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 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 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 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 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 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 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 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.