(2022) 3 TWAIL Review 204-222
Published under a Creative Commons licence.
The concept of ‘state practice’ plays an important role in the creation, interpretation and application of international law. The meaning of the state shapes the concept of ‘state practice’, where international law views the ‘state’ in ‘state practice’ as comprising of only core state institutions. In this paper, we show that, while the mainstream international law conception of the ‘state’ in ‘state practice’ appears as a ‘subject’, a critical conception treats it as a ‘thing’. We refer to Nicos Poulantzas’ view of the state, which helps us go beyond both the mainstream international law conception of the state as a single legal person in international law standing above class conflicts (‘subject’) and the critical conception of the state as an instrument, a passive tool in the hands of a class (‘thing’). Instead, Poulantzas views the state as a social relation. We use this view to critique the concept of ‘state practice’ and argue that: (a) the concept of ‘state practice’ ignores that the actions of the state are often a product of contradictions between different forces within the state; (b) international law fails to recognize that it is only by inquiring into the contradictions between different forces that the specific interests which a ‘state practice’ is serving may be understood; and (c) by ignoring the practices of non-state actors (particularly, dominated groups) international law fails to acknowledge their interests and resistance against the state conduct.