Groundwork for international law.

Author:D'Amato, Anthony
 
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International law is a system; its environment is the field of international relations. Although the word system is often used generically, (1) it has a formal meaning in "general systems theory," an interdisciplinary methodology that grew out of cybernetics research in the 1970S. (2) Since then, general systems theory has proved to be a significant heuristic in hundreds of disparate research areas. In describing international law from the viewpoint of an autopoietic system (to be defined shortly), this article intends not just to reexamine the foundations of international law but also to help litigators and negotiators make their international-law arguments sounder and more persuasive.

A general system is an entity that is separated from its environment by a skin, a membrane, or even just a description of its boundaries. The elements inside the system interact with each other. An open system interacts with its environment; a closed system (for example, a bacteria culture inside a sealed test tube) interacts only with itself. International law is an open system because it gets its information from diplomacy, and its rules, in turn, affect diplomatic strategy. The rules themselves are interconnected, as shown by the fact that any rule may be used as a sanction in cases of noncompliance with international law. (3) Adding to the interconnectedness of rules is the fact that the states that cite or violate them form a nonscalar communications network (4) of radio, television, the Internet, cell phones (the most ubiquitous product in history, with an increasing impact on human rights), trade, and cross-boundary movement of persons. In brief, international rules, norms, principles, privileges, duties, and entitlements (even when translations of these terms can be fuzzy) form an identifiable and coherent set within the system. (5)

Autopoietic systems were discovered in 1973 by Chilean biologists Humberto Maurana and Francisco Varela. (6) Their theory defines living systems as self-producing units that maintain their essential form, perpetuating themselves according to their internal organization. Not only do we now know that a living animal can be described by the autopoietic system, but we have the contrary claim--enormously successful as a heuristic in scientific research--that entities with an autopoietic organization can parsimoniously be studied as if they were alive. (7) The international legal system is a living system because it is made up of jurists and practitioners (the invisible college, to be described below), and because these persons have invested their careers in the hope and reasonable expectation that the system will perpetuate itself into the foreseeable future. (8) The system therefore "wants" to persist through time; indeed, it has survived since the fall of the Roman Empire.

The internal coherence of the international legal system is evidenced by the fact that it can be viewed anthropomorphically. This coherence is sometimes hard to see from the phenomenological perspectives of one's home state. General systems theory provides a top-down vantage point (9) that helps, first, in providing an efficient descriptive model of the international system incorporating minimalist empirical assumptions of state behavior; second, in providing explanatory theories of causation for its set of norms; (10) and third, in predicting generally the system's acceptance or rejection of new putative norms of customary international law. (11)

All living systems want to survive over time. As a general matter, the international legal system's best tools in the Darwinian struggle to survive are, first, adhering to a set of noncontradictory rules and principles of public international law; second, applying these principles to all states equally; and third, recognizing a bias in the rules themselves (and in their formation) in favor of peaceful resolution of disputes, thus raising the odds of the system's survival. The same factors work in reinforcing and replenishing the perceived value of the system, thus increasing the prestige of its practitioners and experts.

The systemic rules I will be analyzing are rules about rules--rules of the general system of international law, or more simply, metarules. They can be taken as constitutive of present international law--"constitutive" meaning both epistemological and ontological. Thus, each of the systemic propositions in part II of this article can be challenged by the reader as empirically unfounded, (12) ontologically invalid, or both. This potential double challenge has acted as a strong constraint upon my formulation of the propositions in this article. I have tried to formulate them as simply as possible (following Occam's razor) and to likewise limit their number, taking into account the great diversity of international law. The general template will, I hope, survive any errors within it, thus making it useful to others if they choose to substitute or add new propositions.

What make the present project feasible are two nonsubjective factors. First is the coherence of the international legal system itself. Its rules are well honed and well tested. It resembles a biological system that has evolved over time. The system strives to preserve itself by providing a normative peace-tilting check upon contested issues of international relations and diplomacy. Mutant conflict-stimulating rules that led to warfare have been replaced--in the Darwinian struggle to survive over the centuries--by cooperation-enabling rules. The second factor is the nature of law itself. Law is inherently conservative; its rules of decision emphasize adhering to precedents from the past. A peaceful past is a presumptive guide to a peaceful future. Stability can be seen as a function of rule preservation. Thus, the struggle for survival of the international legal system through time is coterminous with maintaining the integrity of the majority of its rules, norms, and principles.

For transparency of exposition, the theory presented here is broken down into its components: axioms, propositions, and corollaries. Four axioms describe basic requirements of the international legal system. Eleven propositions illustrate the sorting process that the system imposes on all potential legal rules that strive to become part of the system. Twelve corollaries present examples of the propositions and, in a few cases, examine related theories. By applying its three components, one applies the theory itself; there is nothing left over.

Taken together, the axioms, propositions, and corollaries herein offer a structured, internally consistent explanation of why the present rules of international law, instead of other imaginable or counterfactual rules, have turned out to be the fittest in the international legal system's Darwinian struggle to survive. Of course, mutant rules may arise at any time to replace one or more of the existing rules. However, a testable consequence of the groundwork offered here is that the probability of a potential rule replacing a current rule is a function of the former's having a tighter fit into the axiomatic scheme. Thus, the proffered axiomatic scheme has "bite": it is a filter for testing, accepting, or rejecting new rules.

  1. FOUR FOUNDATIONAL AXIOMS

    AXIOM 1. The primary purpose of the international legal system is not to regulate international relations but to preserve itself.

    The general-systems point of view focuses primarily upon the system and only secondarily upon the system's goal or purpose. James Crawford's book International Law as an Open System (13) takes the latter viewpoint: international law's purpose is to regulate international relations. By contrast, the general-systems viewpoint here takes an essentialist position in claiming that the rules and processes of international law can be best explained if we start with the self-protective nature of all aggregative, interconnected entities known as general systems.

    International law is not a stack of rules on a library shelf. It is a professional industry, made up of national officials, diplomats and statespersons, international practitioners and scholars, law professors and students, UN officials, judges of international courts and their clerks, professional arbitrators, judges and clerks of bilateral claims commissions, and advocate-members of NGOs, among others--all of whom were well described by the late Oscar Schachter as an invisible college of international lawyers dedicated to a common intellectual enterprise. (14) Because of the time that these persons have devoted to studying and learning international law, they have invested significant human capital in the system's continued utility and preservation. To be sure, they will often disagree as to whether an alleged rule belongs to the set of accepted rules of international law (especially if it is their job to come out the way that their employers or their governments demand), but even then they have a personal stake in preserving and maintaining the system of international rules. Governments turn to them for advice as to the international legality of a given policy that the government plans to implement--at the very least in order to help predict the reactions of the legally informed international community. These advisers, both official and unofficial, infuse the international legal system with a dynamic sense of purpose and persistence. Thus, to the tens of thousands of persons making up the invisible college around the world, international rules can sometimes seem incorrect but never irrelevant.

    The greatest threat to the viability of the international-law system is anarchy. With total anarchy, international law would perish and might be replaced, if peace is restored, by something entirely different (such as a world dictatorship). (15) Thus, when any controversy arises among nations and the relevant rules are in dispute, the international legal system's...

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