The Politics of International Law – Twenty Years Later

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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. While the process of globalization may have shifted the locus of political engagement from ‘sovereign states’ to ‘functional regimes’ it did not change the dynamics of such engagement. The analogy between “sovereign states” and “functional regimes” is not only possible, but useful. Both concepts are ideologically characterized by self-absorption of their own principles and the urge of proliferation of those principles against every other contesting party (be that a state or a regime). Careful selection of the strategic choices as to what idioms of which regime should prevail in a specific situation in which there is no self-evident choice (as is the case in most situations) is a window of opportunity for meaningful re-definition and innovation within the vocabularies themselves. While insisting on structural bias and vocabulary as a weapon of activism, strategic choice is attached to administrative management. Activists who insist on their native vocabulary are useful watchdogs, yet own their persistence could lead them to marginalization which makes support for such an approach no more commendable then for that of managerialism. Only strategic sensitivity and the pursuit of critical distance can be recommended.

Since my 1989 article there is now a growing body of critical writing that uses the kinds of techniques that it displayed and embodies the same kind of transformative urge, but is perhaps clearer in what it rejects and what it wants to achieve in the world. New writing has sought links with new thinking in comparative law, private international law or private law tout court, law and development, as well as legal history. It has become common to adopt a feminist, or a third world, or post-colonial, or even a Marxian vocabulary, and thus to foreground the political commitments of the analysis. It is not at all alien to see legal writings peppered by anthropological, sociological, or references and insights carried over from international relations, political theory, or political economy

But “interdisciplinarity” often comes with a dubious politics. That is represented in particular by “managerialism”, the approach that looks to international law and institutions from the perspective of strategic actors seeking to realise their preferences.  The preference of managerialists lies with the fact of compliance and effectiveness rather than normative analysis of what there is to comply with. Normative analysis is degraded into an empirically and strategically informed study of ‘legitimacy.’ By taking the preferences of dominant institutions for granted (and being obsessed of their “effective enforcement”), managerialism becomes a problem in its own right. Not only normatively objectionable, however, managerialism is also insensitive to the complexity of the world’s causalities. Which is why The managerialist’s “functional interests” are just as indeterminate as the legal formalist’s “rules and principles” and become ultimately indistinguishable from the latter.

There is thus a parallel between two seemingly opposite approaches, constitutionalism and managerialism, both equally obsessed with the quest for “a right answer” accessible by “technical reasoning”, one through interpretation (of law), and the other by “rational choice” (of preferences). The question which remains unanswered, however, is what kind of (and whose) law and what type of (and whose) preferences? As the “antidote” to these approaches, I propose historical narratives which have the potential to liberate the political imagination and to freely examine the impact of alternative choices in diverse situations.

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Noe Cornago says

June 17, 2009

Dear Prof. Koskenniemi,
You say at the beginning of your comments that in spite of your new interest in the structural biases of international institutions you remain as committed as ever to the indeterminacy of international law. But, respectfully, considering your new concerns perhaps you shall also reconsider your own understanding of indeterminacy. After all, the undecidibility of legal arguments that you explained so convincingly some years ago, can solely be resolved factually, that means, through real political practice submitted to real structural constrains. The historical narratives you mention, either liberating or oppressing, are in sum, and ultimately, a form of discursive compromise with reality.