International Law as Discipline and Profession

Article excerpt

Oh! Blessed rage for order, pale Ramon, The maker's rage to order words of the sea, Words of the fragrant portals, dimly-starred, And of ourselves and of our origins, In ghostlier demarcations, keener sounds. (1)

INTRODUCTION

International law has gone by sundry names and can be many things. On the one hand, it has been described as a "dense, intricate body of rules and practices"; (2) Thomas Franck, Hudson medalist in 2003, described it as "something of a cultural myth"; (3) Rosalyn Higgins, medalist in 1998, sees it as a continual process of becoming. (4) By contrast, H.L.A. Hart analyzed international law as a marginal form, possessing some but not all the characteristics of a developed legal system and then only imperfectly--as if seen through a glass darkly. (5) Even within the discipline or profession there are those who argue that international law should not properly be called law at all, notably in the United States by reference to what I would argue is a deracinated, ahistorical reading of the Constitution. (6) Over time international law has been treated as philosophy, as sociology, as a "science of the development of societies," (7) as a structure of argumentative moves and positions, (8) as concerned with the "conscience juridique," (9) as part of the colonialist project, as a "gentle civilizer of nations," (10) and as not so gentle at all. (11)

But there is another way into the question, a more functional way. Whether or not the underlying phenomenon exists, and exists as law and not just as simulacrum, there is at least a group--now rather large--of people for whom international law is their discipline or profession. One does not have to believe in the existence of God to credit the existence of the clergy, and if the existence of international law, or its status as law, is for some uncertain or doubtful, one cannot doubt the existence of international lawyers, people who are in the profession of doing something they identify as international law, are paid for it or even do it for free, in seemingly endless pro bono briefs. And just as one might look to the clergy for an "internal attitude" to religion, so international lawyers may be those who have, in the best Hartian manner, an internal attitude to their law. (12) Neither attitude warrants the existence of the object believed in, but there seems at least to be a human need being met or else, like the clergy of a vanished faith, they would not be there--and we would not be here. So I will try to identify what it is we do in the exercise of our discipline or profession. What is it that international lawyers actually do?

In The Idea of Order at Key West, Wallace Stevens writes of the "blessed rage for order"; in that case "the maker's rage to order words of the sea." International lawyers are driven by a blessed rage for order--in our case a rage to impose and maintain order through words, in a world that much needs order, whether at sea or on land or in the air or in space--or indeed in cyberspace. In Alain Pellet's view, the thirst for law has never been more insatiable than it is now: international law is "as necessary to the state as air to human beings or water to fish." (13)

We can see that thirst for standards, for example, in the way in which the ILC Articles on State Responsibility have been applied by international courts and tribunals since their adoption by the Commission in 2001. In 11 years the Articles have been so cited more than 150 times, almost always with approval. This practice extends to the International Court--in the Wall Advisory Opinion Articles 25 and 33 were cited (and Article 41 was quoted without acknowledgement); (14) in Bosnian Genocide Article 14(3) was cited; in Pulp Mills Articles 34-37 were cited; in Germany v. Italy Articles 13 and 30(a) were cited--and Article 41 was expressly referenced too. Indeed, Article 48 was given a guernsey (if I may use an Australianism) in the 2011 advisory opinion of the Law of the Sea Tribunal! …