What is International Law for?

1 WHAT IS INTERNATIONAL LAW FOR? Martti Koskenniemi 1. The Paradox of Objectives Attempting to answer the question in the title one meets with a familiar paradox. On the one hand, it seems indisputable that international law "has a general function to fulfil, namely to safeguard international peace, security and justice in relations between States".1 Or as Article 1 of the UN Charter puts it, the organisation has the purpose to "be a centre for harmonizing the actions of nations in the attainment of […] common ends" such as international peace and security, friendly relations among nations, and international co-operation. Such objectives seem self-evident and have never been seriously challenged. On the other hand, it is hard to see how or why they could be challenged - or indeed why should one be enthusiastic about them - because they exist at such high level of abstraction as to fail to indicate concrete preferences for action. What do "peace", "security" or "justice" really mean? As soon as such words are defined more closely, disagreement emerges. To say that international law aims at peace between States is perhaps already to have narrowed down its scope unacceptably. Surely it must also seek to advance "human rights as well as the rule of law domestically inside States for the benefit of human beings…".2 But what if advancing human rights would call for the destruction of an unjust peace? In the end, very little seems to depend on any general response to the question "what is international law for?". 1 Christian Tomuschat, 'International Law: Ensuring the Survival of Mankind on the Eve of New Century. General Course on Public International Law', 281 RdC (1999) p. 23. 2 Ibid.  2 The real problem seems always to be less about whether there should be "peace", "security" or "human rights" than about how to resolve interpretative controversies over or conflicts between such notions that emerge when defending or attacking particular policies. There is no disagreement about the objective of peace in the Middle East between Israel and the Palestinian people. But if enquired what "peace" might mean for them, the protagonists would immediately give mutually exclusive answers. Nor is the "Asian values" debate about "for" or "against" human rights but what might such rights be and how they should be translated into social practices in the relevant societies. To enquire about the objectives of international law is to study the political preferences of international actors - what it is that they wish to attain by international law. And because those preferences differ, the answer to the question in the title can only either remain controversial or then be formulated in such broad terms as to contain the controversy within itself - in which case it is hard to see how it could be used to resolve it. It would therefore be wrong to think of the paradox of objectives as a technical problem that could be disposed of by reflecting more closely on the meaning of words such as "peace", "security" or "justice" or by carrying out more sophisticated social or economic analyses about the way the international world is. Such notions provide an acceptable response to the question "what is international law for?" precisely owing to their ability to gloss over existing disagreement about political choices and distributional priorities. If they did not work in this way, and instead permanently preferred some choices over other choices, they would no longer be able to do the service we expect of them. In accordance with the founding myth of the system, the Peace of Westphalia in 1648 lay the basis for an agnostic,  3 procedural international law whose merit consisted in tolerance for the religious ideas that had torn Europe in the past. It would treat all nations as sovereign equals, regardless of their religious or constitutional system.3 Since then, international law has occasionally been accused of having taken sides - to support European supremacy in the colonies or to uphold the privileges of the Great Powers in the UN Security Council, for example. The point of such critiques has been to vindicate Westphalia, to show that in some respect the law has failed to live up to the ideal of neutrality. In other words, international law receives acceptability from its not seeking to impose any external normative ideal on the international society. The objectives of that society arise from itself: there are no transcendental notions of the good that international law should realise. If there is an "international community", it is not a teleological but a practical association, a system not designed to realise ultimate ends but to co-ordinate practical action between existing communities.4 Sovereign equality builds on this: because there are no natural ends, every member of the international society is free to decide on its own ends, and to that extent, they are all equal. The law that governs them is not natural but artificial, created by the sovereigns through the processes that are acceptable because neutral.5 It follows that the objectives of international law cannot be 3 For the standard history, cf. e.g. Robert Redslob, Histoire des grands principes du droit des gens (Paris, Rousseau, 1923) p. 213-217. The interesting point that instead of agnosticism, Westphalia vindicated Protestant theology's personalised view of humanity's relationship to God, is discussed in Daniel Philpott, Revolutions in Sovereignty. How Ideas Shaped Modern International Relations (Princeton University Press, 2001) p. 136-149. 4 This is why it is so easy to discuss it in terms of the ethics of Immanuel Kant, an ethics of universalisable principles of right action rather than as instrumental guidelines for attaining the Good. Cf. e.g. Onora O'Neill, Bounds of Justice (CUP, 2000). 5 Cf. e.g. Terry Nardin, Law, Morality and the Relations between States (Princeton University Press, 1983).  4 dissociated from the objectives of the members of the international society. The law is the form that covers the substance of what they want. To say that international law is for "peace", "security" and "justice" is to say that it is for peace, security and justice as agreed and understood between the members of the system.6 What this means for international legal argument can be gleaned, for instance, from the opinion of the International Court of Justice in the Reservations case (1951). Here the Court was called upon to examine the admissibility of reservations to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Court first outlined what seemed a natural consequence of the principles of neutrality and sovereignty, namely that no reservation should be effective against a State that has not agreed to it. To stay with this understanding, however, might have undermined the Convention by creating a system in which some reservations were in force in regard to some States (namely those accepting them) but not against others while each non- accepting State would be free to regard the reservation- making State as not a party to the Convention at all. This would have gone against the universal nature of the Convention. Thus, the Court continued, a State having made a reservation that has been objected to by some of the parties, may still be held a party to the convention if the reservation is compatible with the “object and purpose” of the Convention. At this point, then, the Court moved to think 6 Louis Henkin, 'International Law: Politics, Values and Functions. General Course on Public International law', 216 Recueil des cours (1989) writes that instead of "human values", the system is centred upon "State values", p. 109. This polemical contrast undermines the degree to which States - including principles of sovereignty and non-interference - find their moral justification in late 18th century liberal individualism and the ideal of national self-rule: "State values" persist because they channel "human values" within a political community. See also Andreas Paulus, Die internatinale Gemeinschaft im Völkerrecht. Eine Unitersuchung zur Entwicklung des Völkerrechts im Zeitalter der Globalisierung (Munich, Beck, 2001) especially p. 69-97.  5 of the law expressly in terms of its objectives. However, there were no objectives to the Convention that were independent from the objectives of the parties to the Convention. Thus, it was up to each party to make the determination "individually and from its own standpoint".7 Such an argument defines the objectives of international law in terms of the objectives of the (sovereign) members of the international society - in this case the society formed by the parties to the Genocide Convention - bringing to the fore two types of problems: what will happen in case the States disagree about the objectives? And why would only State objectives count? 2. Converging interests? If no antecedent order establishes a firm priority between what States want, then the controversy either will have to remain open or we shall have to assume that the procedure in which the disagreement is revealed is somehow able to dispose of it to the satisfaction of all. The latter suggestion embodies the idea of the "harmony of interests", the presence of an underlying convergence between apparently conflicting State interests. Under this view, any actual dispute would always be only superficial. At a deeper level, State interests would coalesce and the objective of international law would then be to lead from the former level to the latter.8 7 ICJ, Reservations to the Genocide Convention, Reports 1951 p. 26. 8 This argument, always implicit in moral objectivism and theories of natural law, was made in a dramatic way by Hersch Lauterpacht, speaking at Chatham house in 1941, as bombs were falling over Coventry and his family was being transported to ghetto in Poland: "The disunity of the modern world is a fact; but so, in a truer sense, is its unity. Th[e] essential and manifold solidarity, coupled with the necessity of securing the rule of law and the elimination of war, constitutes a harmony of interests which has a basis more real and tangible than the illusions of  6 It has been difficult to defend this view against realist criticisms. Why would harmony, instead of conflict, be the true nature of politics? What evidence is there that, rightly understood, the interests of States are compatible? Might the harmony not rather seem a form of wishful thinking that prevents people from clearly seeing where their interests lie, and acting accordingly? Hans Morgenthau, one of the fathers of realist thought, attacked the inter-war legalism behind the League of Nations precisely for having made this mistake. To believe in harmony under the League had left the world unprepared for Hitler's aggression in 1939.9 E.H. Carr, another powerful realist thinker, described the harmony as an ideological smokescreen. "Biologically and economically, the doctrine of the harmony of interests was tenable only if you left out of account the interest of the weak who must be driven to the wall, or called in the next world to redress the balance of the present".10 International lawyers have responded to such criticisms in two ways. Many have accepted the marginal scope that power leaves for law and defined the legal regimes as variables dependent on a central power (hegemon),11 or developed purely instrumental accounts of the use of law in the defence of particular interests or preferences.12 Others have sought to the sentimentalist or the hypocrisy of those satisfied with the existing status quo. The ultimate harmony of interests which within the State finds expression in the elimination of private violence is not a misleading invention of nineteenth century liberalism.", 'The Reality of the Law of Nations', in International Law, being the Collected Papers of Hersch Lauterpacht, vol. 2 (1975) p. 26. 9 Cf. Hans Morgenthau, 'Positivism, Functionalism, and International Law', 34 AJIL (1940) p. 261-284. 10 E.H. Carr, The Twenty-years' Crisis 1919-1939 (London, Macmillan, 1991 [1946])p. 50. 11 Cf. Wilhelm Grewe, The Epochs of International Law (transl. by Michael Byers, Berlin, De Gruyter, 2001). The classic, however, is Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (3rd edn., Berlin, Duncker & Humblot, 1988). 12 Cf. Myres S. McDougal, 'International Law, Power and Policy. A Contemporary Conception', 82 RdC (1953-I) p. 137-259.  7 articulate the harmony under a more elaborate interdependence or globalisation theory. "International trade and commerce, international finance, international communication - all are essential to the survival of States, and all require an international legal system to provide a stable framework within which they may function".13 Institutional, procedural and even linguistic theories have been used argue that even the articulation of State interests is based on an internalisation of legal notions such as "sovereignty", "treaty" and "binding force" that delimit and define what may count as State interests or even State identity in the first place.14 But the opposition between "realism" and "idealism" is only of limited heuristic usefulness. The labels invoke contrasting political sensibilities and different jurisprudential techniques that often emerge into each other. Even the hardest "realism" reveals itself as a moral position (for example by highlighting the priority of the national interest) inasmuch as, "philosophically speaking, realism is unthinkable without the background of a prior idealistic position deeply committed to the universalism of the Enlightenment and democratic political theory".15 On the other hand, any serious idealism is able to point to aspects of international reality that support it, and needs such reference in order to seem scientifically credible. Much of 13 Sir Arthur Watts, 'The Importance of International Law', in Michael Byers (Ed.), The Role of Law in International Politics. Essays in International relations and International Law (Oxford University Press, 2000) p. 7. 14 This is the "constructivist" explanation of international law's impact on States, much used today in international relations studies. Cf. e.g. Martha Finnemore, National Interests in International Society (Cornell University Press, 1996). For a discussion, cf. also Jutta Brunnee & Stephen J. Toope, ‘International Law and Constructivism: Elements of an Interactional Theory of International Law’, 39 Col. J.Transnat.l L. (2000) p. 19-74 and Friedrich Kratochwil, 'How Do Norms Matter?', in Byers, supra note Error: Reference source not found, p. 55-59. 15 Stefano Guzzini, Realism in International Relations and International Political Economy (London, Routledge, 1998) p. 16.  8 the controversy is about political preference, including the question what element of a many-faceted "reality" should be chosen as the starting-point of one's analysis. Disciplinary progress has occurred by recurrent cycles of lawyers rejecting the previous generation as either "idealist" (typically because excessively "formalist") or as "realist" (typically because too impressed by sovereignty) and the corresponding critiques are as available today as they were a century ago. Care must be taken not to associate any legal position or doctrine permanently with either: idealism and realism they are best understood as forms of critique and channels for institutional reform in accordance with particular political agendas, disciplinary manoeuvring rather than qualities of an independent international world.16 This is not to say that international law should be understood as mere ideology. In practice, it is often helpful for the limited resolution of conflicts so as to attain temporary accommodation rather than final settlement. This is why the General Assembly, after all, posed its question to the ICJ in the Reservations case in the first place. The Court was not asked to rule on the admissibility of particular reservations but to indicate how to go about implementing the Convention so as to minimise any distorting effect that controversial reservations might have. Many lawyers make a more low-keyed defence of international law in terms such practical effects. However neutral in regard to political principles, they would say, the structure not devoid of normative direction. In their view, international law is accompanied by a cunning logic that slowly socialises initially egoistic States into the law's 16 This is one of the central arguments in my From Apology to Utopia. The Structure of International Legal Argument (Helsinki, Finnish Lawyers' Publishing Company, 1989).  9 internationalist spirit.17 It is possible (though not necessary) to picture this ethic as the "inner morality of law" that accompanies any serious commitment to work in a legal system.18 An alternative but parallel way would be to characterise the system in terms of a culture shared its administrators and experts, a "culture of civility" excluding certain types of secrecy, dishonesty, fraud or manipulation. Such an explanation highlights international law's emergence in the late 19th century as an aspect of optimistic evolutionism among the liberal elites of Europe and North America. The profession has often imagined international law as a process of education, of Bildung, during which States and their representatives come to define not only their objectives but even their identity by reference to principles offered by international law.19 3. The significance of statehood But the Westphalian myth leaves also unexplained why would only State objectives count. At least since Immanuel Kant published his essay on the Perpetual Peace (1795), philosophers, political theorists and lawyers have routinely challenged the State-centrism of the international system, arguing that whatever instrumental value States may have for the co-ordination of affairs of particular communities, the "ultimate" members of those communities are individuals and 17 A defence of the view that law socialises States not by constraint but by "compliance strategies [that] seek to remove obstacles, clarify issues, and convince parties to change their behavior", as well as by "various manifestations of disapproval: exposure, shaming, and diffuse impacts on the reputations and international relationships of a resisting party", is Abraham Chayes and Antonia Handler Chayes, The New Sovereignty. Compliance with International Regulatory Agreements (Harvard University Press, 1995) (p. 109, 110). 18 The point about law necessarily containing certain "aspirations of excellence" without which an order would not be recognised as "law" in the first place, is made, of course, in Lon L. Fuller, The Morality of Law (Yale University Press, 2nd, rev. ed. 1969) especially p. 41-94. 19 Cf. my The Gentle Civilizer of Nations. The Rise and Fall of International law 1870-1960 (Cambridge University Press, 2001).  10 that many other human groups apart from States ("peoples", "nations", "minorities", "international organisations", "corporations") also play important roles.20 Globalisation and the crisis of sovereignty have intensified the criticisms of the nature of international law as State law from sociological, functional and ethical standpoints. These critiques have often sought to project a material value or an idea of social justice outside statehood that they have suggested should be enforced by international law.21 The universalising vocabularies of human rights and liberalism, economic and ecological interdependence have no doubt complicated inter-sovereign law by the insertion of public law notions such as jus cogens and "obligations owed to the international community as a whole" and by "fragmenting" the international system through the fluid dynamics of globalization (cf. section 8 below). But it has not been replaced by something recognizeably non-Westphalian. None of the normative directions - human rights, economic or environmental values, religious ideals - has been able to establish itself in a dominating position. On the contrary, what these values may mean and how conflicts between them should be resolved is decided largely through "Westphalian" institutions. This is not to say that new institutions would not enjoy a degree of autonomy from the policies of States. Human rights and many economic and environmental regimes provide examples of such. The European Union has developed into an autonomous system that functions largely outside the frame of international law. How far these other regimes are from that of the EU can, however, be gleaned from the recent characterisation of the GATT/WTO system by the Appeals Body in the Asbestos case 20 Cf. e.g. John Westlake, International Law (2nd ed, vol. 2, Cambridge University Press, 1910) p. 16. 21 For a review and assessment, cf. e.g. Martti Koskenniemi, 'The Wonderful Artificiality of States', ASIL Proceedings 1994, p. 22-29  11 [QUOTE] This outlook was reaffirmed by the International Court of Justice in the Nuclear Weapons opinion in 1996. In response to the question about the lawfulness of the threat or use of such weapons, the Court concluded that whatever the consequences, it could not exclude that such use would be lawful "in an extreme circumstance of self-defence, when the very survival of a State would be at stake".22 State objectives and State survival remain the highest objectives of the system. Likewise, bodies such as the European Court of Human Rights or the UN Human Rights Committee recognise that the treaties they administer function in a State-centred world: the margin of appreciation and the wide scope of derogations allowed for national security reasons if "necessary in a democratic society" operate with notions of "security" and "democracy" that are embedded in a world of States.23 But the defence of international law's state-centredness is thoroughly practical. "Stated quite simply", James Brierly wrote in 1944, "what [international law] tries to do is to define or delimit the respective spheres within which each of the … States into which the world is divided for political purposes is entitled to exercise its authority".24 Little of this justification has changed. A form and a process is 22 ICJ, Threat or Use of Nuclear Weapons case, Reports 1996 paras 96 and 105 (E). 23 Or in other words, these mechanisms are only subsidiary: "The [European Convention on Human Rights] leaves to each contracting State...the task of securing the rights and freedoms it enshrines", ECHR, Handyside case, A.24, para 48. As Susan Marks points out liberal reformers conceive of "democratisation" in terms of reform of domestic (and not international) institutions, The Riddle of All Constitutions. International Law, Democracy and the Critique of Ideology (Oxford University Press, 2000) p. 76-100. 24 James Brierly, The Outlook for International Law (Oxford University Press, 1944) p. 9.  12 needed that channels interpretative conflicts into peaceful avenues. This is not to say that non-State values such as "human rights", "efficient economies", "clean environment" or "justice" would be unworthy objectives of political action. Disagreement about them provides the life and blood of political community. The defenders of the State-system would only note that such values conflict and that "States alone have provided the structures of authority needed to cope with the incessant claims of competing social groups and to provide public justice essential to social order and responsibility".25 States may be set aside, of course, by consent or revolution but there are dangers in such transformations, some of which are well-known, and something about those dangers results from the teleological nature of the community they celebrate. On the other hand, there is no doubt that international politics is far from the Westphalian ideal. The informal networks and epistemic communities that influence international developments beyond the rigid forms of sovereign equality are populated by experts from the developed West. It is hard to justify the attention given and the resources allocated to the "fight against terrorism" in the aftermath of the attacks on New York and Washington in September 2001 in which nearly 3000 people lost their lives, while simultaneously 6 Million children under 5 years old die annually of malnutrition by causes that could be prevented by existing economic and technical resources.26 What becomes a "crisis" in the world and will involve the political energy 25 Oscar Schacter, 'The Decline of the Nation-State and its Implications for International Law', 35 Col. J. of Transn'l L. (1997) p. 22. 26 'The State of Food Insecurity in the World 2002', cf. http://www.fao.org/DOCREP/005/Y7352e/Y7352e00.HTM (last visited 24 October 2002).  13 and resources of the international system is determined in a thoroughly Western-dominated process.27 It is widely believed that the informal and fluid economic, technological, and cultural processes termed "globalization" strengthen the political position of the most powerful actors - transnational networks large corporations, Western developed States - and marginalise public international law.28 Weak States despair over their inability to hold on to achieved positions and privileges by the antiquated rhetoric of sovereignty. But the latter's awkward defence of the conservative system of sovereign equality undermines the extent to which globalization may also open avenues for contestatory transgovernmental action within the international civil society, or by what Hardt and Negri call the "multitude".29 There is room for conflict and consensus both within and beyond the Westphalian system and that little political worth lies in deciding a priori in favour of either. Formal rules as well as anti-formal objectives and standards may each be used for progressive or conservative causes.30 The choice of technique must reflect a historically informed assessment of the effect of particular institutional alternatives. In the following sections I will try respond to the question "what is international law for?" by describing its role in a world that is not one of a pre-established harmony or struggle but of both co-operation and conflict. I will argue 27 Cf. Hilary Charlesworth, 'Internatiional law: A The Discipline of Crisis', 65 Modern Law Review (2002) p. 377-392. 28 Cf. e.g. Andrew Hurrell & Ngaire Woods, Inequality, Globalization and World Politics (Oxford University Press, 1999). 29 Michael Hardt & Antonio Negri, Empire (Harvard University Press, 1999) especially p. 393-413. 30 For the varying use of the rule/principle opposition in self- determination arguments about change, participation and community, cf. Karen Knop, Diversity and Self-Determination in International Law (Cambridge University Press, 2002) p. 29-49.  14 that international law operates - and should operate - as a relatively autonomous formal technique as well as an instrument for advancing particular claims and agendas in the context of political struggle. If international law as a system seeks the assent of States by claiming rigorous impartiality, as a profession and a sensibility, it has been unabashedly partial in favour of universal objectives beyond the State. Such objectives can be advanced only by two means: imposition or inclusion. There is no third alternative. Much instrumental thinking about international law today adopts the point of view of the decision-maker in a relatively prosperous State or transnational network, in possession of resources and policy-options and seeking guidance on how to fit its objectives with international legality. Clearly, international law exists "for" such decision-makers. But it should not exist exclusively for them. In this essay I shall try explain why there is often reason to adopt a "formalist" view on international law that refuses to engage with the question of its objectives precisely in order to constrain those in powerful positions. But I shall also argue that the question "What is International Law For?" needs to be removed from the context of legal routines to the political arenas in which it might be used to articulate claims by those who are sidelined from formal diplomacy and informal networks and feel that something about the routines of both is responsible for the deprivations they suffer. 4. Into pragmatism? The paradox of objectives shows that the formal law of Westphalia cannot be replaced by social objectives or ethical principles without invoking controversies that exist in regard to the latter. "Whoever invokes humanity wants to  15 cheat" Carl Schmitt once wrote,31 citing the 19th century French socialist Pierre Joseph Proudhon and making a useful point about the use of abstract humanitarianism to label one's political adversary as an enemy of humanity so as to justify extreme measures against him - a point that applied in today's context "lacks neither lucidity nor relevance".32 One need not think only of the extreme case of the "war against terrorism" to canvass the slippery slope from anti- formal reasoning to human rights violation. Quite everyday legal argument assumes the analytical priority of the reasons for the law over the form of the law in a fashion that underwrites Stanley Fish's perceptive dictum: "once you start down the anti-formalist road, there is no place to stop".33 For example, the right of self-defence under Article 51 of the Charter is formally conditioned by the presence of an "armed attack". But what about the case of a threat of attack by mass destruction weapons? Here we are tempted to look for guidance from the objective of Article 51. The rationale for allowing self-defence lies, presumably, in the objective of protecting the State. Surely we cannot expect a State to wait for an attack if this would bring about precisely the consequence - the destruction of the State - that the rule was intended to prevent. Because the rule itself is no more valuable than the reason for its existence, we erase the condition of prior armed attack and entitle the State to act in an anticipatory way. Or the other way around: surely formal sovereignty should not be a bar for humanitarian intervention against a tyrannical regime; in oppressing its own population, the State undermines its sovereignty. We 31 Carl Schmitt, The Concept of the Political (Transl. and Intr. by George Schwab, The University of Chicago Press, 1996) p. 54. 32 Jean-Francois Kervégan, 'Carl Schmitt and "World Unity"', in Chantal Mouffe (Ed.); The Challenge of Carl Schmitt (London. Verso, 1999) p. 61. 33 Stanley Fish, Doing What Comes Naturally. Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Oxford University Press, 1989) p. 2.  16 honour "sovereignty" as an expression of a people's self- rule. If instead of self-rule there is oppression, then it would seem nonsensical to allow formal sovereignty to constitute a bar for intervening to support the people.34 In other words, we do not honour the law because of the sacred aura of its text or origin but because it enables us to reach valuable human purposes. We follow the emission reduction schedule of chlorofluorocarbons (CFCs) in Article 2 of the 1987 Montreal Protocol on the Protection of the Ozone Layer because we assume that will reduce the depletion of the ozone layer and the incidence of skin cancer. We honour the domestic jurisdiction clause in Article 2(7) of the UN Charter because we assume it upholds the ability of self- determining communities to lead the kinds of life they choose. But what if it were shown that ozone depletion or skin cancer bears no relationship to the emissions of CFC's, or that domestic jurisdiction merely shields the arbitrary reign or tyrants? In such cases we would immediately look for an equitable exception or a counter-rule so as to avoid applying the original rule in a way that might undermine the reason for why it was enacted. Article 10 (1) of the European Convention on Human Rights provides for freedom of speech. If applying the right would enable the distribution of fascist propaganda, it is always possible to interfere to prohibit it by the counter-rule in Article 10 (2) that enables the "prevention of disorder or crime" and to ensure "the protection of morals" with the margin of appreciation lying with State authorities. To enable those authorities to protect "national security" is indispensable in order to secure the liberal right-regime. Yet, because the setting of the "balance" between security and rights lies with the 34 This position is often combined with the argument for pro-democratic intervention. For useful analysis, cf. Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford University Press, 2001) p. 88-111.  17 authorities against whom the rights-regime was established, the door to abuse remains open.35 We often allow the reason for the rule to override the rule. We do this because we believe the rule itself has no intrinsic worth. If it fails to support the purpose for which it was enacted - or worse, prevents its attainment - why should it be honoured? In the domestic society, abstract law- obedience can be defended in view of the routine nature of the cases that arise, and the dangers attached to entitling citizens to think for themselves. Such arguments are weak in the international realm where situations of law-application are few, and the disadvantages of obedience often significant. Few States that were economically or politically dependent on Iraq implemented the sanctions set up in 1990. Though they were in formal breach of Articles 25 and 48 of the Charter, the UN preferred to look the other way. The European Union is not going to give up the prohibition of importation of hormone meat merely because a WTO dispute settlement organ may have decided it should do so. The importance of the interest in living peacefully with a powerful neighbour and of deciding on national health standards so vastly overweighs any consideration about the importance of abstract law-obedience.36 And yet, as the argument by Schmitt shows, there is a dark side to such anti-formalism. A legal technique that reaches directly to law's purposes is either compelled to think that it can access the right purpose in some politics-independent fashion - in which case it would stand to defend its implicit moral naturalism - or it transforms to a licence to those 35 Cf. Ian Cameron, National Security and the European Convention on Human Rights (Stockholm, Iustus, 2000) p. 62-68. 36 Cf. also Martti Koskenniemi, 'Solidarity Measures: State Responsibility as a New International Order?' BYIL (2001) (forthcoming).  18 powers in position to realise their own purposes to do precisely that. Instrumentalism inculcates a heroic mindset: we can do it! It is the mindset of well-placed, powerful actors, confident in their possessing the "right" purpose, the mindset that drove Stalin to collectivization, or Israel to destroy the Osiraq nuclear power plant in 1981. Instrumental action may or may not be acceptable in view of the circumstances. But the instrumentalist mindset creates a consistent bias in favour of dominant actors with many policy-alternatives from which to choose and sufficient resources to carry out their objectives.37 To look always for reasons, instead of rules, liberates public authorities to follow their reasoning, and their purposes - hence their frequent aversion against rules in the first place: the International Criminal Court, disarmament or human rights treaties, environmental or law of the sea regimes, and so on.38 The difficulty with the instrumentalist mindset is that there never are simple, well-identified objectives behind formal rules. Rules are legislative compromises, open-ended and bound in clusters expressing conflicting considerations. To refer to objectives is to tell the law-applier: "please choose". There is no doubt that Article 2 (4) of the UN Charter aims towards "peace". Yet it is equally certain that "peace" cannot quite mean what it seems to say. It cannot mean, for instance, that nobody can ever take up arms. "Perhaps the most serious problem with outlawing force is that sometimes it is both necessary and desirable."39 Articles 42 and 51 of the UN Charter expressly allow for the use of military force under the authority of the Security 37 For a description of instrumentalism as a culture, cf. Guyora Binder, 'Beyond Criticism', 55 U. Chi. L.R. (1988) p. 906-909. 38 Cf further Michael Byers & Georg Nolte, International Law and the Single Superpower (Oxford University Press, forthcoming 2003). 39 Watts, supra note Error: Reference source not found p. 10.  19 Council or in pursuance of the inherent right of self- defence. The positive law of the Charter is both pacifist and militarist - and receives its acceptability by such schizophrenia. The European Convention on Human Rights seeks to protect individuals' rights to both freedom and security. But one's freedom conflicts with another's security. Whether or not authorities should be entitled to censor prisoners' letters or prohibit the publication of obscene materials, for instance, cannot be reached through instrumental reasoning that would be independent from a political choice.40 The will of the drafters is the language of the instrument. Beyond that, there is only speculation about what might be a good (acceptable, workable, realistic, or fair) way to apply it. Practitioners usually understand international law as being more about routine application of standard solutions, ad hoc accommodation and compromise than discourse about large objectives. Providing advise to a non-governmental organization or drafting judgements at the International Court of Justice are usually held to require pragmatic reconciliation of conflicting considerations, balancing between "equitable principles", conflicting rights, or other prima facie relevant aspects of the case at hand. Dispute- resolution during the dissolution of the Former Yugoslavia in the early 1990's was understood to involve conflicting considerations about stability of frontiers and expectations of justice on the part of the different protagonists. This required the management of the uti possidetis principle as against provision for minority rights for populations left on the wrong side of the boundary.41 The balance between these considerations was not received from any anterior directive 40 Cf. further, Martti Koskenniemi, 'The Effect of Rights on Political Culture', in Philip Alston, The EU and Human Rights (Oxford University Press, 2000) p. 99-116. 41 Cf. Opinions 2 and 3 of the Arbitration Commission of the Peace Conference on the Former Yugoslavia, 31 ILM (1992) p. 1497-1500.  20 but from the decision-maker's pragmatic assessment of what might work.42 At the European Court of Human Rights, individual freedoms are constantly weighted against the need of interference by public authority. In regard to pacific enjoyment of possession or protection of private life, it is established case-law that "an interference must achieve a 'fair balance' between the demands of the general interests of the community and the requirements of the protection of the individual's fundamental rights".43 In a like manner, the law concerning the delimitation of frontier areas or the sharing of natural resources comes about as a more or less flexible cluster of considerations about distributive justice - sometimes described in an altogether open-ended fashion in terms of "equitable principles" or "equitable use"- that enables the decision-maker to arrive at a pragmatically acceptable end-result.44 Even decision-making concerning the use of force involves setting a balance between restraint and the need for action, while hard cases in this field invariably contrast the relevance of non-use of force under Article 2 (4) of the Charter in relation to the ostensible exception of self-defence under Article 51. Few international lawyers think of their craft as application of pre-existing formal rules or great objectives. What rules are applied, and how, which interpretative principles are used and whether to invoke the rule or the exception - including many other techniques - all point to pragmatic weighing of conflicting considerations in view of particular 42 Cf. e.g. the discussion in Maivan Clech Lam, At the Edge of the State: Indigenous Peoples and Self-Determination (Transnational, 2000) p. 141- 151. 43 ECHR, Fredin v. Sweden, A. No. 192 (1991) para 51; Lopez Ostra v. Spain, A. No. 303-C (1994) para 51. 44 Cf. e.g. International Court of Justice, Tunisia-Libya Continental Shelf Case, Reports 1982 p. and the International Convention on the Non- Navigational Uses of International Watercourses, A/RES/51/229 (8 July 1997). I have analysed this "turn to equity" in, among other places, 'The Politics of International Law' 1 EJIL 1990 p. 4-32.  21 cases.45 What is sought after is something practical, perhaps the "fairness" of the outcome, as Thomas M. Franck has suggested. Under this image, law is not about peace or justice, freedom or security, stability or change, but always about both one and the other simultaneously. "The tension between stability and change, if not managed, can disorder the system. Fairness is the rubric under which the tension is discursively managed".46 The lawyer's task is now seen in terms of contextual "wisdom", or "prudence", rather than employment formal techniques or instrumental calculations.47 In a fluid, fragmented world, everything hinges on the sensitivity of the practising lawyer to the pull of contextually relevant considerations. 5. A Tradition of Anti-Formalism The development towards the kind of pragmatism surveyed above has been traditionally accompanied by a series of criticisms of international law's alleged "formalism". The first generation of professional international lawyers in the last third of the 19th century used a flexible notion of "civilization" and a historically oriented political jurisprudence to expand its horizon over diplomatic protocol and outdated natural law. The inter-war generation attacked the formalism of sovereignty that it saw in pre-war doctrines and advocated tradition and interdependence as bases for a more solid international law. After the next war, reformist lawyers especially in the United States indicted the 45 For a theoretisation, cf. Olivier Corten, L'utilisation du 'raisonnable' par le juge international. Discours juridique, raison et contradictions (Brussels, Bruylant, 1997). 46 Thomas M. Franck, Fairness in International Law and Institutions (Oxford University Press, 1995) p. 7. 47 For a celebration of judicial creativity in this regard, cf. Hersch Lauterpacht, The Development of International Law by the International Court (London, Stevens, 1959).  22 formalism of the League and based their "realism" on Cold War themes, either expressly policy-oriented in favour of the West or in a more social-democratic way highlighting the needs of international co-operation.48 Legal realism always had its Hawks and its Doves but for both, it seemed useful to criticise old law for its "formalism" in order to support "dynamic" political change. Interdisciplinary studies in the 1990's highlighted the extent to which the formal validity of a standard was independent from its compliance pull.49 As the law was seen instrumentally, its formality seemed to manifest no particular merit: "hard law" was just a choice among other regulative techniques, including soft standards or the absence of any standards in case the imposition of one's preference seemed within the limits of the possible and in fact preferable if this might "minimise transaction and sovereignty costs".50 In these debates formal law will find nobody speaking in its favour and is indicted as a utopianism supporting conservative causes. Anti-formalism is always a call for transformation: to overrule existing law either because it does not really exist at all, or if it does, it should not. The debate on soft law and jus cogens in the 1980s and 1990s manifested both of these criticisms and 48 Cf. David Kennedy, 'When renewal repeats: Thinking Against the Box' 32 NYU Journal of Int'l Law & Pol. (2000) p. 380-387. 49 Cf. e.g. Dinah Shelton (Ed.), Commitment and Compliance. The Role of Non-Binding Norms in the International Legal System (Oxford University Press, 2000). 50 An interdisciplinary research on the recent "move to law" uses a method of assessing "legalization" by reference to the standards' obligatory nature, precision and the presence of a centralised authority. The project examines "legalization" instrumentally, by concentrating on the conditions under which it constitutes a rational choice. Cf. e.g. Kenneth Abbott and Duncan Snidal, 'Hard and Soft Law in International Governance', in Judith L. Goldstein, Miles Kahler, Robert O. Keohane, Anne-Marie Slaughter, Legalization and World Politics (MIT Press, 2001 ) p. 37-72. Such instrumentalism is not neutral: to assess law from the perspective of rational choice is to occupy the perspective of a small number of actors that actually may choose their options by agendas they set. It celebrates the managerial culture of Western experts at work to advance Western interests.  23 Prosper Weil's famous analysis of the pathological problems (the "dilution" and "graduation" of normativity) introduced in international law by such notions were of doubtful persuasiveness to anti-formalist critics who wanted to realise the good society now and had no doubt that they knew how to go about this.51 Avant-garde instrumentalism at the end of the century reads like German public law conservatism at its beginning: over every international rule hangs the sword of clausula rebus sic stantibus.52 What makes the formalism - anti-formalism debate suspect is the extent to which anything may be and has been attacked as "formalism".53 Although some of the most influential French international lawyers the 1920's and 1930's represented "functionalistic" or sociological approaches to the law, the call for renewal at French facultés de droit in the 1950's was still made in the name of abandoning formalism.54 At least the following views have been labelled "formalism": a) rationalistic natural law theories; b) views emphasising the importance of (formal) sovereignty; c) views limiting international law's scope to treaties or other (formal) expressions of consent; d) views highlighting the importance of international institutions; e) views emphasising "rigour" in law-application; f) views stressing the significance of formal dispute- settlement; g) views stressing a clear boundary between law and politics. 51 Cf. Prosper Weil, John Tasioulas 52 Cf. Erich Kaufmann, Das Wesen des Völkerrechts und die Clausula rebus sic stantibus (Tubingen, Mohr, 1911). 53 Cf. Duncan Kennedy, 'Formalism', The International Encyclopedia of Social & Behavioral Sciences (The Hague, Kluwer, 2001). 54 Paul DeVisscher, 'Colloque d'enseignement du droit international', LX RGDIP (1956) p. 569.  24 The list is by no means exhaustive. In fact, anything can be labelled "formalism" because the term is purely relational. "Formalist" is anything that contrasts with whatever the speaker advocates by its material fullness. In such case, the opposite view will inevitably appear to be holding fast to the dead weight of some "form" in contrast to richness of the speaker's "substance". The almost uniformly pejorative use of the term "formalism" in international law reflects the predominance of the instrumentalist mindset in diplomacy and international politics. The way the legal idiom constructs and upholds the structures of diplomacy and politics is left invisible. The pragmatism surveyed above is thoroughly embedded in an instrumentalist mindset for which law is a technique to strike a balance between conflicting considerations on a case-by-case basis. But this easily loses the point of law as a standard of criticism of the way States and public institutions behave. Little room is left for the understanding of the form of law as the platform on which the international political community identifies itself identified by normative ideas, independent from the ideas of dominant factions. The contrast between instrumentalism and formalism is quite fundamental in seeking to answer the question "what is international law for?" From the instrumental perspective, international law exists to realise objectives of some dominant part of the community; from the formalist perspective, it provides a platform to evaluate behaviour, including the behaviour of those in dominant positions. The instrumental perspective highlights the role of law as social engineering, formalism views it as an interpretative scheme. The instrumental perspective is typically that of an active  25 and powerful actor in possession of alternative choices; formalism is often the perspective of the weak actor relying on law for protection. If instrumentalism today needs no particular defence, it may be useful to highlight the twin virtue of formalism. First, it is indispensable. Every standard is always formal and substantive at the same time. The very ideas of treaty and codification make sense only if one assumes that there at some point emerges an agreement, an understanding, a command that is separate from its legislative background. When States enter an agreement, or when some behaviour is understood to turn from habit into custom, the assumption is that something that was loose and disputed, crystallises into something that is fixed and ascertainable. The point of law is to give rise to standards that are no longer merely "proposed" or "useful" or "good", and which therefore can be deviated from if one happens to share a deviating notion of what in fact is useful or good. This property is often termed their "validity". To accept that positive law enjoys that property is not to say anything about how it is recognised in individual rules or standards, nor indeed of whether any actual standard so recognised would possess any particular meaning as against some other putative meaning. Validity indicates a formal property that leaves the norm so characterised a "flat, substanceless surface" - but a surface without which no "law" could exist at all. Second, the fact that the legal form is a "flat substanceless surface" expresses the universalist principle of inclusion at the outset and makes possible the ideas of a pluralistic international world."[O]nly a regime of noninstrumental rules, understood to be authoritative independent of particular beliefs or purposes is compatible with the freedom  26 of its subjects to be different".55 Between the form of the law and a decision in to project on it a meaning "x" instead of "y", is a professional technique that excludes no interpretation a priori, that enables stakeholders to articulate their grievances as legal claims on conditions of equality, including them into the normative universe as subjects of rights or carriers of distinct identities. The form of law constructs political adversaries as equals, entitled to express their subjectively felt injustice in terms breach of the rules of the community to which they belong no less than their adversaries - thus affirming both the inclusion as the principle that the conditions that apply to the treatment of any one member of the community must apply to every other member as well. In the end, competent lawyers may disagree about what this means in practice. But the legal idiom itself reaffirms the political pluralism that underlies the Rule of Law, however inefficiently it has been put into effect. There is a constant push and pull in the international world between a culture of instrumentalism that looks for the efficient realisation of outcomes, and a culture of formalism that insists that actors justify their decisions by formal standards and thus affirm their accountability. It would be wrong to associate this dialectic with fixed positions representing particular interests or preferences. Instrumental action is a necessary part of the search for good rules or institutions beyond the status quo. And any present rules are always also mechanisms to support particular interests and privileges. "Power" and "law" are entangled in such complex ways that it is difficult to interpret particular events as manifesting either one or the 55 Terry Nardin, 'Legal Positivism as a Theory of International Society', in David R. Mapel & Terry Nardin, International Society. Diverse Ethical Perspectives (Princeton, 1998) p. 31.  27 other: power works through "formal rules" - just like instead of "naked power", we see everywhere power defined, delimited and directed by rules. But the analytical difficulty to distinguish between "power" and "rules" does not undermine the need to assess the political virtue of the cultures of instrumentalism and formalism by reference to the historical situation. As the debates around the fluid dynamism of globalization have demonstrated, formal standards and institutions be needed to protect the weak members of the community, and pose demands on the powerful ones.56 There is no magic about such standards and institutions. They do not automatically produce the protection they promise but may also buttress privilege and provide a camouflage for ignoble social practices. Hence my reference to instrumentalism and formalism as "cultures", sensibilities and biases, traditions and frameworks, sets of rituals and self-understandings among institutional actors. Where instrumentalism possesses, as pointed out above, a "heroic" mindset, formalism, with its associated tropes about the rule of law, rights and constitutionalism, associates with impartiality and pluralism less in terms of definite institutional models than as regulative ideals for a profession without which no community could be truly self- governing, that is, rule itself by standards it recognises as its own (instead of those of some influential faction). For this purpose, the community needs servants that administer those standards (instead of trying to invent them) - the class of lawyers – whose traditions and practices are defined by their closeness to the "flat, substanceless surface" of the law. 56 Out of a burgeoning literature, cf. e.g. Nicholas Tragourias, 'Globalization, Order and the Rule of Law', XI FYBIL (2000) p…  28 6. Instrumentalism, Formalism and the Production of an International Political Community Modern international law puts the international lawyer at the heart of the legal system. It is possible to represent that position schematically by reference to the two types of logic at play in the international rule of law. Here is the international relations theorist Hedley Bull: "The special interests of the dominant elements in a society are reflected in the way in which the rules are defined. Thus the particular kinds of limitations that are imposed on resort to violence, the kinds of agreements whose binding character is upheld, or the kinds of right to property that are enforced, will have the stamp of those dominant elements. But that there should be limits of some kind to violence, and an expectation in general that agreements should be carried out, and rules or property of some kind, is not a special interest of some members of a society but a general interest of all of them."57 So described, law unites an instrumentalist logic, one that looks for the realisation of objectives through law, with a formalist logic, one that establishes standards of behaviour. Now it is obvious that neither logic is fully constraining. The instrumental logic is indeterminate as the objectives always leave a number of possible choices: what does "peace and security" mean and how should it be realised in the Middle East, for example? Nor is the formalist logic ever fully formal, but always in practice somehow partial and biased. However general the rules of law are, their equal application appears unjust because the reality to which they are applied is profoundly unequal: should large and small States, democracies and dictatorships really be treated 57 Hedley Bull, The Anarchic Society. A Study of Order in World Politics (Macmillan 1977) p. 55.  29 alike? The form of law is realised in particular rules or decisions that are no longer formal but that always involve a political preference, a bias in favour of some substantive value of interest. In the case concerning The Use or Threat of Use of Nuclear Weapons (1996), for instance, the International Court of Justice was requested by the UN General Assembly to give an advisory opinion on the legal status of nuclear weapons. From the perspective of the instrumentalist logic, the relevant regulation (human rights law, environmental law, humanitarian law, and the law concerning the use of force) sought to accomplish several types of objectives: above all protection of human life and the environment, as well as the survival of States. These objectives proved indeterminate, however, and both opponents and supporters of nuclear weapons argued by references to them. The instrumental logic did set some limits to what the Court could say, but it did not - indeed could not - fully constrain. A decision by the Court was needed to complete the instrumental logic - a decision that would, then, be undetermined by the instrumentalist logic itself. The formalist logic was equally indeterminate. To decide that threat or use of nuclear weapons would be illegal would have created a consistent material bias in favour of States in possession of conventional weapons or in de facto possession of undisclosed nuclear weapons. To require the dismantling of disclosed nuclear arsenals would have revolutionised the existing military-political relationships in unforeseen ways. But to decide that nuclear weapons ware lawful would have maintained the systemic bias in security policy in favour of nuclear deterrence and gone against the deep-rooted popular sense that the existence of such weapons constitute a  30 permanent hostage-taking by nuclear weapons States of most of the world's population. Neither illegality nor legality could remain fully within the formalist logic. Both broke through pure form to appearing to buttress one or another kind of material bias. Indeed, it was impossible to decide either way without the decision seeming "political". And because the political choice in this case seemed too important for the Court to take, it chose the path of recognising the insufficiency of both logics: "the Court considers it does not have sufficient elements to enable it to decide with certainty that the use of nuclear weapons would be necessary at variance with the principles and rules applicable in armed conflict in any circumstance."58 I have elsewhere defended the Court's silence inasmuch as it protected the need for a sustained political condemnation of the killing of the innocent, lifting it from the banal instrumentalism of modern law.59 Irrespective of that position, however, the case illustrates the indeterminacy of both of the two types of logic behind the Rule of Law, as outlined by Bull above. Neither instrumental calculation nor a purely formal analysis could grasp the status of such weapons: a decision was needed that was irreducible to the two logics. Here the decision was silence. In other cases, as pointed out above, the Court may have recourse to balancing, contextualisation, and bilateralisation, among a host of other techniques, to complete the instrumental and formal structures within which it works.60 Each of such techniques is, again, indeterminate. None of them explain why this 58 ICJ, Threat or Use of Nuclear Weapons, Reports 1996, p. 262-3 (para 95). 59 Cf also my commentary of the case in The Silence of Law/The Voice of Justice, in Laurence Boisson de Chazournes & Philippe Sands, International Law, the International Court of Justice and Nuclear Weapons (Cambridge University Press, 1999) p. 488-510. 60 I Have discussed such techniques in From Apology to Utopia. The Structure of International Legal Argument (Helsinki, Finnish Lawyers' Publishing Co. 1989) p. 410-421.  31 argument was held relevant, why that interpretation was chosen. The decision always comes about, as the political theorist Ernesto Laclau has put it, as a kind of "regulated madness", undetermined by any structure outside it.61 As such, the Court's decision (or a lawyer's opinion) is always a genuinely political act, a choice between alternatives not fully determined by external criteria. It is even a hegemonic act in the precise sense that though it is partial and subjective, it claims to be universal and objective. But it is this very partiality and political nature of the decision that ensures that it is an aspect of, or even a creative moment of a political society. Here finally, is the significance of the under-determination of the two logics behind the Rule of Law. The society upheld by international law is not an effect of technological reason, nor even of (some conception) of formal reason tout court. It is an effect of decisions, made under conditions of uncertainty and conflict and amenable for immediate criticism from alternative standpoints. That international law is not a passive reproduction of deductions from some globalising logic or other (economic, environmental, humanitarian) structure beyind itself, institutes the international society it governs as a political community that seeks to decide for itself what rules govern it. It is, as Bull noted, a union of "dominant elements" and "general interest". Not reducible to either one or the other, international law is the terrain in which the never-ending struggle between the two is being waged. 7. Beyond Instrumentalism and Formalism 61 Ernesto Laclau, 'Deconstruction, Pragmatism, Hegemon', in Chantal Mouffe (Ed.), Deconstruction and Pragmatism ((London, Verso, 1996) p. 58.  32 And yet this cannot be the whole story. Although notions such as "peace", "justice" or "human rights" do not fit well within the techniques of legal formalism, and are quite disappointing as behavioural directives, they give voice individuals and groups struggling for spiritual or material well-being, fighting against oppression, and seeking to express their claims in the language of something greater than merely their personal interests. Law - including international law - has a "utopian, aspirational face",62 expressed in large notions such as "peace", "justice" or "human rights" that in countless international law texts appeal to solidarity within community. They do this in three distinct, but related ways. First, they redescribe individuals and groups as claimants of rights or beneficiaries of entitlements and in so doing provide them with an identity that they may assert against the homogenising pull of formal law. As Karen Knop has recently pointed out, the treatment of claims of self- determination by marginalized groups such as indigenous peoples in legal institutions has sometimes enabled those groups to be represented by an identity “that might resonate with those represented" and thus to "equalize cultures in international law".63 Second, such principles give an international voice to communities by allowing them to read their particular grievances as claims of universal entitlement, at the same level as claims made by other members of the community. To be able to say that some act is an "aggression" or that the deprivation of a benefit is a "human rights violation" is to lift a private grievance to the level of a public law violation, of concern not only to the victim but to the community. Such notions – and the whole 62 Roger Cotterell, Law's Community. Legal Theory in Sociological Perspective (Oxford, Clarendon, 1995) p. 17. 63 Knop, supra note p. 210.  33 debate about the objectives of international law - act in the political realm to challenge what Norman Geras has termed the "contract of mutual indifference" - the tendency to regard violations as a private matter between the victim and the perpetrator, and therefore not of concern to others.64 They challenge they way claims are blocked in the international realm as matters of "domestic jurisdiction" or "private law", thus helping to express cosmopolitan ideas about a genuinely political international public realm. And thirdly, to make those claims as legal claims (instead of moral aspirations or political programmes) is to imagine - and thus to create - the international world as set of public institutions within which public authorities should use their power in roughly predictable ways and with public accountability. The fact that public law notions such as jus cogens or of obligations erga omnes tend to be formulated in such large terms as to restate the "paradox of objectives" has made them seem quite useless from an instrumental perspective. But, we may now assume, their role may be precisely to counteract the ideological effects of instrumentalism. Again, the form of those ideas - of an "international legal community" - is important as such. Their emptiness allows their use for the articulation of the most varied types of claims, and thus provides a surface for the inclusion of the claimants as members of a pluralistic community. On the one hand, "peace", "justice", and "human rights" are indispensable aspects of political communities in which private injustices turn into public wrongs. On the other hand, the very emptiness of such notions resists their instrumentalisation in favour of single causes and pushes towards the understanding of (the international) community on a pluralistic basis. They are a 64 Norman Geras, The Contract of Mutual Indifference. Political Philosophy after the Holocaust (London, verso, 1998).  34 necessary supplement to a legal formalism that without its utopian face would degenerate into cynicism. "Self-determination", typically, may be constructed analytically to mean anything one wants it to mean, and many studies have invoked its extreme flexibility. Examined in the light of history, however, it has given form and strength to claims for national liberation and self-rule from the French Revolution to decolonization in 1960's, the fall of the Berlin wall and the political transitions that have passed from Latin America through Eastern Europe and South Africa. "Peace", too may be an empty notion, perfectly capable of coexisting with economic deprivation and suppression of human rights. On the other hand, peace movements have been an invaluable aspect of political contestation inasmuch as they "may mobilise support and highlight the inconsistencies in international concepts of peace and security".65 Even if "justice" does lie in the eye of the beholder, without a language of justice, the international struggles for resources, recognition, democracy or, for instance, "ending the culture of impunity" would have seemed like so many meaningless games played by diplomats. In other words, though the question "what is international law for?" is seldom useful as an aspect of the deliberations over particular problems among international lawyers, it is absolutely crucial as a focus for international law's emancipatory potential. While the culture of formalism is a necessary though often misunderstood aspect of the legal craft, as a historical matter, it has often provided a recipe for indifference and needs to be accompanied by a live sense of its political justification. To lift the debate about 65 Hilary Charlesworth & Christine Chinkin, The Boundaries of International Law. A Feminist Analysis (Manchester University Press, 2000) p. 272.  35 objectives from diplomatic instruments or academic treatises to the level of political struggles is a necessary counterweight to the bureaucratic spirit often associated with formalism. This would also enable the reconstruction of international law as a political project. As modern international law arose in the last decades of the 19th century, it did so not as a professional technique or an aspect of philosophical education but as part of the politics of European liberal internationalism.66 This was an optimist, elitist, activist and anti-formalist politics that expected public opinion and democracy to pave the way for a rationally administered world.67 The last articulations of that spirit date from the first decade following the Second World War.68 Since then, the effect of the Realist critique has been to create a gap between the utopian and the pragmatic parts of international law. The former has become a rather grandiose justification over the latter. But when formalism loses political direction, formalism itself is lost.69 Hence the turn to pragmatism as surveyed above, to the contextual balancing of conflicting considerations by well-placed lawyers at international institutions, embedded in the instrumentalist mindset. In other words, the question "what is international law for ?" needs to be resuscitated from the paralysis that it is infected with because of the indeterminacy of the responses given to it and to finally leave the conservative myth of 66 Cf. Martti Koskenniemi, The Gentle Civilizer 67 Cf. the very useful Jo-Ann Pemberton, Global Metaphors. Modernity and the Quest for One World (London, Pluto Press, 2001) 68 Cf, especially, Hersch Lauterpacht, "The Grotian Tradition in International Law", BYIL 1946. 69 For a useful reconstruction of Hans Kelsen's formalism in terms of the political project that inspired it, cf. Jochen v. Bernstoff, Der Glaube an das Universale Recht. Zur Völkerrechstheorie Hans Kelsens und seiner Schueler (Baden-Baden, Nomos, 2001).  36 Westphalia. But this necessitates a reformulation of the relationship of international law to politics, in either of its two guises, as principles and doctrines on the one hand, and as institutional practices on the other.70 Both political realism and institutional pragmatism arose as reaction formations to failed expectations about international law's autonomy: realists rejected legal institutions as a sham and told politicians to aim directly at their objectives. Institutionalists were wary of such objectives and instead relied on techniques of adjustment and compromise. 8. Between Hegemony and Fragmentation: A Mini-History These reaction formations are intellectually disappointing and politically dubious. Neither provides space for anything but a most formal debate about "what is international law for ?" and no space at all for responding to that question by reference to popular aspirations about peace, order and justice. A first step in trying to account for such aspirations is to accept that these notions are subject to political struggle and that even as they are formulated in universal terms, they are constantly appropriated by particular agents and interests so as to support their agendas and causes. To say that one's actions embody those of an "international community" is one such technique.71 They are aspects of hegemonic struggle, that is to say, struggle in which a particular claims to represent that which is universal.72 That the question "what is international law for 70 Cf. my From Apology, supra note 71 Cf. Pierre Klein, 'Les problemes souleves par la reference a la communaute internationale comme facteur de legitimite', in Olivier Corten & Barbara Delcourt, Droit legitimation et politique exterieure: L'Europe et la guerre du Kosovo (Bruxelles, Bruylant, 2001) p. 261-297. 72 For the notion of "hegemony" employed here, cf. Chantal Mouffe & Ernesto Laclau, Hegemony and Socialist Strategy (2nd edn. London, Verso, 2001).  37 ?" is a terrain of struggle is a natural aspect of a pluralistic society and a precondition for conceiving its government in democratic terms. The hegemonic nature of the debate about international law's objectives may be illustrated in terms of its history. When Spain and Portugal at the end of the 15th century divided the non-European world between themselves by reference to a Papal directive, they claimed to be speaking as Christian powers on behalf of humankind as a whole. When the Spanish theologians Vitoria or Las Casas later were claiming that God had given the Indians a soul just as He had given it to the Spanish, a particular form of Christian scholasticism - Dominican theology - came to speak in terms of universal principles, equally constraining on the Princes and the Indians. And when Hugo Grotius in 1608 challenged the Iberian claims, he was redefining the objectives of international law within a hegemonic struggle that opposed a Reformation-inspired commercial universalism against the ancien régime of (Catholic) Christianity. The narrative of international law from those days to the 19th century may be depicted as a succession of natural law arguments that were united by their always emerging from some European intelligentsia that claimed it was speaking on behalf of the world as a whole. When de Emmerich Vattel in 1758 formulated his "necessary law of nations" in terms of the commands of natural reason, and found that it consecrated a balance of power between European sovereigns, he already filled the category of the "universal" with a profoundly particular understanding that was a part of the (European) Enlightenment. Since the first appearance of the (modern) international law profession in Europe in the late 19th century, that profession imagined itself as, in the words of the Statute of  38 the Institut de droit international (1873), the "juridical conscience of the civilised world". This understanding, too, was born in a cultural environment that imagined its own experience - which it labelled "civilization" - as universal and postulated it as the end-result of the development of societies everywhere. The civilizing mission enthusiastically propagated by late 19th century international lawyers was a hegemonic technique, embedded in an understanding of the law as not simply a technical craft or a set of formal instruments and institutions. It was a spontaneous aspect of "civilization" which had the natural tendency to become universal. If the first world war destroyed whatever was left of the civilizing mission, it also gave rise to a series of efforts to articulate anew the universal basis of international law, sometimes in terms of a law-like movement of societies to ever more complex forms of division of labour and interependence,73 sometimes through a reinstatement of the hierarchical principles that were a natural part of the law as a legal system.74 Most of the reconstructive scholarship of the inter-war period, however, simply generalised the legal experience of European societies into the international level, bringing to existence a universal international law through private law analogies, conceiving the Covenant of the League of Nations as a constitution of the world and by allocating to the juristic class the function of "filling the gaps" in an otherwise primitive-looking legal system.75 The particular European experience with the Rule of Law became the placeholder for the aspirations of peace and justice that 73 Cf Max Huber, Die soziologischen Grundlagen des Völkerrechts (Berlin, Rothschild, 1928 [1910]). 74 Verdross, Kelsen 75 Cf. in particular Hersch Lauterpacht, the Function of Law in the International Community (Oxford University press, 1933) and the comments in my 'Lauterpacht, The Victorian Tradition in International Law', 8 EJIL 1997 p.  39 lawyers saw was demanded by populations struggling with industrialism and conflict. In the more recent post-war era, much of that kind of language - like the political liberalism with which it was associated - has lost credibility and come to seem little more than a facade over the activities of lawyers and diplomats working in international organisations and foreign offices. When somebody today claims to be acting on behalf on the "international community", we immediately recognise the hegemonic technique at work.76 As against the pragmatic spirit of public international law, new specialisations carry ideals of universalism and progress. Recently, this has occasioned a lively debate about the "fragmentation of international law" - the emergence and consolidation of special regimes and technical sub-disciplines: human rights law, environmental law, trade law, the use of force and so on.77 In each of such realms, particular interests and projects are projected as universal ones, resulting in normative and jurisdictional conflicts. In its Tadic Judgment of 1999, the International Criminal Tribunal for the Former Yugoslavia (ICTY) expressly deviated from the practice of the International Court of Justice, as laid out in its Nicaragua case in 1986 concerning the attribution of conduct by military irregulars to a State. To move from a standard of "effective control" to one of "overall control" significantly enhanced the accountability of foreign States indirectly involved in internal conflicts, constituting a shift of normative preference with respect to one set of international problems.78 The continuing debate about the relevance of 76 In addition to the article by Klein at note Error: Reference source not found above, cf. Michael Feher, Powerless by Design. the Age of the International Community (Duke University Press, 2000), 77 Cf. the essays in L.A.N.M. Barnhoorn and K.C. Wellens, Diversity in Secondary Rules and the Unity of International Law (The Hague, Nijhoff, 1995). 78 Cf. ICTY, …  40 environmental, human rights or labour standards within the WTO system reflects a search for the relative priority of political objectives within WTO institutions as those priorities have not been set at the level of the relevant agreements themselves. The autonomy invoked by human rights regimes constitutes a subtle manoeuvre by human rights implementation organs to universalise their jurisdiction. "Dynamic" arguments and the object and purpose test allow the creation of a systemic bias in favour of the protected individuals that could be difficult to justify under traditional law. Now "fragmentation" is not a technical problem resulting from lack of co-ordination: the normative preferences of environmental and trade bodies differ, as do preferences of human rights lawyers and international law "generalists".79 Such differences are like differences between States: what is at issue is a hegemonic struggle where each institution, though partial, tries to occupy the space of the whole. Far from being a problem to resolve, the proliferation of autonomous or semi-autonomous normative regimes is an unavoidable reflection of a "postmodern" social condition and a beneficial prologue to a pluralistic community in which the degrees of homogeneity and fragmentation reflect shifts of political preference and the fluctuating successes of hegemonic pursuits.80 9. Legal Formalism and International Justice Let me close by four responses to the question "what is international law for?". Two are rather straight-forward. 79 Cf. Martti Koskenniemi and Päivi Leino, 'The Fragmentation of International Law: Postmodern Anxieties', LJIL (2002) p. 80 Barbara Stark, 'After/World(s): Violation of Human Dignity and Postmodernism in Law', 27 Yale J. of IL (2002) p. 336-347.  41 First, international law exists to advance the repertory of substantive values, preferences and practices that those in dominant positions have imposed on the world. Second, international law also gives voice to those who have been excluded from decision-making positions and are regularly treated as the objects of other peoples' policies; it provides a platform on which claims about violence, injustice, and social deprivation may be made even against the dominant elements. To bring these two aspects of international law together means that there is no fixed set of objectives, purposes or principles that would exist somewhere "outside" or beyond international law itself, that they are always the objectives of particular actors involved in hegemonic pursuits. The law is instrumental, but what it is an instrument for cannot be fixed outside the political process of which it is an inextricable part. This is why, thirdly, international law's objective is always also international law itself. For as I have tried to argue above, it is international law's formalism that brings political antagonists together as they invoke contrasting instrumental understandings of its rules and institutions. In the absence of agreement over, or knowledge of the "true" objectives of political community - that is to say, in an agnostic world - the pure form of international law provides the shared surface - the only such surface - on which political adversaries recognise each other as such and pursue their adversity in terms of something shared, instead of seeking to attain full exclusion - "outlawry" - of the other. Its value and its misery lie in its being the fragile surface of political community among social agents - States, other communities, individuals - who disagree about social purposes but do this within a structure that invites them to argue in terms of an assumed universality.  42 But there is a fourth response as well: international law exists as a promise of justice. The agnosticism of political modernity has made the articulation of this last teleological principle extremely difficult. For the justice towards which international law points cannot be enumerated in substantive values, interests or objectives. All such languages express inadequate and reified images, (partial) points of view. A return to morality - in contrast to "moralisation" - is not available.81 As a promise of justice, international law describes the international world as a political community in which questions of just distribution and entitlement are constantly on the agenda. Such a self-image supports an administrative culture in which the acts of public officials are constantly assessed by a language of community standards. The instrumentalist mindset understands the law only as a technique of domination, a coercive order to make "nations behave". Its underlying image is the Hobbesian view of law as a melancholy necessity, a technique to prevent human groups from self-destruction. The image of law as a pointer towards justice challenges this self-view and encourages support for transformation: a world of - for lack of better words - peace, equality and freedom. If law is used to compel (as it is), it is used to because the violations cannot coexist with such aspirations. They are singular until the law lifts them from the purely subjective into public illegality: "Law is the name of the semblance of order - the assembling, the ordering, the establishing of commonality - that is made of our otherwise (subjective) differences when we take, or interpret them to be a world that can be judged, rather than mere subjective experiences".82 81 Cf. Martti Koskenniemi, 'The Lady Doth Protest Too Much. Kosovo, and the Turn to Ethics in International Law', 65 The Modern Law Review (2002) p. 159-175. 82 Marianne Constable, The Silence in Law. Justice in Cover's 'Field of Pain and Death', in Austin Sarat (Ed), Law, Violence and (Princeton  43 But the justice that animates political community is not one that may be fully attained. Not only is law never justice itself, the two cannot exist side by side. If there is justice, then no law is needed - and if there is law, then there is only a (more of less well-founded) expectation of justice. Here is the truth in instrumentalism about positive law being a pointer beyond itself. There is a Messianic structure to international law, the announcement of something that remains eternally postponed. It is this to-come that enables the criticism of the law's own violence, its biases and exclusions. No doubt, law and justice are linked in the activity of lawyers, paradigmatically in the legal judgement. This is the wisdom grasped by legal pragmatism. But the judgement is always insufficiently grounded in law, just like positive law is always insufficiently expressive of justice. In the gap between positive law and justice lies the necessary (and impossible) realm of the politics law. Without it, law becomes pure positivity, its violence a mere fact or power. University Press, 2000) p. 95.