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GLOBAL GOVERNANCE AND PUBLIC INTERNATIONAL LAW
Martti Koskenniemi, Frankfurt 9 February 2004
(Kritische Justiz, 2004)
We modern Europeans, citizens of the European Union,
Paradise, the Americans ironically remark, share an intuition
about how the world - the international world - is and how it
will be in the future. We think it will be like we are. We
are familiar with our national governments, our neighbourly
relations, the Commission in Brussels, the Strasbourg Court
of Human Rights. Romano Prodi appears to us as a serious
leader of an impressive, super-modern bureaucracy. All this
is very familiar, domestic, domesticated. And we need not
travel far - just cross one border - to arrive in Geneva
where we encounter what looks like a rather similar
environment: office-buildings of glass with acronyms on their
walls: WTO, WIPO (World Intellectual property Organization),
WHO (World health Organization), UNHCR, High Commissioner for
Human Rights, the United Nations European headquarters,
Palais des Nations.
Thus, when in Geneva or New York, the two great cities of
public international law, we Europeans interpret the
architecture and the acronyms in light of our experience. The
National governments govern at home; the Commission in
Europe, and the United Nations the world. Perhaps the
thickness of government diminishes as we emerge from the
domestic to the global. But at each level - the national,
European, international - there is a law through which common
affairs are administered and security and predictability are
provided to the respective societies. In the Hague, too, a
Palais des Nations houses the International Court of Justice
2
and is full of architectural symbolism denoting international
law as the rule of an international world, today accompanied
also by an International Criminal Court that finally gets rid
of the scandal of impunity: no person, in whatever capacity,
should enjoy immunity for the crimes they commit.
The international, we Europeans have learned to think, is
fundamentally just another domestic - larger, perhaps more
complex, but there is no qualitative difference between it
and the domestic. There is no reason why the Rule of Law
should not be applicable in both: if it is an aspect of the
legitimacy of the national realm that it is administered by
law, it is equally important for the legitimacy of the
international, that it be so administered. There are three
distinctly European versions of this view.
Six years into the French revolution, in his Zum ewigen
Frieden Immanuel Kant sketched the structure of a
cosmopolitan federation, the international world as a society
of democratic states under the rule of law, individuals as
the ultimate subjects of a single global order. This followed
from his Idea of Universal History with a Cosmopolitan
Purpose, which had appeared a few years earlier. This
federation was projected as a necessary stage in the
development of human societies. This is the philosophical
narrative, many of us believe it, though we may find it
difficult to say with conviction, why we do. Instead, it is
often easier to adopt the language of the economic-
technological story: interdepence, as Auguste Comte and
Durkheim prophesised, will turn an ultimately pre-modern
system of sovereignties into a single, organic rational world
society, administered by technical experts.
3
These two traditions provide the background for the
quintessentially European tradition of reading public
international law in the image of the law of the nation-
state, an instrument of the government of a single world
society: multilateral treaties as legislation - after all, in
the 20 years between 1975 and 1995 over 1.600 of them were
adopted.1 International Courts as an independent judiciary:
they do proliferate, the Hague Courts - who remembers how
many there are nowadays? The LOS Tribunal in Hamburg, The
Appeals Body of the WTO in Geneva, and so on. So surely the
UN is - or should be seen as - world government. Today, that
tradition is most visibly articulated in the debate -
especially vocal in Germany - about the rule of law in high
politics: the United Nations Charter not merely an act of
diplomatic co-ordination but a constitution of humankind.
***
Today, however, the idea that the world can - or should - be
governed through a single international law just like the
domestic is threatened by three developments. One I call,
following Max Weber, deformalization, the increasing
management of the world's affairs by flexible and informal,
non-territorial networks within which decisions can be made
rapidly and effectively. Think about the G7 or G8, the world
economic forum in Davos, the collaboration between huge
transnational corporations, financial and trade institutions
and regulatory branches of governments. International trade
is not regulated by international law but by lex mercatoria
and private international arbitration by far outweighs any
public dispute-settlement; Globalization invokes not
government, but governance, a spontaneous process, pushed by
1 Charlotte Ku, p. 4.
4
private interests and actors in a thoroughly pragmatic
process, accountable to no-one.
The second threat to the traditional image arises from what
international lawyers call "fragmentation", the increasing
division of international regulation into specialised
branches, deferring to special interests and managed by
technical experts specialising in those areas. Instead of a
single international law, we have today human rights law,
environmental law, international trade law, international
criminal law and so on, with little or no unifing ethos.
Environmental regulators decide on international sanctions
against States that violate environmental agreements - while
the World Trade Organization condemns this as protectionism.
The ICJ provides one standard for condemning foreign
intervention in civil wars - while the International Criminal
Tribunal for former Yugoslavia uses a different, and an
unsurprisingly more stringent standard. Impunity here,
accountability there. In American law schools, what used to
be taught as public international law is broken down into
human rights law, international business transactions, law
and security, and so on. The various ministries of States are
coordinated by a government responsible to a Parliament. In
the international realm, no such coordination exists.
Legislation is legislation for special interests and
unresolved normative conflicts are banal occurrence.
Deformalization, fragmentation, and a third - Empire. The
facts of American disengagement from law are staggering. In
arms control, the Treaty on Anti-Ballistic Missiles (ABM) was
replaced by a bilateral negotiating "framework" with Russia.2
The US declined to join the Anti-Personnel Mines Convention
2 Nico Krisch, 'Weak as Constraint, Syrong as Tool: The Place of International Law in US Foreign Policy', inD. Malone (Ed.), Unilateralism and US Foreign Policy. International Perspectives (2003) p. 49.
5
(Ottawa Convention) and the Comprehensive Nuclear Test Ban
Treaty (CTBT) - despite having been an initiator in both. It
rejected the Biological and Toxin Weapons Convention (BWC) in
2001 as well as the inspections regime of the Chemical
Weapons Convention (CWC) as too intrusive for American
industries. The disarmament conference in Geneva has become
what it was seventy years ago. Environment. The US did not
sign the Kyoto protocol or become a party to the 1992
Convention on Biological Diversity, or its related protocol
on Biosafety, or the Basel Convention on Hazardous waste.
The US never joined the UN Convention on the Law of the Sea
which took eight years to negotiate - not even after the
provisions on distribution of revenues from seabed activities
were amended after the adoption of the Convention in 1994 to
appease Americans. And it has rejected most human rights
treaties and all of their supervisory mechanisms, including
the 1989 Convention on the Rights of the Child (189
parties). After a series of judgements in the Dispute
Settlement body of the WTO against the United States, debate
has now started on withdrawal from that body.
Some aspects of this disengagement have received much
publicity. The legal black hole of Guantánamo, of course. In
two consequtive years, the US succeeded in pushing through
decisions in the UN Security Council that shielded American
soldiers participating in UN peacekeeping from suit within
the ICC; the Council yielded after the US had threatened to
prevent the renewal of the peacekeeping operations in Bosnia-
Herzegovina.3 And we all know what the doctrine of pre-
emptive strike threatens to do to the law of collective
security. Let me quote professor Michael Glennon, the
3 For the story, see Marc Weller, 'Undoing the Global Constitution: UN Security Council Action on theInternational Criminal Court', 78 International Affairs (2002) 693-712.
6
regime's international lawyer, writing in Foreign Affairs
last summer:
"With the dramatic rupture of the UN SecurityCouncil, it became clear that the grand attempt tosubject the use of force to the rule of law hadfailed… 'Lawful' and 'unlawful' have ceased to bemeaningful terms as applied to the use of force."4
The Under-Secretary for Disarmament Affairs of the Bush
Administration, John Bolton, asked his audience a few years
ago "should we take global governance seriously", went
through the usual suspects - ICC, ICJ, TBT, Land Mines, NGO
activity in human rights, trade and the environment - and
responded: "Sadly… yes" - namely to fight against it. For
him, globalism "represents a kind of worldwide cartelization
of governments and interest groups", something the US needed
to combat with all energy: "It is well past the point when
the uncritical acceptance of globalist slogans…can be allowed
to proceed. The costs to the United States…are far too great,
and the current understanding of these costs far too limited
to be acceptable".5 The conservatioves are not alone here.
The liberal Harvard professor Michael Ignatieff has recently
called the US to face its responsibilities and to move from
what he calls an "empire lite" to a full-fledged hegemonic
management of the world's affairs. If world government is a
necessity, why should could it not take place from
Washington?
These three developments - deformalization, fragmentation,
and Empire - threaten the European idea that the world is on
the move to a rule of law. Among many others, Jürgen Habermas
has insisted that the legitimacy of the postnational
4 Michael J. Glennon, 'Why the Security Council Failed', Foreign Affairs May/June 2003.5 John R. Bolton, 'Should we Take Global Governance Seriously?', 1 Chicago Journal of International Law(2000), p. 221.
7
constellation requires international, functional equivalents
to the administrative state to interact with individual
rights on the one hand, and a cosmopolitan social realm on
the other. For him, and others, only thus the conditions of
democracy may be created at the international level.
can public international law be used as world government? I
am sceptical about this. But before outlining what I see as
the beneficient role of international law, let me first
briefly outline what the tradition of public international
law is and where it stands today. I want to take seriously
the postmodern call: "historicize, always historicize!"
Neither the philosophical nor the economic-technical argument
captures public international law as a historical tradition.
After a mini-history of international law, I would like to
express some hesitation about international law as an
instrument of international governance. I will end with an
outline of how we might think of international law as
something else than an instrument of governance.
A Mini-history.
The first recognizeably modern treatments of international
law were produced by German public law experts after the
French Revolution and the revolutionary wars. In books they
wrote in French and German, Georg Friedrich von Martens from
Göttingen and Johann Ludwig Klüber from Heidelberg
articulated the principles of the post-Napoleonic settlement
in terms of a Droit public de l'Europe, a purely procedural
law that consisted of the complex rules of co-ordination of
the activities of European sovereigns. It dealt with how
treaties were concluded, the order of monarchic precedence,
how territory was acquired, how war was waged. It built on
the absolute rights of European sovereigns, indeed, arose as
8
a defence of absolutism without any idea of the
administration of an independent international realm.
It was only towards the end of the century - after the
Franco-Prussian war - that a generation of liberal
internationalists started to advocate a new international law
that would be responsive to the internal transformations in
European societies: democracy, liberalism, modernity. Public
international law needed to be distinguished from mere co-
ordination of diplomacy into an expression of the progress of
European societies. The first professional journal of
international law started to appear in 1869 and contained a
manifesto. What would international law seek to achieve:
"In the matter of personal status, the abolition notonly of slavery but of servitude; in civil matters thefreedom of establishment; in penal matters, the creationof a more just relationship between the crime and thepunishment and the application of the punishment in theinterests of the criminal as well as that of society;the suppression of the criminalisation of usury, and ofprivileged corporations, the liberation of the value ofgold and silver, and the freedom of association…"6
In other words international law was not just to co-ordinate
the activities of kings and diplomats. It would have a
political agenda, that coincided with the liberal agenda.
This was then taken further by the establishment of the first
international institutions - the so-called international
unions, the UPU, the ITU - in the 1870's, and the first
chairs in the discipline at universities. The first person to
articulate this ethos for students was the Baltic-German
Frederic von Martens who titled volume II of his 1888
textbook "International administrative law" - this was to
cover the various treaties of economic, technological and
6 Gustave Rolin-Jaequemyns, 'De l'étude de la législation comparée
9
scientific co-operation of the period. It was written in the
spirit of Jules Verne's Around the World in 80 Days -
published in same year as the first professional organisation
of international lawyers - the Institut de droit
international (1873).
After the first world war, international lawyers turned their
attention to international institutions, especially the
League of Nations. The League Covenant was interpreted as not
just as another treaty but a "constitution" - however odd
that might have seemed to the diplomats in Versailles who
negotiated it. A French professor, a socialist and a
"solidarist", Georges Scelle in the 1930's articulated the
whole of international law in terms of the domestic law of an
international realm: in a cosmopolitan theory of dédoublement
fonctionnelle national governments became regional
administrators of a universal law, based on natural human
solidarity. Throiugh the language of legal formalism, the
same was preached by Hans Kelsen in Austria, and Walther
Schücking and Hans Wehberg in Germany.
The Swiss jurist Max Huber had been a Swiss delegate at the
Second Hague conference in 1907 and been thoroughly
disillusioned about the extreme selfishness and short-
sightedness of the delegations there. For him, sovereignty
and statehood were just atavistic residues or pre-modern
times. In his Die soziologische Grundlagen des Völkerrechts
Huber adopted something like Durkheim's theory of the
solidarité sociale as a groundwork for a theory of
international interdependence. Even as States were different,
and had different interests, they needed each other and were
joined together by the very laws of modernity. It is truly
amazing how far their confidence in international law went.
et de droit international', (1869) 1 RDI p. 11.
10
Here is one of the leading international lawyers Hersch
Lauterpacht, speaking in Chatham house in London in 1941, as
bombs were falling over Coventry and as his family was being
pushed to the Ghetto in Lwow, Poland:
"The disunity of the modern world is a fact; but so,in a truer sense, is its unity. Th[e] essential andmanifold solidarity, coupled with the necessity ofsecuring the rule of law and the elimination ofwar, constitutes a harmony of interests which has abasis more real and tangible than the illusions ofthe sentimentalist or the hypocrisy of thosesatisfied with the existing status quo. Theultimate harmony of interests which within theState finds expression in the elimination ofprivate violence is not a misleading invention ofnineteenth century liberalism."7
After the new war many felt that although the League's
politics had failed, its functional activities had not. They
became the Specialized Agencies for the UN whose facades we
can today admire in Geneva. By the 1960's international
lawyers distinguished between the old international law of
co-ordination, still alive in the Cold War antagonism, and
the new law of "co-operation" in the economic, social and
technological fields, and in human rights. That this became
rooted in UN parlance followed from the predominance of the
developing States on the one hand, and the paralysis within
the Security Council on the other. In the 1970's the UNCTAD -
UN Conference on Trade and Development - espoused the ethos
of international governance in terms of assisting the Third
World in development. A social-democratic and regulatory
spirit flourished. And yet the development of the law - and
the Kantian project - seemed obstructed by the Cold War.
7 Hersch Lauterpacht, ’The Reality of the Law of Nations’, CollectedPapers 2 p. 26.
11
And then all began to change. I remember the Soviet Union’s
perestroika-period proposals – made often at the highest
level – in the United Nations for the development of the Rule
of Law in the international world. And the after 1989 the
Security Council suddenly woke up. First Iraq, then Somalia,
Libya, Angola, Haiti, the former Yugoslavia, and so on.
International lawyers saw it working “finally” as it was
supposed to do under the Charter. At an euphoric moment in
1992, the Council itself declared that it had competence to
deal not only with military but also economic, humanitarian
and even ecological crises. Sanctions were applied against
many countries – something many saw – wrongly, but
understandably – as a kind of enforcement against law-
vreakers.
Many other things started to happen. The UN organised an
unprecedented series of World Conferences on the environment
(Rio, 1992), Human Rights (Vienna 1993), Women, (Beijing
1995), World Social Summit in 1996, and Human Settlement 1997
– each exceeding the prior in the number of delegations,
especially NGO delegations, and in the number of pages for
documents produced. This was a true governmentality: world
government by world conferences adopting universal standards.
It was topped by the establishment of the WTO in 1995 with,
above all, a unified dispute-settlement mechanism – a
constitution for international trade law, many claimed. And
the piles of reports by States parties in the offices of
human rights treaty bodies grew, and like the case-load at
the European Court of Human Rights in Strasbourg and its
inter-American Equivalent.
And yet, there was some uneasiness about whether this did
suggest international governance through international law. I
remember that as I read the invitation to the UN Conference
12
on International Law in 1995 in New York, to celebrate the
UN’s 50th anniversary under the label “international law as
our common language” (a global Esperanto) – the letter
carefully explained that the invited participants should
finance their trip themselves. Something was amiss.
All this activity was precisely parallel to the three
developments I outlined at the outset: deformalization,
fragmentation, empire. The Security Council did not enact the
rule of law – quite the contrary. It remained as selective as
always while its sanctions administration arises today
significant rule of law problems. The World Conferences did
not create law: and their wish-lists remain largely
unfulfilled, as the UN’s Millennium declaration of 2000 made
clear and as international priorities have moved elsewhere.
And lawyers debate whether the WTO Appeals Body is entitled
to use other law than special WTO law in its judgements.
In 2001 I became a member of the UN’s International law
Commission. Carrying an electoral campaign I visited in the
autumn of 2000 several UN agencies in Geneva: High
Commissioner of Human Rights, High Commissioner for Refugees
and the ICRC. For each I asked, “what can the Commission do
for you?” In each, the response was predictable, and crystal-
clear – “nothing”. “Keep out of this field, please”. There
Public international law could give nothing to human rights,
refugees, or victims of armed conflict. Much better that
those three organisations deal with the problems. I suppose
they were not wrong. It is hard to see how the seasoned
lawyer-diplomats of the Commission could have improved upon
the performance of those organisations, committed for decades
to the cause of human rights or relieving the plight of
refugees or of the victims of armed conflict. Had I walked
over to the WTO, the response would have been the same, of
13
course, but I knew already beforehand that would have been
pointless.
So what happened in the 1990's was that a fundamental
discrepancy was revealed between the governance ethos and
public international law. The latter seemed always somehow
obstructive of the right action, to set too stringent
standards, or allow too loose standards, or make standards
unsuited for the latest technology, the latest need. 1989 was
indeed a fundamental change in the sense that it could open
the door to the governance ethos: finally we can do things,
nobody threatens us with nuclear weapons. That governance
ethos however clashed head-on with a law that was always
somehow in the wrong place, formalistic, and old-fashioned.
And let me be clear: it was the good people who thought this.
It was they who felt that, well, if the law does not permit
us to do what is right, then all the worse for law. This
became clear in the Kosovo crisis.
Now the rules on the use of force are surely among the least
disputes international law. And yet, in the spring of 1999
many of us, myself included, advocated their violation: the
bombing of Serbia was "illegal but necessary". "Illegal but
necessary" - the two parts of that sentence were not weighted
equally: law was secondary to - well – political necessity.
And we know why. Because this argument arose from a
governance mindset. We could set law aside as we think ofit
only as an instrument of governance, as a pointer to useful
purposes. If the law fails to lead into those purposes, or
worse, obstructs them, then of course there is no reason to
apply it. Legal rules on the use of force, sovereignty or
non-intervention, for instance, are not sacred myths. They
were not given to us on Mount Sinai. We honour them to the
14
extent that they enable people to rule themselves, for
example. And if the people have been taken hostage by a
tyrant, then honouring those rules – the mere form of them –
will bring about precisely the enslavement that we wanted to
prevent. Surely that purpose is more valuable than the pure
form of those rules.
The same with all international law. We follow the emission
reduction schedule of chlorofluorocarbons (CFS) under Article
2 of the 1987 Montreal Protocol on the protection of the
Ozone Layer because we assume that it will reduce the
depletion of the ozone layer and the incidence of skin
cancer. But what if it were shown that ozone depletion or
skin cancer bears no relationship to the emission of CFC's?
In such cases we would immediately look to the purposes of
those rules so as to avoid applying them. Who would be ready
to close a profitable refrigerator factory, and send its
workers jobless, merely because some obscure international
rule says so. The European Union will continue to uphold its
ban over the import of hormone meat whatever may be said by
a WTO panel. And so it should.
In other words, the governance mindset recognises no
independent compliance pull for the pure form of the law.
After all, international law is just a set of diplomatic
compromises made under dubious circumstances for dubious
objectives. We use it if it leads into valuable purposes. And
if it does not lead us into those purposes - well - then that
is all the worse for law.
Here is where the confident European analogy with domestic
society breaks down. At home, law constrains as it is
embedded in the routines of our social lives. A rule is a
rule is a rule: shut up and obey! The driver must stop by the
15
red light on a clear Sunday morning with no car in sight.
This is so because we do not want to encourage drivers to
think for themselves. The benefits of abstract rule-obedience
weigh so much more heavily than the little inconvenience of
waiting until the light turns green. Perhaps in one of the
thousands-upon thousands of cases where the rule is applied,
some real benefit ensues: a pedestrian with a dark coat was
saved, after all.
None of this works in the international world where instances
of law-application are few, and the benefits of abstract law-
obedience obscure in comparison to the short-term gains of
acting decisively now. Heaven knows international lawyers
have tried to argue otherwise. They have suggested that self-
interest might binds States to the law – well, this may be
true if the state sees that self-interest – but in such case,
of course, no law is needed. They have suggested that
international law is a useful means of communication – that
may be true, but is no argument against breaking it if other
values than diplomatic intercourse are at stake. It may be
true that international law is indispensable in providing the
framework in which State interests are shaped – but that
historical explanation looks backwards and leaves us puzzled
if we think it should count as an argument for not doing
something that seems good now.
For the governance mindset law is both a bridge and a wall.
It is a bridge into good purposes. But it also a wall in that
it may also frustrate some of those purposes. For a powerful
actor, in possession of many policy-alternatives - the actor
who sees in international law an instrument of governance -
the law as bridge seems pointless inasmuch as it can anyway
carry through its purposes, and as a wall, decidedly
16
counterproductive. That is what seems apparent in
deformalization, fragmentation and, above all, in Empire.
Critique of the idea of international law as an instrument of
governance
Examining international law through the governance mindset
creates a consistent bias in favour of interests well-
represented in international institutions and actors with
sufficient resources to carry out the policy they choose as
the best. It is the mindset through which the conservative
legal theorist and international lawyer Erich Kaufmann in
1911 characterised the law applicable to the German Empire:
"who can, may also". For the technical expert, the special
interest and the emperor the form of the law is only a
pointer towards good objectives; if those objectives are
known, and attainable, then the law's form presents no added
value. On the contrary, insistence on the form will always
seem obstructive; reliance on myth over reason.
But I suggest that the governance mindset is itself a form of
mythical thinking, a thinking that believes that behind the
law's form – accessible to all of us – is a blueprint of a
better world – a world of freedom, democracy, good
governance, market economics. There is no such blueprint. Law
reflects legislative compromises, is open-ended and bound in
clusters reflecting conflicting considerations. No doubt
Article 2(4) of the UN Charter aims for "peace". Yet it is
equally clear that "peace" cannot quite mean what it seems to
say. It cannot mean, form instance, that nobody can ever
take up arms: the UN Charter allows self-defence and action
under the Security Council. It is both pacifist and militant
at the same time and received its acceptability from being
17
so. The European Convention on Human Rights seeks to protect
individuals' right to freedom and right to security. But one
person's freedom conflicts with another's security. The will
of the drafters is the language of the instrument. Beyond
that, there is only speculation about what might be a good,
realistic, reasonable way to apply it.
The governance mindset relies on a myth of full knowledge,
manifest destiny, Messianic myth of the better tomorrow, the
heroic myth: we can do it! This myth perpetuated colonial
domination, drove Stalin to collectivization, motivated the
Khmer Rouge and the Interahamwe, the dream of a greater
Serbia. You cannot make an omelette without breaking the
eggs. The governance myth sacrifices today for a better
tomorrow, an eternally postponed tomorrow. Perhaps Iraq will
be democratic, and free. But today, looting Iraqis must shot
to provide an example. Maybe free trade fill bring prosperity
to Africa tomorrow. But today, the Africans must suffer.
The governance mindset proposes a new vocabulary to replace
the law's antiquated one: globalization, ethics, democracy,
good governance, market. These are words whose meanings it
can control due to its predominant position in the
deformalised, fragmented or imperial institutions. To enquire
about the meaning of such words, one should ask what they
reveal and what they hide. Do they, for instance, draw
attention to the fact that, according to a recent UNDP
report, the combined wealth of 200 richest families in the
world is eight times as much as the combined wealth of the
528 million people in all the least developed countries?
That more than 6 million children under 5 years die annually
of malnutrition created of causes that we have the economic
and technological resources to prevent? The governance
mindset upholds the policy of those who are in a determining
18
position in governance institutions. But what does it offer
to Third World social movements seeking to prevent the
construction of a dam as part of development project financed
by the experts of a regional development organisations with
those of the world bank?
The governance mindset looks beyond formal law into the
purposes of that law. But what if there is no agreement on
those purposes? As Max Weber knew, the deformalization of the
law involves transferring decision-making power from the
legislator to the bureaucrat: it privileges the purposes of
the governor against that of the legislator. the same with
fragmentation and empire. The division of international
regulation into functionally delimited branches transfers
power to technical experts well-positions in the specialised
bodies administering those branches. Empire is good idea if
we assume the emperor is good and knows the truth. But then,
after a bad night, even an enlightened emperor may have his
servants whipped.
But is it possible to defend international law without having
to take on the governance mindset? I think it is. This
involves taking seriously the empty form of the law as a
surface on which social groups can make their claims heard in
universal terms and claim that those in powerful positions
are accountable for the decisions they make. Let me explain.
The words in the Charter of the United Nations such as
sovereignty, self-determination, human rights, and non-
intervention do not have self-evident purposes. They are what
"we" want them to mean. But what they do achieve,
independently of what we mean by them, is that they enable
the formulation of our (particular) grievances in social
terms. The private violations appear as not only something
that happened to me, but as something that happened to
19
everyone in my position. To claim a right is different from
claiming a benefit or appealing to charity. It is to invoke
that which applies to all, against the violence that the
particular administrative act is. To be able to say that some
act is "aggression" or that the deprivation one suffers is a
"human rights violation" is to lift a private grievance to
the level of public law violation, of concern not only to the
victim but to the community. As German formalist
jurisprudence well knew, law constructs a community, a
Rechtsgemeinschaft. As it describes individuals and groups as
claimants of rights or beneficiaries of entitlements, it
situates them as members of a public order, to whom other
members and the powerful institutions of that order are
accountable.
In other words, international law is not only about governing
things. It is also about providing protection to vulnerable
groups whose interests are not well represented in governance
bodies. It enables those groups to articulate their claims
not as claims of some special interests but as the interests
of the (internatiional) society as a whole. This, I think, is
visible in international law's utopian, aspirational face,
expressed in general notions such as "peace", "sovereignty",
jus cogens, non-combatant immunity and so on - expressions
that in countless legal texts appeal to solidarity within a
community. Because there is no agreement about what such
words mean, law's virtue cannot reside in such meanings.
Instead of what it says, law's virtue resides in how it says
it. As the flat, substanceless surface of the legal form, law
expresses the universalist principle of inclusion at the
outset. "Only a regime of noninstrumental rules, understood
to be authoritative independent of particular beliefs or
purposes is compatible with the freedom of its subjects to be
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different".8 The governance mindet that always looks to the
purposes of the rules creates a hierarchical structure that
is built on this: either you are with us, or against us. By
contrast, the pure form of the law unites the particular with
the universal, a claim by me is a claim by everyone in my
position. A claim by me invokes also my opponent, the alleged
wrong-doer, as part of the universal that the legal system
represents. That is why Guantanamo is so shocking: the
completeness of the exclusion it undertakes we recognise as
such precisely because it creates a legal vacuum.
*****
Let me end with a story. Last June perhaps 5 miles inland
from the centre of the city of Recife, Brazil, on a pink
concrete wall, I saw a text in Portuguese that read "No to
the illegal war of Bush". Why was it there? The inhabitants
of Recife were in no way touched by the military activities
of a handful of Western countries in the Middle East. Indeed,
the inhabitants of this suburban quarter of a major South
American city seemed to have a number of other things to be
concerned over – massive and endemic poverty, enormous
differences of economic wealth, domestic violence, and so on.
And still, not only that one concrete wall, but countless
pieces of graffiti all over the city condemned the war waged
by "Bush" in no uncertain terms and not just as "wrong" but
as "illegal". Nor was this phenomenon any Brazilian
idiosyncracy. In the city of Helsinki where I live, on my
street in the lamppost nearest to the door to my flat was a
sticker that declared the war against Iraq "illegal". And in
8 Terry Nardin, 'Legal Positivism as a Theory of International Society', in Mapel-Nardin, InternationalSociety. Diverse Ethical Perspectives (Princeton, 1998) p. 31.
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Geneva where I was attending the UN International Law
Commission the week after leaving Recife there was an
enormous demonstration to protest the meeting of the "G8". A
large number of the protesters carried slogans that condemned
the Iraqi war in uncompromising terms: the war and the
ensuing occupation were "illegal". Nor is this only my
experience. The protests against the (then) planned Iraqi war
that took place on 15 February 2003 gathered on the streets
of the world more people than any other event since the end
of the Second World War.
The point I want to make is that the protest against "Bush's
war" has nothing bureaucratic and routine about it: it does
not arise from a governance mindset, indeed, it sees that
mindset as party of the problem. It focuses on a single fact
and event, and condemns that event often as not merely
"wrong", but "illegal". This lifts it from being yet another
brick in the wall of globalisation. It becomes a singular
scandal that cannot be explained away as a geographical or a
"third world" problem, or a problem about capitalism, or
"market", the "Washington consensus" or even "American
imperialism". It may be all of these but there is something
more in this scandal. That fact is that the Iraqi war was so
patently and arrogantly "illegal" that even its protagonists
never really cared to make a serious defence of it in terms
of its lawfulness but were contented with half-hearted,
manipulative generalities about its purposes - justifications
in which it is today difficult to see anything beyond
cynicism.9
The scandal lies in the mockery that the war has sought to
make of the desire for a world of justice and equality. It is
9 For discussion, see Thomas M. Franck, 'What Happens Now? The UnitedNations after Iraq', AJIL (2003), p. 607-621.
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a paradox that while diplomats and academics now often
declare central aspects of international law "dead" or at
least in a severe crisis, there has never in the past half-
century been such widespread invocation of international law
as today. This is significant.
The reaction to the US occupation of Iraq raise the theme of
the law conceived not in terms of a blueprint or a positive
programme, but as the surface on which political claims may
be articulated as something more than claims about special
interests or privileges. The struggles in Recife, Geneva, or
Helsinki are different and the claims raise at these
locations arise from different experiences. But though the
global trade regime, environmental degradation and the
occupation of Iraq may have different victims and follow
different paths of rationality, indeed differ as problems of
governance, they are nonetheless not hermetically isolated.
They form a pattern, a hierarchy, and a particular
configuration of forces.
Law acts here through scandalization - creating a community
from its ability to articulate a particular act as not just a
violation of a particular interests, but a universal wrong.
That the war was condemned as a "violation of international
law" or an attack on the "rights" of Iraqi civilians is to
appeal to something beyond particular interest, privileges or
charity enjoyed or claimed by someone. Such an invocation
appeals to something that concerns every member of a
projected (legal) community, a violation that touches no-one
in particular but everyone in general. It makes the point
that the coalition actions are not an affair between the
Iraqis and the Americans (or indeed between Bush and Saddam)
but that everyone has a stake in them because the violation
is universal. "I do not condemn this action because it is
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against my interests or preferences. I condemn it because it
is objectively wrong, a violation not against me but against
everyone."
International law may act precisely as an instrument through
which particular grievances may be articulated as universal
ones and in this way, like myth, construct a sense of
universal humanity through the act of invoking it. From such
a perspective, the project of universal justice appears as a
horizon at the intersection of a public realm of States
regulated by international law and the civil society reaching
beyond sectarian interests. That this intersection appears
only occasionally, and even then in connection with events of
exceptional magnitude, even scandal, is an aspect of the
difficulty that any fundamental challenge to the iron laws of
power.