7. Beyond Instrumentalism and Formalism

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 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 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 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 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.