Professor Iain Scobbie, is the Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies, University of London

The burden of Professor Koskenniemi’s article appears to bear an uncanny likeness to St Teresa of Avila’s aphorism that answered prayers cause more tears than those that remain unanswered. His article is both a restatement and development of the concerns he addressed twenty years ago in “The Politics of International Law”, namely that law is inevitably indeterminate and must always defer to contested political assumptions (or discretion) in order to impose a decision and that, consequently, international lawyers must be reflective and take responsibility for their actions in both the practice and doctrinal development of the discipline. He has consistently argued that a failure to examine one’s actions contributes to the perpetuation of the problems that international law claims to alleviate. There is merit in this argument: as Colin Warbrick pointed out, a refusal to think about what one is doing may amount to a “latent theory” which rests content with the status quo and seeks neither to question nor justify either the substance or practice of international law (see Warbrick C, “The theory of international law: is there an English contribution?”, in Allott P et al, Theory and international law: an introduction (BIICL: London: 1991).

But to speak of the “discipline” of international law is perhaps to impose a falsely monolothic character on the enterprise. As Professor Koskenniemi argues, one of the characteristics of contemporary international legal practice is specialisation, where discrete sets of substantive issues are packaged into categories such as humans right law or trade law or environmental law, each of which have attendant specialised vocabularies that intellectually structure the possibilities and limits of the given field. Special regimes have thereby been created “that cater for special audiences with special interests and special ethos”. Each of these embody structural biases in the form of dominant expectations about the values, actors and solutions appropriate to that specialisation, which thus affect affect practical outcomes . These expectations differ from specialisation to specialisation. Participants conceptualise issues in ways which locate them within a particular specialisation in order to pull on the biases encoded within that specialisation. In doing so they highlight some elements of a situation while disregarding others. This act of classification is often seen as natural or neutral, rather that one which chooses between contested categories which emphasise conflicting values and thus determine the range of possible or permissible outcomes. Consequently international lawyers should examine the implications of their classification of an issue. Professor Koskenniemi agrees with David Kennedy’s observation that international lawyers often have recourse to using specialised vocabularies and institutions without reflecting on their effect in the real world, but continues that if his indeterminancy thesis is correct, then these vocabularies and institutions must themselves be sites of controversy and compromise. Thus an agreement on broad objectives may lead to disagreement on how these are to be achieved, and different political approaches may be adopted to the same given issue—“One needs to know whose understanding of ‘human rights’ or which notion of security ought to be preferred and, once that preference is fixed, what type of action will best support it”. This requires detachment–“strategic sensitivity and the pursuit of critical distance”—from the institution chosen and the objectives it pursues in order that one is not blinded by, but rather may apprehend, its particular structural bias.

Professor Koskenniemi’s indeterminacy thesis may be seen to have affinities with one of the principal strands of American legal realism, rule scepticism, which argued that uncertainty lies in the very formulation of rules, and thus judicial decisions cannot not lay claim to being simply the inexorable application of the law to the issue in question. (more…)