Top-Down, Bottom-Up or the Yin and Yang Metaphor? How to Envision the Global Legal System

Every state looks internally to its constitution for the source of its authority. If in the past sovereigns drew their legitimacy from God, they now invoke their peoples’ right to self-determination. This vision also implies that they are exempt from international obligations unless they have freely consented to them. Such a vision comports with the positivistic theory of international law, which therefore is espoused by governments and some state-dominated courts.

However, this is a myopic vision that fails to notice the other dimension of the bigger picture. Like those who see only one part of the Rorschach test, governments as well as many political thinkers and legal scholars fail to acknowledge the more complex interrelation between the state and the global, between domestic law and international law.

As much as states consent to and thereby create international law, they are also shaped by it. Any sovereign title is contingent on international law and international institutions to recognize and protect it. The law on the creation of states defines statehood and protects states against internal challengers. The prohibitions on the use of force and annexation of foreign territory protect states against external challenges in much the same way as the domestic laws against trespass indirectly demarcate private property. There is a profound symbiosis between the law of sovereignty and the law of occupation which aims to protect it, and the two evolve in lockstep.

Moreover, central fields of international law serve primarily to reinforce domestic laws and institutions against internal challenges: by committing to international human rights institutions, governments preempt political opponents and provide a more secure environment to minorities; by joining the WTO, states are able to avoid or limit the opportunities for capture by domestic interest groups; by codifying international humanitarian law and joining international criminal tribunals, governments increase discipline within their own armed forces. At times, international law may intervene too much, as some say is the case with investment treaty arbitration. In other contexts, as in the case of environmental law, one would have hoped for a more interventionist international jurisprudence. But whether or not the relationship between the domestic and the international is balanced appropriately, the state is as much the creation of international law as it is its source of authority. Indeed, if the national constitution of a state is its legal backbone, international law operates as a shell that provides the state with complementary backing.

The complex legal interdependence between the state and the global, between domestic law and international law, defies any attempt to describe them along a vertical axis, either top-down or bottom-up. One is tempted instead to invoke the metaphor of yin and yang, the two opposite but complementary principles that according to Chinese philosophy shape and regulate all aspects of life. Just as the yang is generated from the yin and vice versa, international law is shaped by states whose powers are in turn shaped by international law. Both sides derive their meaning, purpose and limits from the principle of human dignity.

As lawyers we are trained to look for rigid hierarchical relations. But this training is inadequate for the complex contemporary web of international obligations. Instead, we need to adopt a multi-dimensional framework that also takes into account the horizontal axis, as well as the sense of motion and evolution. These dimensions are integrated into the yin/yang interpretation of the world.

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There are two benefits to rejecting the hierarchical perspectives and adopting a yin/yang-like vision of the national/international legal system. First, the hierarchical vision – either top-down or bottom-up – fails to reflect the complex interrelations within the fragmented legal space that characterizes the complex global legal system. It also fails to convince those who prefer the top-down view that the bottom-up claim makes more sense, and vice versa. As Kelsen suggested, one can argue both ways with equal conviction. The Yin/yang visions reflects the normative claim that both international law and national law are equally grounded in human dignity and equally bound by it.

The second benefit of the yin/yang interpretation of the world is that besides being arguably a more comprehensive way of giving meaning to global events, it also provides at least a rudimentary moral compass for those who make and review policy choices. The inherent inter-dependence it depicts projects the need to take into account the effects of one’s action (or inaction) on the others and to strive to strike a proper balance – whatever that means – between the national and the international.

By emphasizing the profound interrelationship between the national and the international, I wish to offer another ground for viewing states as trustees of humanity in addition to the previous ones on which I elaborated earlier. If sovereigns negotiate their external recognition and respect with the world around them, and seek external protection from internal and external challengers, they must be prepared to provide reasons for their demands. They must also acknowledge their responsibility toward the others.

When asked “Why should states be accountable for their policy choices to the rest of humanity?” the proper retort could well be: “Why not?” The former question is based on an implicit assumption that the state is prior to the global system, and therefore the burden lies on whoever imposes obligations on states to justify this demand. But if the state is both the creator of international law and its creature, both the author of the law and its subject, the state needs to explain its motives (both as author and as subject!). At the same time, and for the same reason, the state is entitled to expect the rest of humanity to provide an account for its reaction.