Nicols Parra (200621253) Question 2

THE QUESTIONING OF LAW: A FUNDAMENTAL BASIS FOR INTERNATIONAL LAW Man seeks order, welfare and justice not only within the states in which he lives, but also within the international system in which he lives. Malcolm Shaw. Many international legal scholars have tried to answer the following questions regarding international law: (i) What it is? (ii) What is it for? and (iii) is international law really law? The answers to these questions have varied depending on the ideologies that these scholars embrace and on what they believe law really is. I will argue in this paper that the debates about the nature and goals of international law exist because scholars have different notions of law itself. Hence I think, and this is surely controversial, that the most fundamental question in international legal scholarship is: what is law itself? And secondly Is international law really law? 1 Only by answering these questions we can proceed to answer the two remaining ones. (i) Whenever one is studying a subject the main question that comes to mind is: what is the subject that I am studying? Or in this case: what is international law? This question aims to reveal the nature of the discipline and its unique characteristics. Mainly there are two ways to address this question: by emphasizing the historical dimension of the question or by highlighting its relational dimension. In the first case, scholars as Stephen Neff, have argued that the ambiguity of the term international law have lead to different answers depending on the historical epoch in which it was questioned: international law meant a more or less comprehensive substantive code of conduct applying to nations () or international law meant the integration of the world at large into something like a single community under a rule of law, 2 [etc.] In the second case, scholars as Malcolm Shaw, have sustained that to answer what is international law we have to answer before what international law is not (relational). Thus he argues that international law has its own internal logic, and that the nature of international law should not be derived from classical legal notions that were applied traditionally to municipal law. International law is not a vertical system of obligation, but a horizontal one. On my account both approaches are incomplete because to find out the nature of international law we have to understand what does it aims for even before we take a historical or relational approach to the 3 question what is international law. (ii) The question what is international law for points to the instrumentality of international law. In this sense, the concern is not to define international law, but rather to see international law as a tool for achieving something. There are two mainstreams of thoughts that have addressed this 4 problem, following Koskenniemi, the idealist and the realist. The first is influenced by Kants 5 philosophy and argues that international law is a modernising project, a state building project, a project for economic and technological development, for human rights protection () and 6 global security. In this sense international law is for maintaining a global peace and for the 7 protection of human dignity. This is a more optimistic point of view that conceives international law as the result of states deliberation with equal conditions to legislate their relations by using

In other words international legal theory should be grounded in legal theory. Neff, Stephen C.: A short History of International Law. In: Evans, Malcolm (ed.): International Law. New York: Oxford University Press. 2003. P. 4. 3 One way to answer the question what is x?, is to answer it by saying what x-is-for. For example what is a knife? An instrument composed by a blade and a handle that is for cutting. This is the reason why I think the answer is incomplete without referring it to the finality or instrumentality of x. 4 Koskenniemi, Martti: Histories of International Law: Dealing with Eurocentrism. Utrecht: Treaty of Utrecht chair. 2011. P. 9. 5 Cf. Kant, Immanuel: Perpetual Peace. Indianapolis: Hackett Publishing. 1983. 6 Ibd. P. 8. 7 This objective has emerged from what might be called the genesis of formal international law: 1648 Westphalia Peace treatise.
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Nicols Parra (200621253) Question 2

only universal reason and not particular interest as their justification. And thus it conceives law as the instrument to achieve peace and protect human dignity. The realist, on the other hand, holds that international law is the manifestation of state interest, narratives on geopolitics, the play of power relations among states and the result of politicalinternational relations that are guided by states self-interests. This view, on my account, divides the world into two segments: either European and not European States or Western and nonWestern States. With this binary logic the realist account sees that international laws aim is to make the other less other, or in other words, colonized the others values and principles in order to make it westernized or liberalized. This is what Antony Anghie has named the dynamic 9 of difference , which gives impetus to the aim of international law: colonization in its myriad of forms. The notion of law implied here is something as follows: a powerful tool to make the other less other, or in other words, law as a means to colonized the others. The question of what is international for? is crucial for understanding the different layers in which international law operates. And it also makes us aware of the intrinsic dangers of an universalist project such as international law, because if we are going to create a world order we will have to sacrifice particular values which are nonetheless important for human flourishing. Thus this question involves either a suspicion of the ends of international law or a blindbelieve that the power relations are not sufficiently strong to boycott the normative grounds and moral ends of international law. If we are sympathetic to the idealist point of view we will think that international law is really law, but if we think that the realist point of view is more accurate, then we will have to say the international law is not law. So either way we have to address the question: Is international law really law? (iii) This question aims to a fundamental problem that has been discussed broadly in legal theory: What is law? Only by addressing this question we can answer if international law is law or not. And, indeed, this question has various answers. I will propose one approximation to the concept of law to determine if international law has, as Wittgenstein would put it, a family 10 resemblance with it. I do not agree with Austins notion of law, namely, an order from the 11 sovereign which is backed by threats and which is usually obeyed. Following Harts suggestions, the concept of law neither presuppose an order backed by threat, nor that the 12 subjects of law are necessarily human beings and not sovereign states. It rather implies, on my account, a Messianic structure: a structure in which the claim for justice pervades the system and which can only operate if the subjects that are going to be bound by that legal system have obligations to comply with some mandatory norm in order to bring justice to the community. In this sense international law can be related, and not completely identify, to certain intrinsically promises of law, such as, substantive and formal equality, peace and respect for human dignity. Probably this approach to the question is not completely satisfactory for a reason: I have not yet addressed the more difficult question: Has international law to be a binding system for us to call it properly speaking law? How can international law be a binding system if there is not a sovereign that enforces the obligations or sanctions? These questions have implicitly a fallacy this is also known as the Austinean challenge: something is binding if there is someone (a sovereign) to impose a sanction if the rule is not followed. This fallacy has been around for
To this optimistic point of view the realist would answer, along Carl Schmitt lines, Whoever invokes humanity wants to cheat. In: Koskenniemi, Martti: What is International Law for? In: Evans. Op. Cit. P. 39). 9 Anghie, Antony: The Evolution of International Law: colonial and post-colonial realities. Third World Quarterly, Vol. 27, No. 5. P. 742.
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10 Cf. Wittgenstein, Ludwig: Philosophical Investigations. Oxford: Blackwell Publishing. 2001.

Cf. Austin, John: The Province of Jurisprudence Determined. Cambridge: Cambridge University Press. 1995. This argument of Hart tries to address the Austinean challenge for international law. Cf. Hart, H.L.A: The Concept of Law. Oxford: Clarendon Press. 1994. P. 216.
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Nicols Parra (200621253) Question 2

years and I think is time to re-construct or de-construct the notion of binding obligation if we want to address this question in a more nuanced way. Binding can be defined not as something that we do to evade punishment, but rather as something we do because we believe is something that we should do in order to bring justice to the international community. The notion of obligation can be displaced from an external point of view to an internal and moral point of view. Perhaps this demands from us to overcome the positivist ideal, and here I am turning away from Hart, of distinguishing law from morality. Only by doing so, we can understand that international law is law because it implies a promise of justice and a moral ground in the same way that law implies it. But again, this is a difficult topic, and thus every attempt to answer the question is international law really law?, will be determined by the way we understand law itself: if the approximation to the concept of law changes to a more traditional Austinean concept of law, then perhaps international law would not be regarded as law. Thats the reason why I think that the most fundamental question from the three discussed is: is international law really law?, but to answer this question we have to answer the proto-question of international law: what is law itself? This will determine the way we answer the other two questions. As we have shown, international law is not an easy subject to determine and define. But in the multiplicity of definitions, aims, and descriptions of international law, we have found that the most fundamental question is if international law is law or not. Only by answering this question, and hence by committing ourselves to a notion of law, we can continue to elucidate the following questions: what is international law for? and what international law is? If we agree that international law and law itself share a Messianic structure and a moral foundation we will see that its aim is guaranteeing human flourishing and its ground: human dignity. Law and international law share a concern for justice, as Koskenniemi puts it: there is a Messianic structure to international law, the announcement of something that remains eternally 13 postponed , and I would add, the search for something that remains eternally elusive and yet necessary for humanity: justice, the alpha and the omega of international law and law itself. Yet there are plenty of differences that have to noted, this is why I am not talking about identifying international law and law itself, I am just saying that there is a family resemblance.

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Koskonniemi, M. Op. Cit. 2003. P. 53.