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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

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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.

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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.

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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.

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(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.

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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.

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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.