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. This is reflected in Harold Lasswell and Myres McDougal’s admonition that “From any relatively specific statements of social goal (necessarily described in a statement of low-level abstraction) can be elaborated an infinite series of normative propositions of ever increasing generality; conversely, normative statements of high-level abstraction can be manipulated to support any specific social goal” (Lasswell HD and McDougal MS, “Legal education and public policy: professional training in the public interest”, 52 Yale Law Journal 203 (1943) 213). A similar notion informs Julius Stone’s doctrine of categories of illusory reference in the interpretation of precedent.
While Lasswell and McDougal could determine appropriate policy choices by reference to the hierarchy of value expressed in their aim of the “complete achievement of the democratic values that constitute the professed ends of American polity” (Lasswell and McDougal 1943 206), Professor Koskenniemi appears not to harbour such a programmatic intent. Although he expresses the hope that the self-reflective practice of law “would transform the preferences of international institutions in support of ‘progressive’ causes”, he casts little light on what these might be, while recognising that some may pursue less progressive or conservative agendas. The outcome of the contest between differing political visions determines the structural biases of particular specialisms or, indeed, of international law as a whole.
One reservation I have to this aspect of Professor Koskenniemi’s argument, and I hope that this is not unfair, is that it presents all legal practice as the quest for normative capture. Perhaps paradoxically, it fails to recognise that different actors may use the same legal structure to pursue diverse ends, without disputing the nature or implications of that structure. For instance, a liberal could easily support the legality of the free expression of views s/he finds abhorrent, and use the same mechanism, the right to free speech, to criticise those views. The extremist might be exercising the right to free speech cynically, and the liberal in a committed fashion because s/he wishes to affirm and advance the values —or, if you wish, structural bias—that the right to free speech embodies. Nevertheless, each may use the same legal mechanism for different purposes without attempting to alter its structural bias.
One structural bias that is pervasive to international law is that, ultimately, it privileges the interests of States, and that States often wish to keep its precepts deliberately vague in order to maintain their freedom of action. This should not be surprising as States may even wish to do so in their domestic legislation. For example, on 5 October 2005 in the US Senate, there was an attempt to amend the Department of Defense Appropriations Bill to prohibit the cruel, inhumane or degrading treatment of those in the custody or under the control of the US government. The New York Times reported that President Bush would veto the Appropriations Bill if it were adopted with this amendment attached on the ground that “it would bind the president’s hands in wartime” (see here). Speaking in favour of this amendment in the Senate, Senator John McCain said:
I can understand why some administration lawyers might want ambiguity, so that every hypothetical option is theoretically open, even those the President has said he does not want to exercise. But war does not occur in theory, and our troops are not served by ambiguity. They are crying out for clarity. The Congress cannot shrink from this duty, we cannot hide our heads, pulling bills from the floor and avoiding votes. We owe it to our soldiers, during this time of war, to take a stand. (Congressional Record, Senate, 5 October 2005, S11062)
In contrast to this, there are some who would argue that the quest for determinacy sets the bar of legality at a minimum and caps behaviour, and this precludes better, more enlightened, more humanitarian behaviour. For instance, David Kennedy has opined:
humanitarian rules may well criticize too little—relying for their implementation on the agreement of the military and political establishments which collectively promulgate them. Waging war within the rules may so little constrain the use of force that adherence to humanitarian rules will do more to legitimate than contain force. It is easy to mistake warfare which follows the rules for humanitarian warfare—rule following can become a substitute for careful humanitarian assessment. (Kennedy D, The dark sides of virtue: reassessing international humanitarianism (Princeton UP: Princeton: 2004), 296-297, see 235-323 generally)
The notion that law legitimises behaviour can give rise to ethical dilemmas in any attempt to use law to constrain official action (see, for instance, Sfard M, The human rights lawyer’s existential dilemma, 38 Israel LR 154 (2005)), but Kennedy’s counsel in favour of humanitarian assessment itself creates a dilemma. This is obviously a call for some form of consequentialist appraisal. Leaving to one side Professor Koskenniemi’s injunction that one must first decide whose humanitarianism is in play, and arguments such as those advanced by John Finnis that consequentialism is an inherently irrational enterprise (see Finnis JM, Natural law and natural rights (Clarendon Press: Oxford: 1980) 111-118), how may one account for the unintended consequences of intended action? Further, even assuming that one has the time and resources to engage in deliberation before legal action, law is only one strategy to deal with social issues, and its intended practical impact may be derailed by extra-legal factors and the structural biases that they encapsulate. No-one is omniscient, which for law could mean that specialism is inevitable, but it also means that foresight is limited as it is impossible to map and compare the permutations of all possible courses of action .
It may also be that recourse to the law, with all its imperfections, is the only action available. Consider “lawfare”. The term was coined by a US military judge, Charles Dunlap, initially to describe the way that law has been deployed as a weapon of war, for instance, by those seeking to gain a moral or propaganda advantage by claiming that war crimes have been committed by a stronger adversary (see Dunlap C, “Lawfare amid Warfare“, Washington Times, 3 August 2007). The notion has since been extended, and can be summarised as the employment of the power of legal accountability generally by a non-State actor, such as a NGO, in opposition to official State action (see, eg, Herzberg A, NGO “lawfare”: exploitation of courts in the Arab-Israeli conflict (NGO Monitor: Jerusalem: 2008). Lawfare frequently employs international law against the State, whether in domestic or international fora—for example, in courts or before human rights treaty bodies. It could be described as the use of soft normative power against the more naked coercion of the State. As such, it may be seen as a strategy of resistance to the political desires of States, which seeks to disrupt the principal structural bias of international law which lies in its State-centric nature.
The practice of lawfare is, of course, not without normative danger. In seeking to attack a practice, it may end up legitimating it in whole or in part. For example, the attempt by human rights NGOs to employ international law to have Israel’s policy of targeted killings declared unlawful extra-judicial killings resulted in an equivocal judgment from Israel’s High Court which ruled that targeted killings were at times lawful, depending on the circumstances (see Public Committee against Torture in Israel v Government of Israel, HCJ 769/02, 13 December 2006).
Apart from warning of the dangers of answered prayers, St Teresa also prescribed flagellation for the nuns of her reformed Carmelite order in order that they might mortify their flesh: a self-inflicted sacrifice to achieve an intangible goal. Professor Koskenniemi counsels a less painful course for international lawyers to guard against hubris. We must be conscious of what we are doing and why we are doing it and, above all, take responsibility not for the sins of the flesh, but for the sins of our intellect. We cannot blame everything on the “system” when we, in fact, construct it.