The Law-Realizing Process

A Cognitive and Interpretative Framework

Abstract

International legal studies have generally divided the legal process into two: creation and application of international law. Within this general framework, research has advanced along various tracks: (1) the study of legal or normative consciousness in international society, often expressed as opinio juris; (2) the study of creation of international law, which is composed of customary norms and treaty norms; (3) interpretative studies of the rules and principles of existing international law; (4) the study of jurisprudence of the judgments of the ICJ and arbitral awards; (5) the study of international disputes and their settlements through international law; and (6) domestic implementation of international law mainly through domestic courts.
However, it is difficult to grasp the international legal phenomena in their totality via these studies, because international lawyers generally conduct these studies independently hardly taking other studies into consideration. In order to grasp the dynamics of the totality of international legal phenomena, we need a theoretical framework through which we can observe a comprehensive process of how international law is realized from a vague normative consciousness and/or from the birth of a strong interest that requires a particular form of law to realize it. We want to see how this coalescent idea or interest becomes more defined as it progresses toward the assertion of lex ferenda, to the negotiation and drafting of a treaty, to its adoption and ratification by state parties, to its introduction into the domestic system of the state parties and its actual realization in their domestic political, economic, social and cultural processes. We may call this comprehensive process a "law-realizing process."
To operationalize this concept of a law-realizing process, we need three perspectives from which we may observe international legal phenomena: international, transnational and trans-civilizational. The international perspective mainly pays attention to inter-state, i.e., trans-governmental activities. The transnational perspective is concerned with transnational activities of non-state actors, mainly corporations and NGOs. The trans-civilizational perspective pays attention to various cultural, religious, linguistic and historical factors that are often overlooked by basically West-centric international and transnational perspectives.
With these three perspectives, we seek to grasp international legal phenomena by basically categorizing them into two groups: (1) the law-realizing process of reciprocal norms such as the norm regulating the width or the boundaries of a territorial sea, and (2) the law-realizing process of norms embodying international public values. The interpretative undertaking of international lawyers themselves constitutes one phase of the law-realizing process, and as such, is an object of critical analyses of this law-realizing process.