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 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 But it has not been replaced by something recognizeably non-Westphalian.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

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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 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 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 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.