In From Apology to Utopia (1989), the Finnish jurist and former diplomat Martti Koskenniemi presents his thesis on international law’s fundamental indeterminacy. This would come to epitomize a critical moment in international law. Rather than repeat the classical legal view concerning “relative indeterminacy” (where, in some difficult but marginal cases there might not be one correct understanding, “rule-making authority must exercise a discretion” [Hart: 128]), Koskenniemi claims that indeterminacy cannot be reduced to an external distortion. It does not refer to difficulties in the application of international law arising from the semantic ambiguities of legal rules or to the ambivalences of legal argument or the inconsistencies in conceivable legal interpretations. In the end, indeterminacy, a variously applied trope of Critical Legal Studies,1Koskenniemi’s thoughts on indeterminacy and the politics of international law were influenced by the work of American scholars associated with the Critical Legal Studies (CLS) movement in the 1970s and 1980s, as well as by the “New Stream” of international law scholarship in the second half of the 1980s. Works by Roberto Unger (1975), David Kennedy (1980; 1987) and Duncan Kennedy (1976; 1979) were especially important for Koskenniemi’s understanding of the flaws of liberal legal rules that were considered inconsistent and contradictory not in their substantive content per se, but rather as a consequences of the deep structure (i.e. the language or the generative grammar) of the law. CLS also inspired his argument that it is not possible to separate law from politics. is less about “how decisions are made”, and more about “how they are justified in argument” (Koskenniemi 2005: 589).
For Koskenniemi, even though legal problems are grounded in the idea that they can and should produce a legal solution (Koskenniemi 2005: 60), the structural properties of the international legal system, its language, as well as those interpretative and argumentative procedures accompanying it, cannot in and of themselves determine the outcome of a legal case. The main reason for that can be located in the very identity of international law.
Established vis-à-vis politics and especially international politics, international law was influenced by a liberal theory of politics that has shaped its structure of arguments based on two assumptions. On the one hand, “legal standards emerge from legal subjects” and there is no higher normative order. On the other hand, “once created, social order will become binding” on these subjects and they will not be able to “invoke their subjective opinions to escape its constraining force” (Koskenniemi 2005: 21). As a result, international law should be objective and impartial and provide “justifiable solutions to normative problems” (Koskenniemi 2005: 24).
Hence, claims Koskenniemi, the logic of law “is to lead society away from politics” (Koskenniemi 2005: 599). However, to support those assumptions, international law has been established on opposite, mutually exclusive, and contradictory premises that pervade the patterns of justification but are impossible to reconcile.
Firstly, a descending argument assumes that international law is “external to State behavior, will or interest”, and that its “objectivity lies in its normativity” and thus in “its capacity to constraint”. Secondly, an ascending argument supposes that international law reflects the “subjectivity of value” and that its impartiality lies in its “acceptance” by the State as a “sovereign choice” that cannot be overruled (Koskenniemi 2005: 63-64). This conundrum forces the international legal system to maintain itself “in constant movement from emphasizing concreteness to emphasizing normativity and vice-versa without being able to establish itself permanently in either position” (Koskenniemi 2005: 65).
International law is consequently “overlegitimizing” and always open to decriers of apology as it can readily be “invoked to justify any behaviour”, as well as “underlegitimizing” and always exposed to critics of utopia since it is somehow “incapable of providing a convincing argument of the legitimacy of any practices” (Koskenniemi 2005: 67).
To escape being utopian, the only solution is to lay down how international law corresponds to State factual practice, and why it is consequently binding for the State. To escape being apologist, the only solution is to demonstrate that international law binds the State notwithstanding its own will, interests or the changing circumstances within which a State might be. In the end, contends Koskenniemi, “[n]either concreteness nor normativity can be consistently preferred” (Koskenniemi 2005: 66).
Contesting the idea often embraced by the legal minds that international law is a complete system of rules and principles essentially closed onto itself and at the same time both normative and concrete, Koskenniemi argues that radical indeterminacy points toward the porousness of a system of legal standards never wholly insulated from social, economic, or political processes. That porousness bears witness to the malleability of the international legal rule since even though “it is possible to defend any course of action […] by professionally impeccable legal arguments” (Koskenniemi 2005: 591), ultimately that same malleability makes international law “useless as a means for justifying or criticizing international behavior” (Koskenniemi 2005: 67).
Yet, asserts Koskenniemi, international law’s indeterminacy “is an absolutely central aspect of [its] acceptability” (Koskenniemi 2005: 591, emphasis added). In the absence of these contradictory premises and of the various binary dichotomies they generated — justice / will; law / fact; natural law / positivism; community / society; rules / processes; diplomacy / Realpolitik; utopia / apology —, there would “be no international law in the first place” (Koskenniemi 2006: 1104). These premises, claims Koskenniemi, are ad hoc and endure only because they are such (Koskenniemi 2005: 65). Hence, his conclusion that “there is no space in international law that would be free from decisionism, no aspect of the legal craft that would not involve a choice — that would not be, in this sense, a politics of international law” (Koskenniemi 2005: 596).
International law appears to be radically indeterminate since it is nothing more, but nothing less either, than an operation — a practice of decision-making — that helps shape “a moral-political project” (Koskenniemi 2007b: 21). Because of its radical indeterminacy, these premises on which international law rests are never fully able to escape politics or to differentiate law from politics (Koskenniemi 2005: 387). For Koskenniemi, law operates “as a (vocabulary for) politics” and their relationship is “one of identity” (Koskenniemi 2011: v).
However, Koskenniemi maintains that indeterminacy should not force on us the conclusion that the content of international law is nullified, and as a result can only serve those powerful enough to use it as a tool to pursue their own interests or as an administrative device in the hand of international agents to cope with various problems conceived as technical.
Although indeterminacy points toward the logical fact that “all positions remain open and contrasting arguments may be reproduced at will”, the empirical fact remains that nothing is so random and “the system still de facto prefers some outcomes or distributive choices to other outcomes or choices” (Koskenniemi 2005: 606–7; Koskenniemi 2009: 9). Koskenniemi thus insists on the existence of “embedded preferences” producing “structural biases” in institutional practices that expresses something like “a professional consensus or a mainstream answer” to any specific problem (Koskenniemi 2005: 607).
Those biases limit the range of possible outcomes and operate to stabilize the international order. In other words, they illustrate the “politics of international law in action”, or the way indeterminacy is used as a methodological device to privilege some choices, usually “conservative or status quo oriented choices” (Koskenniemi 2005: 610). Moreover, at issue today are the biases and “the contingent nature of the choices made” that biases contribute to hiding (Koskenniemi 2009: 12). Biases are indeed reinforced through the fragmentation produced by the establishment of various regimes of knowledge and expertise and the “exception” they generate to “institutionalise the new priorities within such field” (Koskenniemi 2007a: 5; see also Koskenniemi and Leino 2002). In various studies on the law of force, human rights law, criminal law, trade law, law of the sea, etc. Koskenniemi has demonstrated how this politics of international law’s biases henceforth operate in the shadow of indeterminacy to produce institutional hegemony (Koskenniemi 1995; 1999; 2001; 2002; 2010; Koskenniemi and Lehto 1996).
Jean-François Thibault is professor of political science at the University of Moncton (Canada)
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