that diverge from commonly agreed substantive rules, IL in its present state provides formal constraints on the respective arena itself, which act as ‘grammatical rules’ for State interactions that encourage alternative means of resolving inter-State disputes and increase collective gains.[19] Further, by enabling closer cooperation, IL pushes States to become bound within a much more adhesive system that requires hard, multilateral law regardless of its form to prescribe binding regulation. Consequently, IL cannot be perceived as merely being the corollary of State interactions, but intrinsic to them. LIMITED PRESCRIPTIVENESS
Finally, Goldsmith and Posner’s theory is, through their own admission, a deficient prescriptive depiction of IL.[20] By adopting game theory as a tool in analysing how States’ interests are maximized, it is restricted by the fact that reasonable predictions of actors’ behaviours are difficult to make. First, while games such as the prisoner’s dilemma may yield certain levels of predictability when subject to multiple iterations, they are restricted when the total number of States are increased.[21] Second, more complex games, notably the public goods game, illustrate how different interactions can be expected between States, especially when the chief metric is their respective self-interest. An illustration of how this interest-based model is restricted in predicting States’ interactions can be provided using the international community’s resolution on how to treat the deep seabed as a case-study. As States had opportunities to arrive at different final outcomes than the ‘common heritage’ that would have satisfied their respective interests – for instance, apportioning it so that all States would be able to individually make use of its resources – a purely State interest-driven analysis cannot provide a clear answer for why this outcome was reached instead of its alternatives.[22] Indeed, recognising that interests may be collective and long-term can provide further insight into the modern state of IL. CONCLUSION
In conclusion, Goldsmith and Posner’s realist theory of IL – that it is merely the corollary of States’ power and interest-driven interactions – poses more questions than it answers. Goldsmith and Posner challenge liberal and cosmopolitan theories of IL and attempt to show that realpolitik underlies all IL achievements, somewhat comparable to the neorealism advanced by Kenneth Waltz and Henry Kissinger.[23] However, their conceptualisation should be viewed cum grano salis since it is chiefly rooted in a subset of contentious realist assumptions, fails to provide an accurate account of IL’s functions and, what is more, remains an unreliable tool to prescribe IL’s future development.
[19] Aisling O’Sullivan, ‘A Return to Stability? Hegemonic and Counter-Hegemonic Positions in the Debate on Universal Jurisdictions in absentia’, in J Handmaker and K Arts
(eds), Mobilising International Law for ‘Global Justice’ (CUP 2018) 167. [20] Goldsmith and Posner (n 2) 39. [21] Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (OUP 2016) 273–275 for discussion on the game theory criticism of Goldsmith and
Posner’s approach to customary international law. [22] Ranganathan (n 6). [23] See, e.g., Kenneth Waltz, Man, the State, and War (Columbia University Press 1959); Henry Kissinger, Diplomacy (Simon & Schuster 1994); Henry Kissinger, World Order
(Penguin 2014).
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