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

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 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 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 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