The Invisible Constitution of Politics: Contested Norms and International Encounters

Abstract

The intersection of international law and international relations has of late become a busy site. While two, three decades ago it was the place where former “law and organization hands” found their refuge and a few unorthodox analysts tried to challenge the predominance of both “realism” as a “theory” and of “positivism” as an adequate epistemology for social reality, the picture has clearly changed. It has changed because of the transformations of international politics, highlighted by the end of the Cold War; the de-nationalization of politics; the emergence of transnational movements with different agendas; and the governance failures of existing international arrangements in virtually all areas ranging from security to the economy and the environment. It is precisely because the traditional key concepts—such as “national interest,” or “normativity” as a function of formality—no longer throw much light on actual practice due to “soft law” and its increasing use, or on the “politics” of human rights, that the disciplinary agendas in law and politics have changed. “Regimes” provided the first bridge for a new encounter beyond the old international law and international organization framework. The judicialization of politics and the disaggregation of the state served as a second bridge; while the third, that is, the one between cosmopolitans and lawyers who advocate the revamping of the existing international organization by a “constitutionalization” move, seems less traveled as it is more an internal dialogue within international law. Perhaps the heterogeneity of interests animating these projects explains this phenomenon.