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The Politics of International Law – Twenty Years Later: A Reply

Published on May 19, 2009        Author: 

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…

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