The Elusive Pursuit of a Transnational Legal Order
Chapter 1: Mirages
1. Mirages If one party resolves to demand what the other resolves to refuse, the dispute can be determined only by arbitration; and between powers who have no common superior, there is no other arbitrator than the sword. Samuel Johnson Thoughts on the late transactions respecting the Falkland’s Islands, 17711 International law is an industry. It is driven not by a demand for justice, but by the pursuit of its own self-propagation. The determinants of its growth are not principally exogenous but endogenous. It achieves remarkably few of the goals it purports to advance. It is not a legal system at all in the conventional sense. At best it is a bogus and impotent bureaucracy; at worst a rhetorical cloud that obscures naked exercise of political power. Yet it is here to stay, it is liable to grow and prospects for its reform are bleak. Those are the themes of this book. In arguing for my stark conclusions, I shall explore how international law is made, how it is discussed, and how it is enforced. In fact, I shall conclude, it is not enforced at all. This book focuses upon the international courts and tribunals that purport to apply international law, and I should warn the reader that my intention is to make those bodies appear effete and futile. I shall also spend some time considering the institutions that create international law. For the most part states, while signatories to international treaties, are not the prime movers behind international law....
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