EL FUNDAMENTO DEL DERECHO INTERNACIONAL: ALGUNAS REFLEXIONES SOBRE UN PROBLEMA CLÁSICO

Several descades ago, legal scholars moved from the philosophical reflection on the essence of international law to the sociological concern on its existence. Notwithstanding, in last years it seems that the old and traditonial question about philosohical bases of international law reappears and recovers strength. International law can not be understood only from a static approach (as system of rules), nor from an exclusively dinamic approach (as process). As the «critical legal studies» movement suggests, international law must be seen, simultaneously, both as a concrete reality and as a normative reality. Unfortunely, one of the main traits of international law is its relativism, and moreover states' power determine and put limits on legal action. Consequently, on the one hand, although international institutions have modified the structure of international society, we should not seek to understand nor to explain international law according to the municipal law model, as if municipal law were the only possible expression of the legal phenomenon. On the other hand, it is also important do not focus on the contrasts between municipal law and international law, because setting up one against the is more an exaggeration and a convenience than a scientific truth. Philosophical bases of the obligatory character of international law is a problem which can never be given up by academic scholars, although it is probably unsolvable it is a problem tinged with political and ideological regards in the changeable attitudes of the different groups of states and with ideological appraisal in respect of the confronted doctrinal sections. The question of bringing up the philosophical bases of international law requires to safeguard the equilibrium between voluntarism and objectivism. In fact, none of both is completely exact. The philosophical bases of international law is not a dichotomy (either voluntarism or objectivism), but a matter of dosage and equilibrium, because none of both can apprehend the essence of international law isolately. While a completely objectivist conception would be a dangerous illusion, an exclusively voluntarit conception would be self-destructive. The ICJ seems to have corroborated this thesis, since it is possible to show in its judicial decisions a subtle combination between objectivism and consensualism. As to the former, it is particulary obvious when the Court applies some principles of international law, which are the jurisprudencial as