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. 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.

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

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.

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.

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).

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.

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 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.

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.

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).

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).

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

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.

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).

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.

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.

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.

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).

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.

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.

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.

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).

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.

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.

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.

56 Out of a burgeoning literature, cf. e.g. Nicholas Tragourias, 'Globalization, Order and the Rule of Law', XI FYBIL (2000) p…

57 Hedley Bull, The Anarchic Society. A Study of Order in World Politics (Macmillan 1977) p. 55.

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.

61 Ernesto Laclau, 'Deconstruction, Pragmatism, Hegemon', in Chantal Mouffe (Ed.), Deconstruction and Pragmatism ((London, Verso, 1996) p. 58.

62 Roger Cotterell, Law's Community. Legal Theory in Sociological Perspective (Oxford, Clarendon, 1995) p. 17.

63 Knop, supra note p. 210.

64 Norman Geras, The Contract of Mutual Indifference. Political Philosophy after the Holocaust (London, verso, 1998).

65 Hilary Charlesworth & Christine Chinkin, The Boundaries of International Law. A Feminist Analysis (Manchester University Press, 2000) p. 272.

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).

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).

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.

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, …

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.

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 University Press, 2000) p. 95.