在政治与伦理之间:本体维度的国际法

国际法性质的认定对于探究国际法理论与实践操作均有重要的指导意义。奥斯丁认为国际法不是“真正意义上的法”而仅是“实证道德”的观点引起了长期的争论,这恰恰揭示了问题界定本身的不正确性,正确的问题应当是“国际法是什么法”。为了解国际法的性质,有必要分析国际法规范的具体运行。在这一问题上,自然法学派、实证法学派、现实主义、自由主义和建构主义的国际关系理论给出了不同的解读。同时,观察和比较国际法与国际政治、全球伦理的关系也有助于厘清国际法的本质。在一个仍然处于无政府状态的国际社会,国际法不可避免地体现为分散、协定、软弱、不对称的初级性法律,这是思考各方面国际法律问题的起点和基本语境。

Between Politics and Ethics: The Ontological Dimension of International Law

Properly defining the nature and characteristics of international law (IL) is not only important for theoretical discussions but also crucial for practical application of IL. This essay, deploying various understandings on IL in legal theory and theories of international relations (IR), investigates this issue with an inter disciplinary approach of IL and IR. This essay reviews the controversy on whether IL is truly law, and after inquiring the viewpoints of John Austin and his opponents, the author proposes that to examine ″whether IL is law″ may be misleading, since the question itself is not rightly defined. The nature of IL may only be well understood by a comprehensive study of different schools of legal theory and IR, as well as a focus on the reality of international legal process. The natural law theory contributes to IL in at least two aspects: first, law should be discussed not only as it is (lex lata), but also as it should be （lex ferenda）; second, IL should be universal. The positive legal theory suggests that we pay attention to the practices by states and other actors of IL in addition to rules per se. Realists in IR stress the powers of states, which is helpful for a clear understanding of the application of IL in world politics. The study of international regime by neo-liberalists in IR can enlighten us on the origin of IL. Constructivism in IR helps international lawyers to explore the nature of international law within a social framework of international community. With all the above-mentioned theories, the author attempts to stress the significance of understanding IL from the perspectives of politics, ethics, and sociology.Though IL is heavily influenced by political power, it is independent and not purely moral in its practice, and it definitely calls for global ethics in the age of globalization. The author tries to conceptualize IL in the following four dimensions: (1) IL is highly decentralized. This is mainly because IL is the legal phase of IR and the basic nature of IR is anarchy. Thus there is no unified legislature, law enforcement agency and judicial organ for IL. IL exists basically in the form of treaties and customs, most of which are lex specialis instead of lex generalis. It is quite clear that there is no generally accepted normal hierarchy in the international legal system, and the ″constitutional system″ of IL is just a blueprint. (2) IL is law by agreement. If a domestic law could be defined by external rules, then IL is internal, i.e., the actors in the domestic legal system just accept the established norms; on the contrary,the actors (mainly states) of IL,in most cases, have to set up norms for themselves. In this sense,IL is the rule that the state is supposed to follow. If there is no agreement from the states, it is hard to establish obligation for them. (3) IL is weak law. There is hardly any compulsory enforcement and judicial system for international law as domestic law. (4) IL is asymmetric. It is notable that in recent decades international organizations have developed quickly and that new mechanisms such as dispute resolutions, tribunals and punishing measures are established. However, these measures are plausible on surface but not fair in essence because big powers may easily evade legal punishments while small countries may be punished even when there is no evident violation of IL. Therefore, IL may be defined as the ethical guidelines for political games and the political constraints on ethical values. The author takes the position that IL today is still a primitive legal system, but it is necessary for us to see it from a historical perspective. The past century has witnessed the fundamental progress in IL, and the international structure has been changed from imperialism to equality among sovereign states, at least in name. With the improvement of international democracy and multiple governance, IL will be more systematic, more strictly enforced, and more equally complied with, and the ideal of international rule of law will be steadily realized.