poltcal choce between the two, and the theores that support one or the other), the foundaton for Koskennem's clams aganst IL, s therefore revealed through the content of law. Standard formulatons ether start by descrbng the state as foundatonal to the structure of IL ("realst" doctrnes) or by startng wth the sources of IL, from whch the content follows ("dealst" doctrnes). But n realty the dvson fades, because n practce they rely on each other for justfcaton, and ultmately "provde dentcal substantve systems." Although recent turns towards a pragmatc approach balancng both vews provde not lmjust resolutons to conflcts, the ssue at stake s whether poltcs, and not law, decdes cases. The frst opton s to appeal to soveregnty, where states are autonomous and legslate self-applyng norms, whch supports ts concrete, socal nature. 48 Soveregnty tself s ether vewed as a 'pure fact,' ndependent and external to the law, or takes the 'legal vew' where soveregnty s nternal to the law. 49 Yet Koskennem's nvestgaton of case law reveals that soveregnty s smultaneously external and nternal to the law. Laws can be nsuffcent, as when they "run out" and states have the power to legslate by default. Yet the ndetermnacy of many laws also makes ther gudance largely superfluous, and snce clashes between soveregn states are clashes of lberty, appeals to '1 48 Koskennem, PIL, 14-20. 49 Hart dsplays the legalstc perspectve at frst glance, observng that: "There s no way of knowng what soveregnty states have, tll we know what the forms of nternatonal law are." (COL, 224). But n lne wth Koskennem's clam about the nseparablty of the two perspectves, short work can show that t also reles on the "pure fact" of soveregnty's exstence. 23

I lberty cannot settle dsputes. Transboundary polluton s a notable example of such conflcts, where arbtraton between states must appeal to poltcal (and moral) prncples, 1 such as justce or equty. Solvng such balancng requres a combnaton of (external) facts and (nternal) legal rules together. But facts, chosen accordng to certan crtera, have normatve sgnfcance, and rules, subject to nterpretaton, rely on concrete facts. Soveregnty thus s a crcular concept, relyng on both legal facts and legal rules, and cannot dentfy the orgns of nternatonal legal content. The second opton s to trace the content of IL through ts 'sources.,50 Its emphass s on states as powerful sources of the normatve crtera for ts creaton and dentfcaton, however, attempts to brng the concreteness and normatvty poles together to renforce ts poltcally objectve content orgns. Whle the socal orgns focus on the consent of states, the normatve orgns (whch provde "bndng force") focus on gudng prncples that transcend consent, such as justce, that apply regardless of poltcal preference. Unsurprsngly, the poles are ntertwned. For example, t s just to deal wth consent, and justce s a standard often consented to. Arbtratons where the soveregnty of opposng states must be handled delcately reveal the dffculty nvolved n balancng these two factors. Thus, the concrete exstence of soveregnty and ts consent s at odds wth the normatve nature of poltcal nterjectons, even at the level of laws' orgn. Attempts at ncorporatng actve belef n law, n addton to ts determnate nature, once agan runs across the nterwoven nature of law. That makes the two undentfable as separate enttes, wth the now famlar refran that the behavoural aspect alone s 50 Koskennem, PIL, 20-7. 24

I apologst, and the psychologcal s dealst. Nether stands alone, and the latter n partcular cannot be dentfed by any ndependent crtera. and s extrapolated 'om observed behavour only, a rsky method. Ths crcularty once agan renders the content of law ndetermnate. Thus IL must be seen as smply a pretense for nternatonal poltcs, even f the outcomes are acceptable. Ths realzaton, he argues. allows for a more candd apprasal of states' actons. II. Two Objectons Two central problems arse wth ths account. Frst, ths argument does not work on ts own terms because of ts exaggeraton and ncorrect rejecton of the role of dscreton. Koskennem falsely presents the concreteness and normatvty requrements as strctly ncompatble. leadng hm to overestmate the role of dscreton at the level of ndvdual laws and ther content. He also carcatures the role of uncertanty and dscreton at the level of an underlyng concept of law. Second, the argument reles on too narrow an dea of what law s, an dea based on a hstorcally and culturally contngent development, especally wth respect to hs strct commtments to herarchy and soveregnty. As such, Koskennem msses an opportunty to reevaluate the concept of law accordng to nformaton IL provdes. However, he does offer many tools and partally applcable clams that do ad n such a reevaluaton, whch must also be revewed. A. Dscreton and the Incompatblty of Concreteness and Normatvty Foundatonal to Koskennem's argument s that the unque poston naton-states occupy n relaton to IL, as both the authors and subjects of ts norms, renders 25

nternatonal laws, and thus IL as a whole, ncapable of meetng both the concreteness and normatvty requrements. Yet ths argument reles on a msleadngly strct characterzaton of the dvson between concreteness and normatvty, one that denes that the two elements can be smultaneously consttutve of laws. Whle laws can be 1 wholly concrete or wholly normatve, the exstence of an ntermedate poston s made clearer by revewng Hart's analyss of "rule-sceptsm," an early response to legal realsm. In fact, laws by states are capable of fulfllng both requrements; nternatonal norms are capable of brdgng the subjectve nature of state preference and the demands of objectvty of law, and need not result n uncertanty. Ths can result n two ways. The frst s that the observed behavour (or wll or nterest) of states can be constraned by norms, potentally even nvoluntarly. The second s that some of these norms are followed voluntarly, whether or not ther content contradcts state preferences, because ther socal bass provdes legtmacy. Fnally, a bref assessment of the supposed problems regardng the uncertanty surroundng a concept of law wll be presented.. Rule-sceptsm Hart addressed the role dscreton plays wthn a system of rules, and snce Koskennem loosely equates 'poltcs' wth 'dscreton,' the connecton s promsng. 51 Hart noted that t s unlkely that rule skeptcs deny the exstence of secondary rules, such as those that empower offcals; but rather that they deny t.he bndng role of prmary 51 Moreover, there s a clear foundatonal congruty between the two theores. The concreteness requrement s relevantly smlar to Hart's Socal Thess. The normatvty requrement s also dscernable n Hart; n The Concept of Law he states, "... where there s law, there human conduct s made n some sense non-optonal or oblgatory." (82). Ths makes the argument Hart sets out all the more relevant. 26