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What is international law for?

Martti Koskenniemi

1. The Paradox of Objectives

Attempting to answer the question in the title one meets with a familiar paradox. On the one hand, it seems indisputable that international law "has a general function to fulfil, namely to safeguard international peace, security and justice in relations between States".¹ Or as Article 1 of the UN Charter puts it, the organisation has the purpose to "be a centre for harmonizing the actions of nations in the attainment of […] common ends" such as international peace and security, friendly relations among nations, and international co-operation. Such objectives seem self-evident and have never been seriously challenged. On the other hand, it is hard to see how or why they could be challenged - or indeed why should one be enthusiastic about them - because they exist at such high level of abstraction as to fail to indicate concrete preferences for action. What do "peace", "security" or "justice" really mean? As soon as such words are defined more closely, disagreement emerges. To say that international law aims at peace between States is perhaps already to have narrowed down its scope unacceptably. Surely it must also seek to advance "human rights as well as the rule of law domestically inside States for the benefit of human beings…".² But what if advancing human rights would call for the destruction of an unjust peace?

In the end, very little seems to depend on any general response to the question "what is international law for?". The real problem seems always to be less about whether there should be "peace", "security" or "human rights" than about how to resolve interpretative controversies over or conflicts between such notions that emerge when defending or attacking particular policies. There is no disagreement about the objective of peace in the Middle East between Israel and the Palestinian people. But if enquired what "peace" might mean for them, the protagonists would immediately give mutually exclusive answers. Nor is the "Asian values" debate about "for" or "against" human rights but what might such rights be and how they should be translated into social practices in the relevant societies. To enquire about the objectives of international law is to study the political preferences of international actors - what it is that they wish to attain by international law. And because those preferences differ, the answer to the question in the title can only either remain controversial or then be formulated in such broad terms as to contain the controversy within itself - in which case it is hard to see how it could be used to resolve it.

It would therefore be wrong to think of the paradox of objectives as a technical problem that could be disposed of by reflecting more closely on the meaning of words such as "peace", "security" or "justice" or by carrying out more sophisticated social or economic analyses about the way the international world is. Such notions provide an acceptable response to the question "what is international law for?" precisely owing to their ability to gloss over existing disagreement about political choices and distributional priorities. If they did not work in this way, and instead permanently preferred some choices over other choices, they would no longer be able to do the service we expect of them. In accordance with the founding myth of the system, the Peace of Westphalia in 1648 lay the basis for an agnostic, procedural international law whose merit consisted in tolerance for the religious ideas that had torn Europe in the past. It would treat all nations as sovereign equals, regardless of their religious or constitutional system.³ Since then, international law has occasionally been accused of having taken sides - to support European supremacy in the colonies or to uphold the privileges of the Great Powers in the UN Security Council, for example. The point of such critiques has been to vindicate Westphalia, to show that in some respect the law has failed to live up to the ideal of neutrality.

In other words, international law receives acceptability from its not seeking to impose any external normative ideal on the international society. The objectives of that society arise from itself: there are no transcendental notions of the good that international law should realise. If there is an "international community", it is not a teleological but a practical association, a system not designed to realise ultimate ends but to co-ordinate practical action between existing communities.⁴ Sovereign equality builds on this: because there are no natural ends, every member of the international society is free to decide on its own ends, and to that extent, they are all equal. The law that governs them is not natural but artificial, created by the sovereigns through the processes that are acceptable because neutral.⁵ It follows that the objectives of international law cannot be dissociated from the objectives of the members of the international society. The law is the form that covers the substance of what they want. To say that international law is for "peace", "security" and "justice" is to say that it is for peace, security and justice as agreed and understood between the members of the system.⁶

What this means for international legal argument can be gleaned, for instance, from the opinion of the International Court of Justice in the Reservations case (1951). Here the Court was called upon to examine the admissibility of reservations to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Court first outlined what seemed a natural consequence of the principles of neutrality and sovereignty, namely that no reservation should be effective against a State that has not agreed to it. To stay with this understanding, however, might have undermined the Convention by creating a system in which some reservations were in force in regard to some States (namely those accepting them) but not against others while each non-accepting State would be free to regard the reservation-making State as not a party to the Convention at all. This would have gone against the universal nature of the Convention. Thus, the Court continued, a State having made a reservation that has been objected to by some of the parties, may still be held a party to the convention if the reservation is compatible with the “object and purpose” of the Convention. At this point, then, the Court moved to think of the law expressly in terms of its objectives. However, there were no objectives to the Convention that were independent from the objectives of the parties to the Convention. Thus, it was up to each party to make the determination "individually and from its own standpoint".⁷

Such an argument defines the objectives of international law in terms of the objectives of the (sovereign) members of the international society - in this case the society formed by the parties to the Genocide Convention - bringing to the fore two types of problems: what will happen in case the States disagree about the objectives? And why would only State objectives count?