The Politics of International Law

Martti Koskenniemi

• Publisher: Hart Publishing
• Year: 2011
• Print ISBN: 9781841139395
• eBook ISBN: 9781847317766
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Today international law is everywhere. Wars are fought and opposed in its name. It is invoked to claim rights and to challenge them, to indict or support political leaders, to distribute resources and to expand or limit the powers of domestic and international institutions. International law is part of the way political (and economic) power is used, critiqued, and sometimes limited. Despite its claim for neutrality and impartiality, it is implicit in what is just, as well as what is unjust in the world. To understand its operation requires shedding its ideological spell and examining it with a cold eye. Who are its winners, and who are its losers? How - if at all - can it be used to make a better or a less unjust world? In this collection of essays Professor Martti Koskenniemi, a well-known practitioner and a leading theorist and historian of international law, examines the recent debates on humanitarian intervention, collective security, protection of human rights and the 'fight against impunity' and reflects on the use of the professional techniques of international law to intervene politically. The essays both illustrate and expand his influential theory of the role of international law in international politics. The book is prefaced with an introduction by Professor Emmanuelle Jouannet (Sorbonne Law School), which locates the texts in the overall thought and work of Martti Koskenniemi.

Part I

The Politics of International Law

1

Between Apology and Utopia: The Politics of International Law

This is an early summary of the structuralism expounded in my From Apology to Utopia. The Structure of International Legal Argument (Helsinki 1989). It was published in the first issue of the European Journal of International Law 1990 and lays a foundation for the reading of all my later work. The article is inspired by writings in the Critical Legal Studies tradition in the United States, above all by those of Professor David Kennedy (Harvard Law School). However, it also draws upon structural linguistics (Saussure), argument theory (Perelman) and the mélange of analytical hermeneutics and critical theory that formed the orthodoxy in Finnish legal theory in the 1980s. The main point here is to show how indeterminacy works in international legal argument. The article works towards an immanent critique of international law: that is, a critique based on premises that are themselves accepted in professional international law discourse. As there is no necessary closure to this discourse, but arguments continue interminably, any closure must come from outside the structures of law itself and such closure may be characterised as a politics of international law.

The Flight from Politics

IT MAY BE a matter of some controversy among historians as to when one should date the beginning of the modern states-system.¹ Less open to debate, however, is that somehow the idea of such a system is historically as well as conceptually linked with that of an international Rule of Law. In a system where the units are assumed to serve no higher purpose than their own interests and which assumes the perfect equality of those interests, the Rule of Law seems indeed the sole thinkable principle of organisation – short of the bellum omnium. Since the publication of Emerich de Vattel’s Droit des gens ou principes de la loi naturelle appliquées à la conduite et aux affaires des nations et des souverains in 1758, jurists have written about international matters by assuming that the liberal principles of the Enlightenment and their logical corollary, the Rule of Law, could be extended to apply in the organisation of international society just as they had been used in the domestic one.²

Notwithstanding the historical difficulty with dates and origins, the connexion between the Rule of Law and the principles of the Enlightenment appear evident. Of the latter, none seems more important than that of the subjectivity of value.³ Hobbes writes: ‘For one calleth wisdom what another calleth fear and one cruelty what another justice; and prodigality what another magnanimity … And therefrom such names can never be ground for any ratiocination’.⁴ However much later liberals may have disliked Hobbes’ substantive conclusions or his political realism, the one thing which unites them with Hobbes is their criticism of relying upon natural principles to justify political authority. Appealing to principles which would pre-exist human society and be discoverable only through faith or recta ratio was to appeal to abstract and unverifiable maxims which only camouflaged the subjective preferences of the speaker. It was premised on utopian ideals which were constantly used as apologies for tyranny.

From the simple denial of the existence of principles of natural justice – or at least of our capacity to know them – follow the three liberal principles of social organisation: freedom, equality and the Rule of Law. If human beings are not born to a world of pre-existing norms, then they are born free; if there are no antecedent principles establishing the relative worth of individuals, the individuals must be assumed equal. Finally, freedom and equality are guaranteed only if social constraint is governed by public, verifiable and determining rules: ‘A free people obey but it does not serve; it has magistrates but not masters; it obeys nothing but the laws, and thanks to the force of laws, it does not obey men’.⁵

The fight for an international Rule of Law is a fight against politics, understood as a matter of furthering subjective desires, passions, prejudices and leading into an international anarchy. Though some measure of politics is inevitable (as we commonly assume), it should be constrained by non-political rules: ‘… the health of the political realm is maintained by conscientious objection to the political’.⁶

The diplomatic history of the nineteenth century is a history of such a fight. Since the Vienna Congress of 1814–15 and the defeat of Napoleon, the relations between European powers were no longer built on one power’s search for primacy but on a general pursuit of the maintenance of the balance of power, guaranteed by complicated legal procedures and alliances.⁷ As contemporaries increasingly saw Europe as a ‘system’ of independent and equal political communities (instead of a respublica Christiana), they began to assume that the governing principles needed to become neutral and objective – that is, that they should be understood as law.

The legal scholarship of the nineteenth century interpreted and systematised diplomatic practice into legal rules. It assumed that the behaviour of European states was determined and explicable by reference to a body of (European) public law. The plausibility of this assumption relied on the procedural character of that law. Containing mainly rules concerning diplomatic and consular contacts, procedures for attaining statehood, territory or neutral status, it did not severely restrict the ends which European sovereigns attempted to pursue. In particular, it renounced theories of the just war; war now became one political procedure among others.⁸ Though the professional lawyers of the nineteenth century did speak about justice in the conduct of the sovereigns’ affairs, they no longer thought of justice as material principles. Woolsey put the matter adroitly:

By justice, however, we intend not justice objective, but as it appears to the party concerned or, at least, as it is claimed to exist. From the independence of nations it results that each has a right to hold and make good its own view of right in its own affairs.⁹

Although twentieth century lawyers have not looked too kindly upon the scholarship of the preceding century, they never rejected the ideal of the Rule of Law. On the contrary, the reconstructive scholarship which emerged first from the catastrophe of the First World War and then in the 1950s and 1960s accused the pre-war doctrines of not going far enough to uphold the Rule of Law. Wherever attempts by jurists to construct a solid framework of public law had faltered, it had done so not because of some defect in the liberal assumptions behind this project but because jurists had deviated from them.

The vision of a Rule of Law between states (which re-emerged for example in United Nations General Assembly Resolution 44/23 [15 November 1989] declaring the period 1990–99 as the ‘United Nations Decade of International Law’) is yet another reformulation of the liberal impulse to escape politics. So strong is the grip of this vision that the representative of the Soviet Union at the same session of the General Assembly explained that in his view to restructure the basis of international relations there was a need to ‘arrive at a comprehensive international strategy for establishing the primacy of law in relations between states’.¹⁰ With the end of the Cold War, strengthening the Rule of Law nationally and in the international world has now become a widely supported series of UN projects.¹¹

Throughout the twentieth century, reconstructive doctrines have claimed that what merits criticism is the corruption of the Rule of Law either in the narrow chauvinism of diplomats or the speculative utopias of an academic elite. If only the Rule of Law can be fortified to exclude these contrasting distortions, then the jurist’s part in the construction of a just world order has been adequately executed.

In this chapter, however, I shall extend the criticism of the liberal idea of the Rechtstaat, a commonplace in late modem western society,¹² into its international counterpart. I shall attempt to show that our inherited ideal of a World Order based on the Rule of Law thinly hides from sight the fact that social conflict must still be solved by political means and that even though there may exist a common legal rhetoric among international lawyers, that rhetoric must, for reasons internal to the ideal itself, rely on essentially contested – political – principles to justify outcomes to international disputes.¹³

The Content of the Rule of Law: Concreteness and Normativity

Organising society through legal rules is premised on the assumption that these rules are objective in some sense that political ideas, views, or preferences are not. To show that international law is objective – that is, independent from international politics – the legal mind fights a battle on two fronts. On the one hand, it aims to ensure the concreteness of the law by distancing it from theories of natural justice. On the other hand, it aims to guarantee the normativity of the law by creating distance between it and actual state behaviour, will or interest. Law enjoys independence from politics only if both of these conditions are simultaneously present.

The requirement of concreteness results from the liberal principle of the subjectivity of value. To avoid political subjectivism and illegitimate constraint,¹⁴ we must base law on something tangible – on the actual (verifiable) behaviour, will and interest of the members of society – states. The modern view is a social conception of law.¹⁵ For it, law is not a natural but an artificial creation, a reflection of social circumstances. As such, its contents can be impartially rarified by studying those circumstances closely.

According to the requirement of normativity, law should be applied regardless of the political preferences of legal subjects. It should not just reflect what states do but should be critical of state policy. In particular, it should be applicable even against a state which opposes its application to itself. As international lawyers have had the occasion to point out, legal rules whose content or application depends on the will of the legal subject for whom they are valid, are not proper legal rules at all but apologies for the legal subject’s political interest.¹⁶

Stated in such a fashion, I believe that the requirements of legal objectivity vis-à-vis political subjectivity are met. For if the law could be verified or justified only by reference to somebody’s views on what the law should be like (ie theories of justice), it would coincide with their political opinions. Similarly, if we could apply the law against those states which accept it, then it would coincide with those states’ political views.

This argumentative structure, however, which forces jurists to prove that their law is valid because it is concrete and normative in the above sense, both creates and destroys itself. For it is impossible to prove that a rule, principle or doctrine (in short, an argument) is both concrete and normative simultaneously. The two requirements cancel each other out. An argument about concreteness is an argument about the closeness of a particular rule, principle or doctrine to state practice. However, the closer to state practice an argument is, the less normative and the more political it seems. The more it seems just another uncritical apology for existing power. An argument about normativity, on the other hand, is an argument which intends to demonstrate the rule’s distance from state will and practice. The more normative (ie critical) a rule, the more political it seems because the less it is possible to argue it by reference to social context. It seems utopian and – like theories of natural justice – manipulable at will.

The dynamics of international legal argument are provided by the constant effort of lawyers to show that their law is either concrete or normative and their becoming thus vulnerable to the charge that such law is in fact political because it is either apologist or utopian. Different doctrinal and practical controversies turn out as transformations of this dilemma. It lies behind such dichotomies as ‘positivism’/’naturalism’, ‘consent’/’justice’, ‘autonomy’/’community’, ‘process’/‘rule’, etc, and explains why these and other oppositions keep recurring and do not seem soluble in a permanent way. They recur because it seems possible to defend one’s legal argument only by showing either its closeness to, or its distance from, state practice. They seem insoluble because both argumentative strategies are vulnerable to what appear to be valid criticisms, compelled by the system itself.¹⁷

This provides an argumentative structure which is capable of providing a valid criticism of each substantive position but which itself cannot justify any. The fact that positions are constantly taken and solutions justified by lawyers, demonstrates that the structure does not possess the kind of distance from politics for which the Rule of Law seems to posit. It seems possible to adopt a position only by a political choice: a choice which must ultimately defend itself in terms of a conception of justice – or then remain substantively unjustified. We accept it because that is what we do.

Doctrinal Structures

Two criticisms are often advanced against international law. One group of critics has accused international law of being too political in the sense of being too dependent on states’ political power. Another group has argued that the law is too political because it is founded on speculative utopias. The standard point about the non-existence of legislative machineries, compulsory adjudication and enforcement procedures captures both criticisms. From one perspective, this criticism highlights the infinite fexibility of international law, its character as a manipulable façade for power politics. From another perspective, the criticism stresses the moralistic character of international law, its distance from the realities of power politics. According to the former criticism, international law is too apologetic to be taken seriously in the construction of international order. According to the latter, it is too utopian to the identical effect.

International lawyers have had difficulty answering these criticisms. The more reconstructive doctrines have attempted to prove the normativity of the law, its autonomy from politics, the more they have become vulnerable to the charge of utopianism. The more they have insisted on the close connexion between international law and state behaviour, the less normative their doctrines have appeared. Let me outline the four positions which modem international lawyers have taken to prove the relevance of their norms and doctrines. These are mutually exclusive and logically exhaustive positions and account for a full explanation of the possibilities of doctrinal argument.

Many of the doctrines which emerged from the ashes of legal scholarship at the close of the First World War explained the failure of pre-war international doctrines by reference to their apologist character. Particular objects of criticism were ‘absolutist’ doctrines of sovereignty, expressed in particular in the Selbstverpflichtungslehre, doctrines stressing the legal significance of the balance of power or delimiting the legal functions to matters which were unrelated to questions of ‘honour’ or ‘vital interest’. Writings by Hersch Laut...

Table of contents

• Cover
• Title Page
• Copyright
• Preface
• Acknowledgements
• Contents
• Koskenniemi
• Part I: The Politics of International Law
• Part II: The Law and Politics of Collective Security
• Part III: The Politics of Human Rights
• Part IV: Limits and Possibilities of International Law
• Part V: The Spirit of International Law
• Index