The Reality of Private Rights, Duties, and Participation in the International Legal Process

In a realistic and descriptive sense, international law is a complex and dynamic legal process profoundly interconnected with regional and domestic legal processes throughout the globe. There are no single sources or evidences of international law; no single set of participants; and no single arenas or institutional arrangements for the creation, invocation, application, change or termination of such law. Like all human law, it is full of human choice and rich in individual and group participation and inter-affectation. Awareness of this reality can have significant consequences with respect to identification of international legal norms, realistic meaning or content, remedies, and possible sanction strategies. The reality of international law might function in ways opposed to certain theoretic constructs, limiting preferences or biases, and individual psychic needs. Realism more generally is especially opposed to a rigid state-oriented positivism and its favored, even dangerous, consequences. Indeed, realist orientations to international law might be threatening to those with a pretense of power, to those who prefer some unobtainable stability (or perhaps merely their own specially favored value positions), and to domestic governmental elites (and those eager to serve them) who are anxious to argue that they should control both the content and application of law. Awareness of international law as a process involving numerous participants can also help one to avoid limitations inherent in simple “horizontal” or “vertical” theoretic models; can enhance recognition of various overlapping and interstimulating normative and sanction processes; and can enhance recognition of and actual and potential patterns of participation by international and regional institutional, state, nation, corporate, private individual, and other actors.