Dr Jason Beckett is a Lecturer in Law at the University of Leicester (UK). His publications include The End of Customary Internaitonal Law: A Purposive Analyis of Structural Indeterminacy (2008) as well as a couple of articles in the European Journal of International Law (in 2001 (here) and 2005) dealing  with international law theory.

It is a privilege, as well as a pleasure, to be given the opportunity to comment (once more) on the works of Martti Koskenniemi. To be asked to do so in tandem with Iain Scobbie brings a symmetry to that pleasure. Both are scholars I have long admired, and men I am honoured to consider friends. But the symmetry runs deeper than this, as whilst Iain wrote the best review essay of the first edition of Koskenniemi’s book: From Apology to Utopia (FATU), it is my claim to fame to have written (by far I suspect) the longest review of the second (see here). Martti’s thought has evolved in those twenty years, as has my response to it. Yet his has retained a consistency which mine has not. Iain’s, I believe, comes somewhere in between. I suspect he remains opposed to the central strands of Koskenniemi’s thinking, yet he has learned from them, softening his stance in some regards. But what constitutes Koskenniemi’s thought? What, if anything, is its central tenet?

Indeterminacy, contingency, false necessity, critique, and perhaps pessimism (or, from another perspective, an unjustifiable utopian optimism) seem obvious candidates; but I would reject them all, not outright, but as epiphenomenal. To my mind, the central thrust of Martti’s work is a demand for responsibility, a demand that we recognise and accept our implications in both the project of Public International Law (PIL), and its “effects in the world of outcomes”; (p. 12 – unless otherwise indicated, all page references are Koskenniemi’s latest EJIL article) a demand that we take responsibility for our choices.

But this demand is coupled to a resigned acceptance of the historical irony of (modern?) international law. In Koskenniemi’s narrative, PIL is (always) a normative project. Its best proponents, those who pursued their progressive politics through PIL. “International law was born from a move to defend a liberal-internationalist project in a time of danger and opportunity.” (p. 18) But international law was also a professional technique; indeed it adopted a technique of technicalisation and professionalisation precisely as the best way to pursue its (then) progressive mission.

The irony, of course, is that the means became an end. PIL bought into its own rhetoric of technical expertise, and the pursuit of politics became the effacement of politics. From a political project, PIL grew into a demand for the anti-political, the technical, the correct, the necessary. In this evolution, political responsibility was lost, replaced by technical expertise and false necessity. It was against this loss and this delusion that Koskenniemi’s own project – nothing less than the rebirth of a (cosmopolitan?) PIL – was initiated. That project has not changed, but in some ways, its target ‘mainstream PIL’ has.

PIL it is a Changin’:

The Politics of International Law sought to demonstrate the linguistic and structural indeterminacy of a PIL perceived – and perceiving itself – as unitary, an attempt (albeit doomed) to “make the scales fall from the eyes of the professionals”. (p. 8 ) Perhaps with a wider, though never to my knowledge explicitly articulated, ambition to unmask PIL publically; to demonstrate that the Emperor wore no clothes. An attempt to fracture the legitimatory ideology of PIL. Certainly, this was the effect it would have on me, but then, I belonged always to that most naïve class of international lawyer, the professional academic. (more…)

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…)

Editors Note: This is an updated featured post. More recent posts appear below

This week, we host an online discussion (see below) of the Special Anniversary Article by Prof. Martti Koskennimi which opens the current issue of EJIL. The full text of the article - ”The Politics of International Law – 20 Years Later” - is available here. On Monday, Professor Koskenniemi opens with a post which summarises his article and sets out some of his thinking on the topic. On Tuesday and Wednesday we will have responses by Professor Iain Scobbie (School of Oriental and African Studies, London) and Dr Jason Beckett (University of Leicester).

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The Journal of International Criminal Justice has announced the establishment of a prize in honour of Antonio Cassese. According to the announcement of the prize in the Journal of International Criminal Justice (see here)

This biennial prize will award €10,000 (ten thousand euro) to the author of the most original and innovative paper published in the Journal in the two years preceding the award. The aim is to enable the winner to undertake a research or publication project, or further studies in the field of international criminal law (including aspects relating to human rights, humanitarian law issues, as well as substantive and procedural law matters).

The prize is a fitting tribute to Judge Cassese who is one of the leading international lawyers of our generation and who has made an outstanding contribution to international criminal law. In addition to being a Professor of International law for most of his career, he was the first President of the International Criminal Tribunal for the Former Yugoslavia. Last month, the United Nations announced that Professor Cassese would be the President of the Special Tribunal for Lebanon which was established by the UN Security Council to prosecute those responsible for political killings in Lebanon, in particular the murder of former Lebanese Prime Minister Rafiq Hariri in 2005. He was also the Chair of the International Commission of Inquiry into Darfur, whose report was a precursor  the UN Security Council referring the situation in Darfur to the International Criminal Court.

Dr Caroline Foster is a Senior Lecturer in Law at the University of Auckland, New Zealand and was a diplomat and legal adviser at the New Zealand Ministry of Foreign Affairs and Trade. She has a special interest in the nexus between trade, human rights and the environment and she has published several articles on the WTO Agreement on Sanitary and Phyto-Sanitary Measures. She is currently working on a monograph to be published by Cambridge University Press on Science, Proof and Precaution in International Courts and Tribunals.  The book focusses on expert evidence, burden of proof and finality of adjudication in international disputes involving science.   

My thanks to Dapo Akande for the invitation to submit this comment and to the respective authors for their papers. Cooney and Lang adopt a broad ambition: a development in the multilateral trade system and its institutional mechanisms towards “adaptive governance”.  García-Salmones sets out to prompt further exploration of the major implications of such a reform in “governance”, including the development dimension.   Reading the authors’ contributions, it occurs to me that together these contributions raise fundamental questions about the respective roles of law and of “governance” in international law – a distinction hinted at by García-Salmones but not taken up. What we require of international law as law, particularly when it comes to the application of the law through binding adjudicatory processes, is not always compatible with what we might ideally require from a system of international “governance”.

 The key point that needs to be added into the equation, I think, is to underline the usefulness of maintaining what could be called the “hard edge” of international law.  At the hard edge, law often requires the availability of authoritative decision-making at fixed points in time – something the WTO dispute settlement system does very well. In dispute settlement by adjudication, the law is interpreted and applied in order to give concrete effect to an agreed balance of interests.  Because of its very nature this aspect of law will tend to freeze the situation at hand.  Adjudicatory processes will generally respond much less flexibly to the dynamics of ongoing scientific research in fields of considerable uncertainty than may be possible within other processes of international “governance”. Cooney and Lang themselves refer to the “one-off nature of WTO dispute settlement.”  (As a practical matter, the result is a technically huge challenge for WTO panelists and Appellate Body members.) 

 Certainly, WTO dispute settlement in SPS cases should be carried out with a high level of awareness of the extent of scientific uncertainty in the field in question.  Increasingly, this awareness is manifest. The appellate structure of WTO dispute settlement has been valuable in gradually advancing the interpretation of the Agreement along appropriate lines. And indeed we should continue to strive to improve the substantive international law on an ongoing basis so that the rules themselves will require, prompt and accommodate an allowance for uncertainty- as Cooney and Lang seek to do with their suggestions on the SPS Agreement’s future interpretation.  Success in this will produce better decisions that balance competing interests as well as possible. 

 Yet we must remain aware of what it is we seek from international law as law. This is not always compatible with what we might ideally require from the overall system of international “governance”, where there is greater scope for adaptive management and learning.  (more…)

Andrew Lang and Rosie Cooney respond to Mónica García-Salmones’ comments on their article “Taking Uncertainty Seriously: Adaptive Governance and International Trade” published in (2007) 18 EJIL 523. A version of this response, with footnotes and full references can be found in (2009) 20 EJIL (see here)

It is always a pleasure and an honour to have a colleague engage with one’s work in detail. We are grateful, therefore, to Mónica García-Salmones for her response to our article, and are pleased to have this opportunity to clarify some aspects of our thinking and our approach that may not have been explicit enough in the original piece. Given the limitations of space available, we have decided to put to one side the many points of detail on which we may differ from García-Salmones, and provide simply the broad outlines of a response to the three primary lines of criticism which we understand García-Salmones to be offering. 

1.         Learning and the Power of Experts

 García-Salmones’ primary concern with adaptive governance is that, in her view, it enhances and valorizes the role of experts in international governance, and ‘contributes to the problem of depoliticization in the global sphere’ (at 168). Our emphasis on knowledge production and continuous learning is, from this perspective, equated with a turn to ‘managerial governance’ (at 177), in which political decision-making is understood as problem-solving, and policy choices are justified as products of enlightened rationality.

In raising these concerns, García-Salmones locates herself within a well-established and vitally important literature that highlights and critiques the reality of the growing ‘technicalization’ of global governance. But by directing this criticism at us, it is clear that she fundamentally misunderstands our argument. Indeed, we start with precisely the same aversion to technocratic politics as she does – and with a profound scepticism of hubristic claims to truth-telling which too often are advanced in the name of apolitical expertise. But since we distinguish ourselves from technocratic governance along a different axis from García-Salmones, the ways in which our ideas differ from the kind of managerialism that she critiques may not have been clear.

Our starting point is that structures of knowledge are inseparable from the practice of international politics. The distribution and deployment of political power are always mediated by dominant ways of knowing the world, by particular habits of interpretation, by the background assumptions of governing elites, and so on. The relevant distinction is therefore not between forms of global governance based on knowledge and those that are more ‘politicized’ (a term which is invariably vaguely specified). All involve ‘knowledge’, but all knowledges are necessarily constructed and deployed within a particular social and political context.

Rather, the choice for us is between different ways of ‘doing knowledge’. Adaptive governance is not intended to be a manifesto for increasing the role of experts in international governance. To the contrary, it involves an initial attempt to imagine new ways of doing knowledge in politics and law, predicated on a view of knowledge as multiple, contested, and provisional rather than unitary and finally provable, on an abandonment of the idea that there are usually ‘right’ or ‘rational’ solutions to objectively identifiable problems in any simple sense, on a commitment to the destabilization and remaking of knowledge rather than its uncritical dissemination, and above all on an emphatic rejection of the cult of expertise. Like García-Salmones herself, we therefore explicitly make the case for the inclusion of ‘local knowledge’ (at 186) with practices of global governance. We explicitly argue for greater public participation in apparatuses of knowledge production. And our focus on continuous learning is not about an ongoing search for ‘more true’ (at 185) or more ‘enlightened’ (at 169) decisions, but rather about the ongoing destabilization of settled assumptions, taken-for-granted definitions of problems, and the complacent faith of experts and policy-makers in their own solutions. Continuous learning, in other words, is about cognitive openness. (more…)

Mónica García-Salmones is an LLD student and Research Fellow at the Erik Castrén Institute for International Law and Human Rights at the University of Helsinki, Finland. The post below introduces and summarises her recent article in the EJIL, the full text of which is available at the EJIL website (see here)

The use of experts’ power in global networks is often concealed by describing it in the register of scientific truths. My intention in this post is to illustrate this phenomenon by reference to the recent article in the EJIL by Cooney and Lang, ‘Taking Uncertainty Seriously: Adaptive Governance and International Law’. The article provides a good introduction to that issue, to the extent that it offers a set of strong theoretical assumptions framing global governance as a field of knowledge to be conquered. Thus, Cooney and Lang advocate a leading role to scientific experts in global political decisions.

 As the authors state in the introduction, the aim of their project is to address the pervasive uncertainty that confronts decision-makers in international institutions. Focusing primarily on the uncertainty of environmental management, Cooney and Lang put forward the case of the invasive alien species (IAS). The international actor chosen is, predictably, the WTO in its capacity of distinguishing – as well as overseeing and reviewing – legitimate from illegitimate trade-restrictive environmental measures through the mechanism of the Sanitary and Phytosanitary Measures Agreement (SPS Agreement). This mechanism is ‘based (in part) on an appeal to scientific expertise as an arbiter of regulatory rationality’.

 The core question posed by the authors in the article concerns the implications for the WTO in respect of this task when it faces what they consider to be an unavoidable scientific uncertainty. In this regard a proposal is made for a new policy aimed at the regulators in global governance: adaptive management or adaptive governance. The approach used is borrowed in part from the literature of environmental management of the 1970s, combined with alternatives drawn from social sciences. Policymaking in the context of adaptive governance is considered a repetitive process, ‘continuous learning’, because scientific knowledge is seen as provisional and subject to review in the light of new information, and thus not definitive or final. The core message of the article is worth quoting for our purposes:

 ’For us… the point of proceduralization is not primarily to ensure that the WTO interferes less substantively with democratic decisions at the national level, but rather to use the international trade regime in a more positive way to facilitate, and provide an impetus for the development of appropriate governance frameworks at the national level.’ [at 544]

 Cooney and Lang raise two highly provocative points. Firstly, the account they give of WTO law goes beyond a purely legitimacy-based structure focused on effectiveness. Instead, they propose to endow it with a functional aspect: the question is posed in terms of cognitive achievements for regulators in the member states through the influence of WTO law and WTO managerial tasks. Secondly, they describe national and international regulators as being naturally intertwined. Now, to me both these arguments are interesting and important in facilitating an approach, from a legal perspective, to the meaning of the elusive notion of global governance and – which some consider its leading characters – the regulators.

 Furthermore, critical understanding of these two claims made by the adaptive governance project will assist in evaluating global governance. I shall analyze whether the lack of central government that characterises global governance permits the justification of legal-political decisions as knowledgeable truths in the style of an enlightened ideology – and whether the scientific justification provides a means of avoiding the type of political accountability found in the public national sphere. In order to understand the origins of cognitive theories employed by adaptive governance and to the notion of regulators I will, in the same manner as Cooney and Lang, use the concrete example of the WTO, giving a brief description of its emergence in the international public sphere. (more…)

In his post below, Marko takes the view that the Obama administration position on the authority to detain in Guantanamo in internally contradictory and based on a misinterpretation of international humanitarian law. While I agree with Marko that some of the analysis offered by the Obama administration in its recent brief  is confused and confusing, I am of the view that the position taken by the current administration regarding the authority to detain is progressive.

As Marko and Deobrah Pearlstein at Opinio Juris have pointed out the substantive standard for detention adopted by the Obama Administration differs little from the standard adopted by the Bush administration. This notwithstanding, there are at least two points in the Obama Administration’s brief where the tone and use of international law is  different from and better than the position taken by the previous administration. I leave aside the fact that this administration claims its authority to detain from the 2001 Authorisation for the Use of Military Force statute (AUMF) rather than from Presidential power.

The dropping of the term “enemy combatant”

The first things the Obama administration should be lauded for is that no longer uses the term enemy combatant with respect to the decision to detain. The Bush administration had tied the authority to detain persons at Guantanamo to the detainee  being found to be an “enemy combatant” (see the July 2004 order establishing the Combatant Status Review Tribunal). However, IHL has never predicated detention power on whether the person is a combatant. IHL envisages and authorises the detention of enemy combatants (see the 1949 Geneva Convention (GC) III for POWs and 1949 GC IV authorising detention of civilians who are saboteurs or are otherwise unprivileged belligerents). However, IHL also envisages and authorises detention of a broader group of individuals than those who can be regarded as combatants. The Fourth Geneva Convention (GC IV) on the Protection of Civilians  is quite clear on this as it allows belligerents to detain (intern) alien nationals “if the Security of the Detaining Power makes it absolutely necessary” (Art. 42) or for “imperative reasons of security” (Art. 78). The first provision relates to protected persons with the territory of the party to an armed conflict and the latter relates to situations of occupation.  At this pointof the argument, it matters little whether these provisions apply on their own terms to Guantanamo. They are used here to support the claim that under IHL detention is not tied to enemy combatantcy. But if IHL allows detention of a broader group than enemy combatantcy, why is it a good thing that Obama administration no longer ties detention to whether a person is an enemy combatant?

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Speedy Despatch of Business at the Court?

In addition to new judges taking up office, and the election of the President and the Vice President (which Marko points out in his post), the Court has also elected a Chamber of Summary Procedure (see here). This is something that the Statute of the Court (Art. 29) requires the Court to do annually, “with a view to the speedy despatch of business.” Despite the Court setting up this Chamber dutifully, the Chamber of Summary Procedure of the ICJ has has never been asked to decide a case. The equivalent Chamber of the Permanent Court of International Justice was resorted to once in the case concerning the Interpretation of the Treaty of Neiully (Bulgaria/Greece) 1924 [or should we say it has been used twice since Greece's request for an interpretation of that judgment was dealt with by the Chamber of Summary Procedure in 1925]. The Court has been accused in the past of moving at a snails pace and certain cases seem to bear this out. It took the court nearly 14 years (1993-2007) to get from the filing of Application to a Merits judgment in the Bosnian Genocide Convention Case, 11 years in the Oil Platforms case, and 10 years in Qatar v. Bahrain. Could use of the Chamber of Summary Procedure be a way of solving this problem? Perhaps more importantly, is there really a problem of slow justice at the ICJ?

Despite the fact that some cases have taken very lengthy periods to reach a conclusion in the ICJ, there are good reasons to think parties do not consider there to be a significant problem with the speed of proceedings. In fact, it is probably wrong to assume that parties to ICJ cases always or even normally wish to have those cases decided quickly. (more…)

Martin Trybus is Professor of European Law and Policy and Director of the Institute of European Law at the Birmingham Law School of the University of Birmingham, UK. He is the author of European Defence Procurement Law and European Union Law and Defence Integration and co-edited European Security Law with Nigel White

Chesterman (see here) deals with an interesting aspect of federal US American public procurement law. While touching on certain foreign relations dimensions of the topic, the thought-provoking article discusses domestic rather than international law. However, since the federal intelligence budget of the United States is most probably the largest in the world and privatisation in this area is unlikely to be more advanced in any other country, large parts of his analysis are relevant and important for the rest of the world. Other countries toying with the idea of privatisation of their intelligence services can learn from Washington’s experience accumulated during the last eight years.

The primary objective of public procurement is for the government to acquire whatever goods, works, and services it needs to operate from the private sector. This primary objective is certainly a legitimate motivation for the privatisation of some intelligence services when government agencies are lacking the personnel, know-how, and equipment to provide them. Nevertheless, as most concisely explained by Steve Schooner in “Desiderata: Objectives for a System of Government Contract Law”, (2002) 11 Public Procurement Law Review 99-102, there are a number of other important objectives to be served by public procurement. In any national context the procurement of defence and intelligence supplies and services has to operate within a triangle of three objectives: (1) national security, (2) value for money, and (3) democracy and the rule of law. National security is the objective of the defence and intelligence efforts of any country. Procurement policy and law must ensure that this basic objective is not compromised. The notion of ‘value for money’ requires the procurement process to ensure that the government purchases goods and services under the economically most advantageous terms, most notably at the lowest possible prices without compromising quality and other economic considerations. There is a connection between national security and value for money since the earlier is affected when the security budget is depleted through inefficient procurement and necessary services cannot be provided as a result. Democracy and the rule of law form the basis of a country such as the United States. Not even the national security objective can be allowed to compromise these most basic principles on which any democracy is built. A balance needs to be struck between the three corners of this triangle.

The most striking point highlighted in Chesterman’s article is that the privatisation of intelligence services in the United Sates appears to compromise all three objectives. (more…)