The essay (see  here) examines some of the changes in my own thinking about the politics of engaging in international law since the original publication of the article (see here) that opened the first issue of EJIL in 1990. The essay points to the change of focus from indeterminacy (to which I am as committed as ever) of legal arguments to the structural biases of international institutions. I still think the study of language must remain an important part of the critical project. That study must now focus on the idiolect of the particular technical fields have occupied the centre of the discipline. In fact, the emergence of numerous specialised fields of international law, suggests that the centre of the discipline may have completely collapsed. Much of this has to do with the politics of definition, that is to say, the strategic practice of defining international situations and problems in new expert languages so as to gain control over them. There are two distinct approaches to this internal power-struggle. One, persuaded by the regimes which are bold in ambition and able to rely on the support of some powerful sector of the political world aims at changing the general bias of the law by bringing it closer to its own. Another, more modest in its ambitions but not necessarily less effective, aims at establishing patterned exceptions to the well established classical concepts, seemingly without intercepting the application of these old biases on a general level. This approach does not establish new rules, but new exceptions to the old rules owing to new emerging “challenges”.

With this, the politics of international law has taken the form of struggles for jurisdiction. Because each specialist vocabulary claims to be applicable to everything, this conflict cannot be managed by comparing them against each other. Each is applicable and the question of whom to empower can only be answered after the prior question “which bias do you prefer” has received a response.

This new political intervention in international law, the politics of re-definition, is based on fragmentation. It involves strategic definitions of situations by reference to a technical idiom so as to secure the application of the expertise related to that idiom with all its structural biases. The ultimate goal of the politics of definition is to upgrade a particular idiom to the level of universality, securing to its methods (and ultimately its outcomes) the character of neutrality or, even better, of “reality” itself. The consequences of such approaches, which conceal the application of structural biases behind the application of “objective reasons”, calls for taking a highly critical attitude toward the increasing managerialism in the field.

Committing to one of these institutions (or to that end even the prevalence of one over the others) does not resolve any of the problems of indeterminacy, since every particular field has its own controversies and compromises. (more…)