International Law and International Politics: Foundations of Interdisciplinary Analysis

315 Pages·2020·3.983 MB·English

by  Alexander Orakhelashvili

International Law and International Politics
PRINCIPLES OF INTERNATIONAL LAW
As the issues addressed by international law become ever more complex and
critical there is a greater need than ever for clear and rigorous exploration of
the key principles and frameworks which underpin its working. This important
series presents concise, analytical overviews of specific areas of international
law, from international criminal justice and international humanitarian law to
the law of treaties and the law of state responsibility.
Written by some of the best names in the field, as well as the new generation
of scholars, each book uses a structured approach and an accessible style, yet
also provides careful analysis and new insight. Books in the series offer an
invaluable source of reference for scholars and postgraduate students, as well
as for lawyers and policymakers working in the respective individual fields.
Titles in this series include:
The International Law of State Responsibility
An Introduction
Robert Kolb
International Criminal Justice
Gideon Boas and Pascale Chifflet
International Law on the Maintenance of Peace
Jus Contra Bellum
Robert Kolb
The International Law of Biotechnology
Human Rights, Trade, Patents, Health and the Environment
Matthias Herdegen
International Humanitarian Law
Rules, Controversies, and Solutions to Problems Arising in Warfare
Marco Sassòli
International Investment Law
Arnaud de Nanteuil
International Human Rights Law and Diplomacy
Kriangsak Kittichaisaree
International Law and International Politics
Foundations of Interdisciplinary Analysis
Alexander Orakhelashvili
International Law and
International Politics
Foundations of Interdisciplinary Analysis
Alexander Orakhelashvili
School of Law, University of Birmingham, UK
PRINCIPLES OF INTERNATIONAL LAW
Cheltenham, UK • Northampton, MA, USA
© Alexander Orakhelashvili 2020
All rights reserved. No part of this publication may be reproduced, stored in a
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http://dx.doi.org/10.4337/9781839106446
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Contents
Introduction vi
1 States as basic units 1
2 Law, power and politics 39
3 The foundational framework 91
4 Models of authority and governance 170
5 Law, power and global space 241
6 Peace and war 267
7 Conclusion 286
Bibliography 287
Index 300
v
Introduction
This study analyses the impact of international law on international politics
from an inter-disciplinary perspective, combining and contrasting the method
of international legal reasoning with that of the international relations disci-
pline. The need for an interdisciplinary approach has long been acknowledged.
It was suggested in the mid-nineteenth century that Hegel’s thesis that States
are the ultimate materialization of will and national spirit, and hence are
in a state of nature with each other, has motivated international lawyers to
insist that law and power should be studied together.1 The inherency of the
interdisciplinary approach requires that international affairs be theorized in
the languages of political theory and law, which are the languages appropriate
to man’s control of his social life. Political theory and law are both maps of
experience and records of normal relationships and their calculable results.2
While the above accurately describes the nature of the problems that
any coherent interdisciplinary study will confront, the modern condition of
academic scholarship in this area – and in either of the two disciplines dealt
with here – does not always adequately address these problems. International
lawyers do acknowledge that power and national interest factors exist and
are very important; but they ordinarily have no analytical and methodolog-
ical capability to examine these essentially socio-political categories in any
coherent manner. Their understanding and in some cases deference to these
political factors can often be identified between the lines when their writings
are closely scrutinized. Likewise, international relations scholars are not
ordinarily expected to have a comprehensive knowledge of international
law. Some of them demonstrate a better understanding of international legal
categories than others. Overall, it seems that international relations theory has
not recently taken a hard look at its own basic concepts and categories, and the
multiplication of theories entails that each theory assumes concepts and cate-
gories of its own. There is also less emphasis on the grand debates of previous
times; the concepts that those debates worked out are routinely applied instead.
But the main problem on both sides across the interdisciplinary divide is that
1 Pütter, Über das Princip des praktischen Europäischen Völkerrechts, 4 Zeitschrift
für die gesamte Staatenwissenschaft (1847), 535 at 541.
2 M. Wight, ‘Why there is no international theory?’ in H. Butterfield and M. Wight
(eds), Diplomatic Investigations (1966), 17 at 33.
vi
Introduction vii
today’s thinking and writing focus primarily on current events, without paying
sufficient attention to similar events that have happened in the past – events
that provide lessons as to whether certain political agendas practised today are
realistic.
Working out the parameters of any academic discipline requires a state-
ment of its object of cognition and the methods through which this object is
approached. In order for various disciplines to properly talk to each other, they
must understand each other’s aims and methods. There is no utility in inter-
disciplinary dialogue if both disciplines purport to do the same thing; or if one
discipline facelessly embraces, and accepts its subordination to the methods
of, the other. It is even more obvious that, unlike international relations theory,
international legal reasoning concentrates on the concrete and real system of
positive international law, which actually operates in the relations and practices
of States and other international legal entities. International legal reasoning is
dependent for its own integrity and accuracy on its own correspondence with,
and reflection of, elements and dimensions of this concrete system of law.
Another challenge that arises from an interdisciplinary approach is that
the methods and categories of each discipline are rather different, and are
used to contest each other’s relevance or reliability. As Nardin clarifies,
‘because force, order, and justice can each appear paramount, it is doubtful
whether there will ever be complete agreement about how we should resolve
the tensions between them’.3 Complete agreement among theorists is indeed
almost impossible; but greater scientific certainty is very possible. In order to
achieve this aim, the priority should be – as Morgenthau suggests – to focus
on the scientifically ascertainable truth.4 As Henry Kissinger has explained,
‘The West is deeply committed to the notion that the real world is external to
the observer, that knowledge consists of recording and classifying data – the
more accurately the better.’5 The scientific analysis can, furthermore, lead to
conclusions that are ideologically unexpected.
When discussing and critiquing the natural law views that purport to ration-
alize the existence and essence of political orders, Hans Kelsen refers to the
main naturalist thesis that existing political orders are to be seen as a product
of God or nature, and hence ‘The Real is the Rational and the Rational is the
3 D.R. Mapel and T. Nardin, ‘Convergence and Divergence in International
Ethics,’ in T. Nardin and D.R. Mapel, Traditions of International Ethics (1992), 297 at
322.
4 H. Morgenthau, Politics Among Nations (1948), 4.
5 H. Kissinger, ‘Domestic Structure and Foreign Policy’, 95 Daedalus (1966), 503
at 528.
viii International law and international politics
Real’.6 From the viewpoint of legal positivism, which amounts to the language
through which the international legal system works in practice, such naturalist
assumptions would be non-starters. Positivism requires a focus on available
evidence instead. The international relations theory that is methodologically
closest to the legal positivist doctrine is that of political realism, which like-
wise focuses on what actually happens in world politics, as opposed to what
a particular ideology considers to be rational or desirable.
The need to focus on scientifically ascertainable reality increases the need
for ontological observation. Ontology ‘is supposed to tell us what there is
in general, or what kinds of things make up reality’.7 Ontological questions
concern whether relevant things are and what they are like.8 As Bertrand
Russell has observed, if we cannot be sure of the independent existence of
objects, we are left alone in the desert and cannot believe in anything apart
from our own existence.9 The world presents itself to us first and foremost as
a world of ordinary objects. If there are ordinary objects and their properties,
‘then one large-scale picture of the material world is correct’.10 The basic
point of Parmenides – that ‘it is impossible for what is not to be’ – expresses
a systemic dimension of ontology that neither a writer nor a policy adviser can
evade, bypass or ignore. The nature of units and things must be judged not by
their positive characteristics, but by reference to properties or universals that
distinguish them from other arguably or seemingly similar objects.11 It is these
qualities and properties that constitute the relevant object as a singular cate-
gory of cognition,12 enable the observation of its singular operation and thus
explain its distinction from other objects. The feasibility of political agendas,
orders and grand strategies should be assessed by reference to the thesis that
‘subsistence is, like existence, a species of being’.13
6 H. Kelsen, ‘The Natural-Law Doctrine before the Tribunal of Science’, 2
Western Political Quarterly (1949), 481 at 508.
7 T. Hofweber, Ontology and the Ambitions of Metaphysics (2016), 1.
8 Hofweber, 9.
9 B. Russell, The Problems of Philosophy (1912), 17.
10 Hofweber, 5, 183.
11 Hofweber, 5.
12 The idea of singularity is expressed as follows: ‘given that something does
indeed qualify as a single object of some kind, it is hard to see how what makes it the
very object that it is could fail to be what also makes it one object, for such an entity
could not be the very object that it is without thereby being one object.’ E.J. Lowe,
‘Two Senses of “Individuate”’, in M.J. Loux and D.W. Zimmerman (eds), Oxford
Handbook of Metaphysics (2009), 75 at 76.
13 P. van Inwagen, ‘Existence, Ontological Commitment and Fictional Entities’, in
Loux and Zimmerman (eds), 131 at 133.
Introduction ix
Guided by these priorities, this book proceeds to examine the relationship
between international law and international politics by addressing the range of
central issues that are examined by both disciplines – or at least, that impinge
on the consistency of their methodologies.
Chapter 1 examines the key concept of States as basic units, which deter-
mines the essence of the system in which international politics is conducted.
The chapter traces the development of the concept of State in scholarship
in contrast to its development in real life. Particular attention is paid to the
concept of corporate relativism, whose essence derives from corporate experi-
ences in private and public life in Europe from the Middle Ages onwards – the
concept taken up again in later parts of the study. The chapter also introduces
a key concept of internal legitimation of States, which enables the analysis in
subsequent chapters to be conducted more coherently and economically.
Chapter 2 describes the relationship between law, power and politics. It
identifies political realism as the principal theory that serves as the basis for
an interdisciplinary discussion of international law and international politics.
This facilitates a closer look at the dilemmas that arise when political and legal
factors are seemingly or genuinely in conflict. Other theories such as liberal
institutionalism and constructivism are also discussed.
Chapter 3 deals with power above power – namely, with the ultimate foun-
dational framework of international affairs, which accounts for all operations
of international law and international politics; for all lawful and unlawful
conduct; for all actions and reactions. To identify the essence of this ultimate
foundational framework, a number of theories are called to aid, such as organic
theory, social contractarianism, corporate relativism and Kelsen’s pure theory
of law.
Chapter 4 deals with models of authority and governance available or imi-
tated on the international plane. Apart from ordinary institutional developments
on the basis of contractual and consensual delegation of authority from states
to institutions, there have historically been other structures of authority that
could not be explained through delegation. From the fifth century onwards, the
nature of supranational papal authority was rationalized on the international
plane. Then, the framework of the Holy Roman Empire provided abundant
discussion of sovereignty and other related concepts for centuries. The idea of
power-political preponderance was clearly attendant to the nineteenth century
European concert of great powers. And more recently, the ideas of hegemony
and informal empire have raised further issues of how politics determines
authority on the international plane. It is important to understand that the object
this chapter is not a description or analysis of the grand strategies or policies
pursued through particular models of governance; but rather an assessment of
whether, due to the realities of both international law and international politics,
the relevant models are real.