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gives military support to opposition parties to overthrow a com-
munist regime in a Latin American state, it can only be supposed that
it is extremely serious about what it is doing. It is difficult to see what
is gained by the Court treating some state intentions (whether of the
US or of Nicaragua) as political and others as legal. This appears to
be a  head in the sand approach, which denies the international law
profession the analytical framework to grasp fully the intentionalities
of the parties engaged in a conflict, thereby penetrating beyond the
corporate veil of the state to find the subjective elements within it.
The ICJ was faced with an issue of high politics. This should
provoke reflection upon the question whether the traditional analyt-
ical tool of general customary law is suitable for the elements of ide-
alism and realism, altruism and state egotism that are at play in the
legal phenomena of international relations. The US determines that
its interest or national security cannot tolerate the close proximity of
a new neighbor (Sandinista Nicaragua) dedicated, in its view, to an
irreconcilably hostile ideology. It is very problematic for the legal
positivist to ask himself categorically, in each atomistic instance,
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30 Philosophy of International Law
whether the state has or has not acted on the basis of a legal convic-
tion. Yet it is inevitable that a state will form some ideal view of what
it needs to undertake for its own security. Is there no analytical frame-
work within which one can assess critically how the state attempts to
do this?
Legal positivism has, since the French Revolution, given expres-
sion to the idea that the will of the state is, in fact, the democratically
expressed will of the people, constituted as a nation.17 There is very
little official state disagreement about this rather confused hotch-
potch of political-legal ideas, which has come out of European culture
since the French Revolution. This view of democracy combines with
a vaguely benign view of a romantic nationalism, which supposes that
peoples as group actors constituted in states are sufficiently motivated
by idealist ideologies for their international relations to signify more
than a mere interplay of Machiavellian calculations of state interest.
This is not to say that legal imagination must be defeated by the
complexities of international life, only that it must rethink the options
that the language of general customary law offers. One may illustrate
the possibilities by contrasting two Frenchmen reflecting, also in the
1980s, on the general legal significance of the third United Nations
Conference on the Law of the Sea.
A former head of the French Foreign Office legal department for-
mulated a relevant thesis while still a judge of the ICJ. De Lacharrière
argues that a state has inevitably conflictual relations with other states
and will, as far as possible, formulate and interpret a rule of posited
law to its own advantage and equally to the disadvantage of its neigh-
bor. The international lawyer, as a legal scientist, must observe, in a
detached manner, the particular convergence of circumstances which
persuades a state that it has no choice, if it is to have another state
agree to something which it does not want, but to agree to a measure
of what it does not want. Throughout his text de Lacharrière devel-
ops a lucid account of the most extensive possible negation of Kant s
categorical imperative  do as little as possible to base your conduct
on a general principle applicable to everyone, but subject to your
being aware that the determination of others to do precisely the same
will mean that you will end up somewhere in the middle.18
Particularly important are de Lacharrière s reflections on the draft-
ing and conclusion of treaties as evidence of the evolution of general
customary law  a principle given great attention by the ICJ in both
the North Sea Continental Shelf Case and the Certain Militaries
Activities (Nicaragua) Case. The Law of the Sea Convention (1982)
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Continuing Uncertainty in the Mainstream 31
is a treaty. Concerning its value in international law, de Lacharrière
insists that treaties are used by states merely as a convenient technique
to predetermine conduct in international relations. Insistence upon
their application will depend very much on whether states intend their
own behavior to correspond to the treaty. Furthermore, the process
of drafting a treaty is that of a diplomatic conference and it is there-
fore unscientific to attempt to transform this essentially pragmatic
environment into the academic straitjacket of the search for an opinio
juris of states with respect to the formation of customary law. This is
simply another way of saying that the diplomatic representative is
authorized to achieve what advantage he can through negotiation.
The act of ratification by government and parliament is quite sepa-
rate. Finally, there is nothing remarkable about states taking up posi-
tions that are analytically or doctrinally inconsistent or incoherent.
The doctrine of estoppel is a judicial invention which does not corres-
pond to how a state formulates its view of its own interests. The basic
principle of state conduct is that each state insists naturally on its own
specificity. At the same time each state sees itself as a unique repre-
sentative of universal values, but precisely in the sense that these are
understood to give specific significance to its own practice in terms of
the development of general customary law.19
None of this is to say that international law does not exist. It is
simply that scientific study of its functioning has to focus on the tech- [ Pobierz całość w formacie PDF ]

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