To say that international law is actually “hidden in plain sight”, conveys the idea that international law is a complex system, following the title of the book “Worlds hidden in Plain Sight” published by the Santa Fe Institute pointing towards the evolution of the idea of complexity.
International law and the whole theory of complexity have some common traits, for one is the insecurity to call it a science, both, for international law and for complexity, we as practitioners of international law, or maybe participants to the dialogue that causes the system of international law to emerge, think of international law as something that is quite difficult to define, is it a science? is it law? is a system? A whole book was destined to answer such questions, the Philosophy of International Law, edited by Samantha Besson and Tasioulas. Such questions also are shared with the Complexity theorists, or, like me fans, is complexity theory just a theory? can we call it a science?, what it is?
I seem to think of international law as a complex system, I see it as Jazz music, it is difficult to determined, but you know it when you are listening to Jazz, although there are different sub-types of Jazz, one is almost certain when listening to Jazz, in other example, you know it when you see it, when I look at international law, I know that I am looking at a complex system, although is quite difficult to explain.
Why it is difficult to explain international law as a complex system? Because we have to depart from the complicated idea that the system “emerges”, that is, the collection of treaties, customary rules, principles of international law, case law, scholarly writings, etc., do nothing by themselves, that is, if you go into an empty room with all the hard and soft sources of international law, they do nothing by themselves, if you happen to print them out, they will acquire dust. Nothing moves.
It needs the interaction of the agents, the ones that say something to another agent in order to achieve a type of end. For the international legal scholars would be to have the next conference at Rio de Janeiro, Puerto Vallarta, Jakkarta, Hong Kong, Dubai, Berlin, I don’t know, to have a conference, because there is the possibility to have a grant, which will perpetuate the possibility of the legal scholars to perpetuate themselves, that is, continue to have a living in an academic field, that requires them to have a symposia, to participate at a given conference and to publish papers. A possible emergent academic behavior of the international legal system to act in a certain way. That is, the academics of international law, not only want to perpetuate themselves, but also, they want to perpetuate the idea that international law is in fact “alive” and exists, so more students learn it, and some of them get excited about it.
Then there are the practitioners who advise the different governments and the different intergovernmental organizations, the whole idea is to perpetuate themselves in their given positions, one has to gain a living, and the system of international law, may help them in doing just that, to advise the governments, how far their actions can be deployed under a certain international legal framework.
These two types of behaviors can be seen from a binary point of view, that is 0, academic, 1, practitioner. And also would depict a selfish behavior, however, and this is an important element, that of asabiya or group cooperation as explained by Peter Turchin and firstly introduced by Ibn Khaldun.
International law to persevere itself as a system, there is the need of high levels of cooperation, by whom? at least by the academics and the practitioners. A type of property that is hidden in plain sight. And that for now is for me impossible to provide an exact evidence.