3 WHAT IS INTERNATIONAL LAW FOR? Martti Koskenniemi SUMMARY ‘The objectives of international law appear sifferertly depending on one’s standpoint I. THE PARADOX OF OBJECTIVES Attempting to answer the question in the tile one meete with a familiar paradox. On the one hand, it seeme indisputable tht international law ‘has 2 genera fi fulfil, namely to safeguerd international peace, secrity and justice in el between Stats’ (Tomuschat, 1999, p 23).Or as Article 1 ofthe UN Charter puts organization has the puzpose tobe a centre for harmonizing the actions of the attainment of... common ends’ such as international peace and security relations among nations, and international cooperation. Such objectives seem self= evident and have never been seriously challenged.On the other hand, itis hard wo see how or why they could be challenged—or indeed why one should be enthusiastic90 MARTTI KOSKENNIEMI about them—because they exist at such high of abstraction as to fal to indicate curity’ or justice” rally mean? As that ppethaps already to have narrowed down its scope unacceptably. Surely it must ako seck to advance ‘human rights 36 well 4 the rule of law domestically inside States for the bencfit of human beings (Tomuschet, 1999, p23). But what if advancing human rights would call for the destruction ofan unjust peace? ‘seems to depend on any general response to the question Jaw fort” The real problem seems always to be resolve interpretative controve emerge when defending or atacking particular policies. There is no Middle Bast berween Issel and the would imimediately give mutually exclusive answer «bout being for or “against hunian rights but about whet might such rights be and Irow they shouldbe translated into social practices in the relevant societies. To enquire about the objectives of international law isto study the political preferences of inter= national actors— those preferences di controversial ar be to see how it could be used to resohve it It would therefore be wrong to think of the paradox of objectives as a technical problem that could be disposed ofby reflecting more cl ity, oF jst economic analyses about the way acceptable response to the question stead permanently preferred some choices over other choices, they would no longer be able to do the accordance with the founding myth ofthe sytem, the lay the bass for an agnostic, procedural in jus or other transcendental notions of the good If tere isan “internetional communi to further the objectives of existing communities" Sovereign ‘equality builds on this: because there are no natural ends, every member of the “WHAT 15 INTERNATIONAL LAY FOR? o sere and were bone the members of the Sor {ternational legl argument can be gleaned, for instance, fom she opiin ofthe iment Cou : {Be our wn ealed upon to examine the sdb of reins td 198 a EEA in regard to. eng niche oon eo apd seeping State would fet rep the reser ion at all. This would have gone against the universal nature of the tion is compatible with th “object and purpose’ of the Convention, the reserva ae ith jet an pron! fh Coen A “individually and from its own st z ‘Sach an argument defines the objectives of intemationa lv in terms ofthe objec- tives ofthe (sovereign) members ofthe international society—in this cae the society to the Genocide Convention—bringing tothe fore two types of why would only State objectives count? Il, CONVERGING INTERESTS? no antecedent ore eli fm prs ben wha Se wast he a7 Canvey ier wl het ea open we dal het ome tht he freale ih he dipeemet ied wl eto bee poe of 2 Henin west insted of aman va he yam x ete upon Ste ane (Henk, 1983,2 MARTY KOSKENSIENY aston cdi hea fe Many of secre tn stl apterous top at Se Ata deeper Jevel, State interests would coalesce and the objective of i 7 steerer oe Wn oes to the sal or clled inthe next word to redress the balance ofthe prevent (Cary tows p30), or preferences (McDougal, 1953, harmony under a more elabo eo WHAT 19 INTERNATIONAL LAW FoR? 9% jurizprudential techniques that often emerge into each other. Bren the hardest P tion (for example by highlighting the priority of ‘philosophically speaking, realism is unthinkable that cupport it, and needs such reference in order to seem professionally Je, Much ofthe controversy is about political prefevens ‘one’s analysis, Disciplinary p ing the previous generstion cor as ‘apologist (typically beca ing eitiques ae a available today a8 they were a century ago. Care must be taken not to associste any legal position or doctrine permanently with either: idealism and realism are best understood as snes for instiutional reform, inary manoeuzing rather than "This is, afterall, why the General Assombly posed its questi Reservations case inthe fist place. The Couirt was not asked te bility of partcalar reservations but to indicate how to go about implementing the ‘Couvention so as to minimize any distorting effect that controversial reservations sight have. Many lawyers make a more ambitious defence of practical effects. However neutral in regard to political structure is not devoid of nor accompanied by a cu legal system. An ale in terms of a ‘caltre of civility’ shared by its administrators and excluding certain types of secrecy, dishonesty, faud, or manipulation. Sach an explanation resonates ‘with international law's emergence in the late nineteenth century a5 an aspect of ‘optimistic evolutionism among the liberal dites of Europe and North America. To view intermational lew as a process of education isto assume that, by entering into |” MARTE KOSKENNTEME ‘come to define not only their objectives but perhaps ‘ven their identity by principles offered by international law (Koskenniemi, 20012), ralizing vocabularies of human rights, sm, economic, and scologial interdependence have no doubt complicated inter-sovercign law by the engens and ‘obligations owed to the inter- insertion of public law nations such a national community as a whole” and by ‘through the Muid dynamics of glob been replaced by some irections—human 1 snvironmental rogimes p Union has developed made in the WTO Agreement? ? pen tareron Mecho Bonees Report ot Ape Bay (AB 196 2) ESR 9p 108 [IEAT 18 INTERNATIONAL LAW FOR? 95 tate-centrédnest is thoroughly practical, ‘what {international lv) te ‘provides the life and blood em would only note that such values confit hhave provided the struczures of authority needed to cope with the incess are popiulted by experts from the developed West. ‘given and the resources allocated to the ‘ight the attacks on New York and Washington in September96 MARTTI KOSKENNIEML ‘economic and technical resources. What becomes a “crisis? in the world and will involve the political energy and resources of the inteeational syste is determined in « thoroughly Western-dominated process (Charleswo stem the po powerful actors--transnational networks, large cor developed oa Iw (eg Hurrell and ‘Woods, 1999), tion may also open avenue national cv in deciding a prior ix and standards may each ‘of technique must elect (WHEAT 16 INTERNATIONAL LAW FOR? ” IV. INTO PRAGMATISM? 4 gu fi teas dor sec ee aes tereeaae teen Spm 20298 (MARTTI KOSKENNTEMT ‘of CEC or that domestic jurisdiction merely shields the such eases of the original rule. 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, i is always posible to interfere and prohibit it ey are to secure the regime. Yet, because setting the ‘balance’ beeween security and rights lies with the authorities against whom the rights-regime was established, the door to abuse remains open (see Cameron, 2000, pp 62-68) We often allow the reason for the rule to overr wwe believe the rule itself has’ ne for which it was enacted—or ones the soutine nature ofthe cases thet arse and the dangers attached to entithing citizens to ‘think for themselves. Such arguments are weak in the internstional realm where other way. The European Uni > of importation of hormone mest merely bec sent organ may have decided it should do so. The importance in Hiving pesceflly with © powerful neighbour and of deciding on any consideration about the importance of 2001). ' shows, there is a dark side to such anti: formalism. A legal technique that reaches ditectly to law's purposes is either ‘compelled to think that it cam access the right purpose in some ich case it would stand to defend its implicit "fora depo ofisumontake ata crs eB 1988p 95-99 WHAT 18 INTERNATIONAL LAW FOR? 99 International Criminal Court, disrmament or human rights treaties, environmental imes, and so on (tee Byers and Nolte, 2003). the instrumentalist mindset is that there never are simple, Security Counc or in psa of he ber ioc th pe nd rt on ee such scape. The European Convention on Hasan ight sea to nano cen ne person's freedom cor hood be eid to enor see Koskenniemi, 2000, pp 99-106). The wil of che drafters is the Tapguage ofthe instrument, Beyond about what might bea good (acceptable, workable, real Practitioners usually understand international law as being more about routine application of standard solutions, ad hoc accommodation, and compromise than dis- course about large objectives, Providing advice to 2 non-governmental organization fice on the part ofthe different protagonists. This required the management of the uti possidetis principle as against the provision of minority rights for popula 1A the Euopean weighted pa ‘the need for interference by public authorities. In regard to the that an interference {interests ofthe community and the requirements ofoodamertal sighs" Ta 4 tke manner, the lw concerning the dein frontier areas or the sharing of natural resour spo apseesrerta enables the decision-maker to arrive at a pragmaticaly acceptable end. -making concerning the use of force involves setting a balance the need for action, while hard cases inthis Geld ssment of what number of non-cotubatanteasia the limits ofp at ojctnes Wat ruesarappie ande tied nd wth cer ec other techniques—all =P ie not about peace or justice, both one and the other simultaneous but always about Detween stability and change, if a rong other or acaeraon ofall cect policy-oriented in favour of the West or in a more socal-democratic way ight is of international cooperati: realism always had its Hawks and its Doves ‘ld Law for its formalism’ in order to sup and ‘graduation’ of normat law by such notions were unpersuasive to anti-formali the good society now and had no doubt thet they knew how to go sbout this (see Wel tacked as ‘formalism’ (see have been so targeted: (2) sationalisticnatural-la theosiess jews emphasing the importanc® of (formal) soversignty; () views limiting intemgtional law's scope to treaties or other (formal) expressions of consent (2) views highlighting the importance of international institutions; ) views emphasizing ‘rigour’ in law-application; (©) views stressing the significance of formal dispute settlement; {(@) views insisting on a cleer boundary between law and politic. following views, ‘The Uist is by no means exhaustive. In fact, anything can be labelled formalism? § because the term is pacely relational. When 2 speaker advocates something (a norm,202 MARTTY KOSKENNtEMT tment mindset in oma ad iterated! polit Ineo Contacts nd pols he secures of iplnony oe x tet betnecn igual and frase qute Rnd hen tek of ea ering, formalism jeme. ‘Te instrumental perspective is typically that of an. ‘Powerful actor in possession of alternative choices formalism is often the perspective ofthe weak actor relying on lw for protect et of formalin His indapenable, Every wanda a Sena and beat te cine tne The ee oe oa make sense only if one assumes that at some point there “emerges an agreement, 7 understanc standard that is separate from its I round. When States eter an erent ot when sme andar hat ogee go, and che, the freedom of is subjects to the form of the ies on candons of equity ae ‘universe as subjects of rights. ser of int et a consti atersaies a to express their subjectively fel 2 community whic hey belong no fe Gan the sera that incon snd th principe thatthe conltion ppg to he anon of oop WHAT 18 INTERNATIONAL Law POR? ean pat into effect t push and pul in the international world between a cult and privileges. ‘Power” ard ‘aw’ are entangled in. ferpret particular events at manifesting either one or the other: power ingtead of ‘naked power’, we see everywhere ations. As the debates around the fluid dynamism of global formal standards and institutions may now offec some prot and pose demands on the powerful ones} There is no magic about formalism, how fevet Tt does not automatically produce protection but may also buttress privilege. Hence my reference to instrumentalist and formalism as ‘cultures sensibilities and“? and const definite institutional models than as regulative ideals for 2 profession without which no community could rae itself by st those of some influential factor that administer those standar lawyers—whose traditions and substanceless surface’ ofthe la. jing 0 invent thern)—the dass of ined by their closeness tothe “at, § VI. INSTRUMENTALISM, FORMALISM, AND ‘THE PRODUCTION OF AN INTERNATIONAL POLITICAL COMMUNITY icat play in the international rule of law. ere is the international zelations types theorist Hedley Bul 5 ucofa burgeoning te earn 2008104 MARTTI KOSKENNTENE ‘ut, and rules or property of some kind, some members of society but a genet logic is indeterminate as the objectives aivays leave a number of possible choice: ‘what does ‘peace and security’ mean and how should i be realized in the Middle East, for example? Nor is the formalist logic ever fully formal, but always in practice some. biased. However general the rues of lw are, their equal application ‘may appear unjast because the realty to which they are applied is profoundly ‘unequal should large and small States, democracies and dictatorships really be treated alike The form of law is realized in p les or decisions that are no longer formal but that always institute a bias in favou Assembly to give an: perspective of the Ihawever, and both opponents nd supp to them: are people bette - decision that would, then, leave that logic under- determined. ied, To decide that nnceae weapons we created a consistent material bias in favour of States in posses, in de facto possession of undisclosed nuclear re the dismantling of disclosed nuclear arsenals would have ‘revolutionized the existing military-poitical relationships in unforeseen ways. But to decide that nuclear weapons were lawful would have maintained the systemic bias in security policy in favour of the Great Powers and popular sense that the existence of such weapons cons taking by nuclear weapons States nor legality could remain fly form and created one or ancthe nent hostage- t's population, Neither illegality decide either way without the decision seeming ‘And because the political choice in tis case seemed too important for the Court to take, i chose the path of recognizing the insufficiency of both logics ‘the Court considers it does not have 2 0s {WHAT 16 INTERNATIONAL LAW FOR! the use of muclear and rules applicable in Telco nny eae : The dete iter he Car ein sn pel opdmeaton tengo ence . ‘Stam od aan erm (fs 1590) Ieee of on tower thc tr entero etd the Fle of aw at eaind by Bul above Ne sas could pape a of why ingen ae comes sho ne pol the : “tue ina inderminedy ay stare oie as 18 P59) wins denon oralenersopaion ane genie plac chit in the precise and objective But Sica goes lal er as , a5 Bull noted, a union of a tec er itr iw he tin never-ending struggle between the two is being waged VII. BEYOND INSTRUMENTALISM AND FORMALISM or human rights’ do not aguite disappointing 2 sey ofthe Tet Us of Baer Weg Ary Opion IJ Ros 1% p26 pes 8,+ of entitlements and in so doing provide them with an identity 106 MARTTI KOSKENNIEM? guage of something greater than ‘merely their personal interes. Law—including international Iaw—has a ‘utopian, sspirational face’ (Cotter, 1995, p17) expressed in large notions such as for ‘human rights’ that in countless international: ew texts 'y within community. They de this in thrce distinct, but zelated x redesribe individuals and groups as claimants of rights or beneficiaries r 4 groupe ss peoples in legal institutions has sometimes enabled those groups ted by an identity ‘that might resonate with those represented? and thus to ‘equalize cultures in international law” (Knop, 2002, p 210). Secondly, such principles give an international voice ( read their portcular grievances as claims of universal entitlement, at the same level a claims made by other members ofthe community. Ta be able to say that some act. fs an ‘aggression’ or that the deprivation ofa be Thuman rights violation’ is to lift a private grievance to the level law violation, of concern not ‘only fo the victim but to the community. Suck notions—and the whole debate about the objectives of internatior ct in the political realm to challenge hat Norman Geras has termed the ‘contract of mutual indifference’—the tendency fo regard violations asa private maiter between the victim and the perpetrator, aad imagine—end thus ‘international world as a set of public inttstions within which public authorities should use their power in roughly prediciable ways and with Public accountability. public law notions such as jus cogen tend tobe formulated in such large terms as to restate the ‘paradox of objective’ has ‘made them seem quite uscless from an instrumental perspective. But, we may now assume, their role may be precisely to counteract the ideological effects of instrumen falism, Again, the form of those ideas—of an of obligations erga omnes of a pluralistic community. “Selt- determi analytically to mean anything oue want das given. form rule from the French Revolution to decolonization in 1960s, the fall of the Beri Wall, and the polcal satan | pace soenetsne bo role wpe of oe IRasmuchohey mobs upprt and bight the iconsitnces in internation Cony of pene und scary (Chaleworh and Chinn, 2000, p72) ren mice de tthe eof the boule, ost a langage of asi, the al sigs foe eth ‘ofmpanity’ woud have se ternational law for? is eldom useful 1s an aspect of the deliberations over pa ite racial as a focus for international law's emancipatory potential id s0 as 2 part of the elitist expected public opinion and democracy to pave the way fora rationally a ‘world (se Koskenniemi, 2001a; Pemberton, 200i). The last articulator rmelism loses political direction, formalism tet is lost Hence the mis popes tree be he gucsion wht btm afr? ned oe restated fom he ofthe aspen to of nernatonal io son thon bad and ple selon and nso rage ruta ns ote nso aim dey athe telnet pl istition ar ssh nal poo ‘Hector wary fc eis and end ld te niques of adjustment and compromise Fora vel eosin a Hans Ket’ emai nce pl poe tpl es on ero 0108 MARTTI KOSKENSEMT VIII, BETWEEN HEGEMONY AND FRAGMENTATION: A MINI-HISTORY mations are intellecwally disappointing and politically dubious, ‘2 most formal debate about ‘what is inter space for ay that even as they ate formulated in universal by particular agents and interests so a5 their agendas and causes. Yo sj, that one's actions embody those of an ‘international commusity’ i one such technique (see Klein, 2001). They are aspects of hegemonic sirugl, that is to say, struggle in which'a particular claims to represent that which is universal (ese Monie i question ‘what is international law for? isa terrain of struggle isa natural aspect ofa pluralistic society arid a precondition for conceiving its government in democratic terms. ‘The hegemonic nature ofthe debate about intentional law's objectives may be ‘fustated in terms ofits history. When Spain and Portugal atthe end ofthe fifteenth «entry divided the ion-European world between themselves by reference to & Papal directive, they claimed to be speaking as Christan powers on behalf of hutiaalind a5 whole. When the Spanish theologians Vitoria or Las Casas later were claiming that God hed given the indians a soul just as He had given i to the Spanish, a particular form of Christian scholasticism ican theology—cameé to Speak inces and the Indians. And wheis he was redefining the objectives lism against the ancien rigime of (Catholic) law from those days tothe Nineteenth Ce depicted as a sucestion of natural low arguments that were united by their aways ~ ‘tnerging from some European ineligentsia that claimed it was speaking on behalf ofthe world asa whole. When de Emmerich Vatel in 1758 formulated his “necessary law of nations’ in terms of the commands of natural reason, and found that 1 nsecrated a balance of power between Buropesn sovereigns, he alzeady filled the ¢ “universal witha profoundly particular understanding that was a part wean) Bolightenment, ‘civilization’ —~as universal ‘end-result ofthe development of societies everywhere. The hilizing mission enthusiastically propagated by late nineteeath-century inter WHAT 1S INTERNATIONAL LAW FOR? 109 national lawyers was @ hegemonic technique, cinbedded in en understanding of the law as net simply a technical craft or a setof formal instruments and institutions It was 2 spontancous aspect of ‘civilization’ which had the natural tendency 10 become universal 2 Tt Word War eto whats msi ofthe ing mio ito 31 basis of international yur and interdependence (eg, Huber the hierarchical principles that were ‘Most of the reconstructive scholarship of the inter-war inging into existence a universal internation private law analogies, conceiving the Covenant ofthe League of Natio Lanterpacht, 1933; Koskennieri, ‘Law became the place- nw were demanded by was asociated-—bas lost credibility. When somebody today claims to be acting om behalf on the ‘international community’, we immediatly recognize the hegemonic technique at work (se Klein, 2001; Feber, 2000)-As against the pragmatic spitit of today's public international law, new speci ‘universalism and progress "the emergence and cons s: human rights law, eavir see Barnhoorn and Wellens, 1 Jaw, trade law, the use of force, and so 01 In each of auch reals, pati and standards are projected a5 uni resulting in normative ional conflicts. In its Tadi¢ Judgment of 1999, the International Criminal ibunal for the Former Yugoslavia (ICTY) expreely deviated from the practice of the International Court of Justice, as laid out in its ‘Nicaragua case in 1986 concerning the attribution of conduct by military imegalars te. To move from a standard of ‘ellectve contro? to one of overall control enkanced the accountability of foreign States indirectly involved in fics, constituting a sift of normative preference with respect to one set have not been set at the level ofthe relevant agreements themselves. The autonomy invoked by human rights regimes constitutes a subtle manoeuvre by human rights 2 the Fowaor v Duke Ta dgrent Cte No IT-BI-A, Apes Chusher (15 ly 199) pstpar?the obj ‘ordination: the normative preferences 48 do preferences of Duman rights lawyers and international lw ‘generals’ cospmunity in which the degrees of homogeneity and fiagmentaton reflect shifts of political preference and the fluctuating succestes of hegemonic pursuits (Stark, 2002), IX, LEGAL FORMALISM AND INTERNATIONAL JUSTICE, Let me close by four esponses to the question ‘what is international law for, Two 1d practices that those in dominant positions i ako ier vie to those who have been making positions and are regula “outlny ofthe ether It valu and its misery eins beng the eagle solace of WHEAT 18 INTERNATIONAL LAW FOR? m ions of just distribution and entitlement are image supports an administrative culture in sguage of community only a5 a techaique ‘human groups from challenges this self-view them from the purely subjective into public illegality ‘aw isthe name ofthe semblance of order —the atseribling, the ordering, the ertebishing of commaanity is not one that may be fully inl the two cannot exit side by sie. If law, the announcement of something that remains eternally 1 of the lan’s own violence, In the gap between pos im ofthe polities flaw. Wi2 MARTE KOSKENNINE WHAT 18 INTERNATIONAL LAW FOX? 3 Indiference. Political Philosophy afer the Konus, M (1989) From Apology fo Unopia. The Structure of Inenational Argument (Hiesinki: Finnish Publishing Co), “The Wonderful Articiality SIL Prac 22-28. suterpacht, The Victorian REFERENCES Ansorr, K and Sumar, D (2001), ‘The Anarcie Sovesy A World Pate: (Londons (Osford: Clarendon Pres) un, M (2000), Pewerlss by Design. The Peaxcr, TM rational Low a Oxford University in Corten, and Delcourt, B, Droit olitgue exteriure:ay MARTTI KOSKENNIEME Invernationat Law, (Cambridge: Cambridge PART II THE STRUCTURE OF INTERNATIONAL OBLIGATION