EJIL: Talk!

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. Read the rest of this entry…

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. Read the rest of this entry…

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. Read the rest of this entry…

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).

Read the rest of this entry…