The practice of modern international law seems inherently bound up with the quest for a rule of law in international affairs. This commitment to the rule of law at the international level finds expression not merely in academic literature, but has been regularly endorsed by states themselves, particularly in the context of the United Nations. Nevertheless, the pursuit of an international rule of law is an ambition which is constantly frustrated. The institutional structure of the international legal order seems incompatible with this vision, resulting in a constant sense of frustration about the apparently ‘primitive’ or otherwise constitutionally deficient institutional structure of modern international law. In fact, despite the intensification of ‘governance’ through international institutions in the years since the end of the Second World War, it seems like the proliferation and growing normative authority of international institutions more often than not gives rise to more concerns from a rule of law perspective. In this article I not only seek to understand the nature of this rule of law commitment and the reasons for this constant frustration, but in doing so I will argue that the institutional context implicit in the ideal of the rule of law is incompatible with the nature and functioning of international law. I seek to show, in fact, how the perpetual sense of frustration felt in international law’s failure to live up to this ideal stems from the fact that the rule of law is a notion which is implicitly bound up with the political context of sovereign authority within states. To attempt to impose the rule of law outside of this context will not only result in distortion and mischaracterisation, but runs the risk also of legitimising precisely the kind of arbitrary authority which is the main target of the rule of law itself.
In Being and Race Charles Johnson compares a writer working with traditional forms to a martial artist who “honors the form” of his predecessors. In his 1982 novel Oxherding Tale Johnson honors the form of a number of traditional fictional genres, including the slave narrative, the picaresque novel, the philosophical novel of ideas, and Zen texts such as koans, sutras, and the twelfth-century graphic narrative, the “Oxherding Pictures.” Calling his novel a “slave narrative that serves as the vehicle for exploring Eastern philosophy,” Johnson alludes to Hindu, Taoist and Buddhist texts, as well as to Western literary and philosophical works, to dissolve the dualistic thinking at the heart of what he calls “the samsara of racial politics.” To be free of the illusory nature of “ontological dualism,” however, one must journey through stages of increasing awareness, admirably depicted in the ten illustrations of the “Oxherding Pictures.” From seeking a self (ox) that one thinks one has lost, to glimpsing the self that is first elusive and finally illusory, the seeker comes to realize that all identities are constructed and therefore temporary, including such notions as “race” and “self.” Like some biracial Everyman, Johnson’s narrator may not complete the journey by the end of the novel but he discovers much about the insubstantiality and inter-connectedness of himself in the world along the way.
In contemporary debates on the authority of global institutions, there is an important yet often overlooked organisational curiosity: namely, the International Seabed Authority (‘ISA’). The ISA reflects a highpoint in international communitarian governance. Premised around traditional notions of access, control and allocation of deep seabed resources, its mandate is both invariably spatial-temporal, and yet also limited and functional. Its purpose is to govern the extraction of seabed mineral resources for the collective benefit of the international community. To achieve that ambition, however, a highly complex and bureaucratic regulatory structure has been established. In this paper we aim to consider this tension in the mandate of the ISA, particularly insofar as it manifests in aspects of its institutional design and functioning in practice. Recognising these dynamics not only helps one better understand governance of the deep seabed, but also broadly demonstrates the innate tensions in granting institutional control over common spaces.