DR. MIRO CERAR
VI. THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND POLITICS
All of the presented arguments regarding the autonomy of the law, as well as regarding the similarities and differences between the law and politics, which were intended primarily for the sphere of the national law and politics, also apply, mutatis mutandis, to the sphere of internationa law and politics. Naturally, there are some significant differences between both spheres, but most of these differences are, regarding the issue of the autonomy of international law, only a matter of degree or intensity.
Over the years, international law and its relationship to national laws have been defined in a variety of ways. It is crucial that international law be comprehended as law, and is relatively autonomous with regard to national legal orders, and also regarding national and international politics. Of course, there have always been different and opposing theories concerning this issue. There are several arguments for and against the claim that international law is truly law. 29 Here again, we are faced with the issue of ontological monism or dualism. If we are inclined toward monism, we tend to define international and national law as a unity, while a dualistic approach leads us toward the establishment of essential differences between both entities. Although there have been many thinkers and scholars who have defended either the monistic or dualistic approach,30 it seems that today the dualistic understanding prevails in theory and practice. International law can be defined as a relatively independent set or system of legal rules (legal norms), called and comprehended as law, and applies to normatively determined legal subjects, primarily to states and international organizations, but also to other subjects, such as “peoples”, and individual human beings.31 International law significantly differs from national legal systems due to its predominantly horizontal nature, its embodiment in the system of international relations, the nature of its sources, the nature of its subjects and their treatment within the sphere of international law, the lack of a central (“sovereign”) legal authority, the decentralization of legal functions, the characteristics of legal procedures before international tribunals, and, last but not least, the weak and specific nature of international legal obligations and sanctions. Hence, it is useless from a practical point of view to maintain a theoretical approach that denies any essential difference between international and national law.
There are, of course, some common features which can be ascribed to any system of law, such as a set of legal norms (legal principles and rules), the existence of certain legal procedures, and a person or body that creates legal norms and adjudicates accordingly, the existence of relatively effective legal sanctions, etc. Yet, at the very core of its existence the law is a collective psychological phenomenon, which manifests itself in humans’ collective imperative-attributive normative comprehensions of the conflicting relationships between different legal subjects. As explained above, every greater digression from this relatively balanced imperative-attributive normative comprehension of social relations means that in our minds we have left the legal dimension and entered some other.34 Thus, to put it simply, international law exists as a relatively autonomous phenomenon in relation to national law, as well as to international or states’ politics, only inasmuch as we comprehend it as law and treat it as such at the level of international and other relations.
Almost all factors that establish the relative autonomy of the law apply more or less to the autonomy of international law. These factors are individually and together much weaker than in the case of national law. It is a well-known fact that in international relations politics have a much stronger impact on international law than within individual democratic states, where modem law, governed by the rule of law, applies. For this reason it is important that all legal and political actors at the international level strive for more autonomy of international law, especially in relation to politics. As long as checks and balances between international law and politics do not reach a more satisfactory, i.e. equilibrated level, the demand for greater legal autonomy should remain the leading thought of all international actors.
The same reasons that lead to the recognition of the differences between law and politics at the national level, must also be recognized in the sphere of the comparison between international law and politics of any kind. As already mentioned, these differences, when applied to the field of international relations, appear to be more a matter of degree than content. Thus, the relationship between international law and politics differs from the relationship between democratic state law and politics mainly in the following ways: a) in comparison with national law, international law is more intensively mixed with politics in the activities of international lawyers and specialized legal institutions, such asinternational courts and tribunals; b) international law is more strongly influenced and manipulated by political power and interests; c) it is more subject to political thinking in terms of “ours” and “theirs”, or “friends” and “enemies”; d) it is more flexible, and, with some exemptions (such as the practices of international courts) also less predictable than national law; e) it is, as a rule, weaker than national law in the sphere of implementing legal obligations or sanctions; f) the correlational imperative-attributive attitude of its bearers, especially international political and legal actors, is weaker than in national law, because of the stronger impact of politics.
From the point of view of the law, it can be concluded that national law, as well international law, function in relation towards politics in three basic aspects, namely, as a goal, means, or obstacle. First, politics (in the meaning of political mind or political actors) can define certain predominantly legal values or institutions (such as, for example, the principle of legal equality, the presumption of innocence, or the right to privacy) as its goal. In this case the political understanding of these values or institutions becomes almost identical to an authentic legal understanding of the same values or institutions (e.g., politics strives for the protection of the principle of legal equality or the right to privacy). Second, politics can comprehend the law merely as a means for the fulfillment of certain political interests. In this case politics is neutral in its attitude toward the law (e.g. politics defines and realizes its political interests and goals in accordance with the principle of legality and legal equality). Third, politics can understand law as an obstacle on the way toward the realization of certain political goals. In this case there are two basic solutions: either politics prevails over the law, or vice versa. In the first case politics effectuates its solutions at the expense of the rule of law (for example, the legislature enacts laws which give the executive branch more discretionary powers; or politics leaves the laws unchanged, but it does not act in accordance with them), while in the second case the autonomy of (international) law is preserved by the decisions of the highest (international or national) courts, or by other actions taken by lawyers, intellectuals, different associations, and organizations, and, last but not least, the wider public in order to stop illicit acts of political actors.
The law and politics create their own particular pictures of reality. None of these pictures correspond to reality as such, which is an inseparable unity beyond our human comprehension. However, both particular pictures are of utmost importance for our societal life. Sometimes they overlap, and sometimes they differ, more or less strongly. Yet, there is something that the law, either national or international, should never include in its sphere. Namely, the differentiation of adversaries according to a genuinely political criteria, which leads to a strict separation between “ours” and “yours”, or, in its most radical expression, to a strict separation between friend and enemy. The ideal of Justice, often presented in a statue of a woman with blindfolded eyes and scales in her hand, must always remain the fundamental guiding principle of the law, and especially of judges and other lawyers, who must never allow themselves to comprehend the parties in conflict – either individuals, or different legal entities, including states and international organizations – as enemies. When the latter occurs, politics inevitably prevails over the law, and the judge or any other person who thinks and feels in that political-ideological way causes, in proportion to their social rank and power (influence), serious damage to the autonomy of the rule of law.
This is, in turn, destructive for the democratic society and international relations and must be as such avoided or appropriately confronted to the highest possible degree .