The Politics of International lawyers: Whose Legacy Is at Stake? Reflections on Martti Koskenniemi’s series on ‘The Politics of International Law’

by Michele Tedeschini | 15 Jul 2019

Martti Koskenniemi. Photo: © Pekka Elomaa. Reproduced with permission.

The latest issue of the European Journal of International Law opens with the third instalment of Martti Koskenniemi’s The Politics of International Law series. This post offers some reflections on Koskenniemi’s article, although it is not intended as a full response to it.

First, a disclaimer in the style of Liliana Obregón¹ and many others before her is in order. I am a strong supporter of the structural understanding of international law that Koskenniemi has theorised in his work. Unsurprisingly, my approach to the field underwent significant and irreversible changes after reading From Apology to Utopia (FATU). The reason for this is, I believe, that FATU represents the perfect gateway to critical approaches to international law – in a loose and non-technical sense – for those equipped with a somewhat classical training but substantially unaware of alternative attitudes towards the field. Like the disappointed formalist who takes seriously the functioning of international legal discourse, Koskenniemi’s analysis is incredibly powerful for those who approach it while still believing in that discourse. FATU’s exposure of international law’s radical indeterminacy, coupled with the acknowledgment of recognisable patterns of disciplinary predictability, inevitably points to the “structural bias” that stabilises much international legal practice. Not only is the book capable of converting positivist scholars to a new professional attitude: it also requires engagement with other forms of critical legal analysis, prompting the reader to broaden their horizons by way of embracing new forms of investigation. Once the trick is exposed, it is impossible to see the magician with the same eyes.

In much of his copious scholarship, however, Koskenniemi steers clear of expressing opinions on international law’s operating biases. Ever since FATU, his focus has remained firmly on the description of structure, on the exposure of the underlying political, a political that the former Finnish diplomat has never seemed keen to engage directly. The turn to history marked no real exception, as Anne Orford has pointed out:² works following The Gentle Civilizer of Nations are those of a punctual historian worried to avoid anachronism and eager to maintain an external standpoint, but fundamentally unconcerned with expressing his own views in the way of, say, an Eric Hobsbawm. It is in this lack of political engagement, in my opinion, that lies an important limit of Koskenniemi’s scholarship. I will explain this assertion by briefly commenting on the final section of Koskenniemi’s recent EJIL contribution.

Before doing so, however, let me offer a remark on the article’s incipit. For the leading section’s heading – ‘Politics of International Law’: One Last Time – evokes a strong sense of nostalgia for an era that is about to conclude. Fans of the Finnish scholar cannot but hope that this is in fact not a last time. It would be great if Koskenniemi could give it another shot in 2030, should international law survive until then (that is, should nations with people still justify its existence). Surely he knows that it is too early for bidding a credible farewell, like an artist who announces her retirement to pave the way for a sensational comeback. Several rock stars have done so. And I prefer to consider Koskenniemi an academic rock star, rather than an aging wine as per Joseph Weiler’s melancholic metaphor.

Heading aside, the article’s introduction retraces Koskenniemi’s scholarly trajectory after the first instalment of his politics-of-international-law franchise, which was published in 1990. So, before imagining Hugo Grotius and his rule of law, the reader is asked to imagine Koskenniemi at work through the end of history, the return of history,³ and the turn to history in international legal scholarship. The shift to a 17^th-century jurist – however influential – is not really intuitive, but Koskenniemi is authoritative enough to impose it at will. ‘In this article, I want to return to the theme of the ‘rule of law’ by picking up a historical figure’: there we go, Hugo Grotius.

I will not comment on the historical analysis that forms the bulk of the paper, for I do not possess the expertise (or the authority) to do so. What I would like to do, instead, is share my impressions of the article’s concluding section – Grotian ‘Politics of the Rule of Law’. Only here did I start wondering who Koskenniemi was really talking about: Hugo Grotius, or himself? Could it be that he was referring to both, and consciously so? Four passages caused these questions to emerge.

The first (‘Grotius was attacked…’, p. 50) depicts the Dutch jurist as an eclectic thinker constantly mediating between competing dichotomies, such as natural law and positivism. As a result, ‘it is pointless to ask whether he ‘really’ fell on one or the other side’ of ascending and descending arguments. ‘The power of his texts lies in the way they resist closure in such terms’, allowing ‘for their use for the most varied purposes.’ It sounds very much like a description of FATU’s structural analysis crowned by a judgment on its author. Who never really positioned himself against the polarities he exposed: but that is beyond the point, Koskenniemi seems to be telling us.

The second passage (‘So there is both…’, p. 50) clarifies that, actually, there is a kind of politics in the work of Grotius – one that ‘points to an autonomous ‘reason’ that … enables all humans to grasp the rules [of] civil communities’, a ‘moral science’ requiring ‘governments to exercise prudence and equitable discretion’. Could we label that politics ‘a culture of formalism’, maybe? That same culture that Koskenniemi introduces at the outset of The Gentle Civilizer, ‘an ethical position [which] aims to provide political decision-makers with … ethical guidance’ – to say it with Jan Klabbers?⁴

‘But Grotian formalism also had limitations’, Koskenniemi goes on to notice in a third passage (p. 50). For one thing, ‘it did not have much to say about the daily business of ruling.’ In the same way as FATU’s analysis, by Koskenniemi’s own admission (p.1 of The Gentle Civilizer), was ‘rather static’, its argument that all international legal practice is politics of law falling short of explaining what that politics actually consists of. To be sure, these are slightly different flaws: Grotius ignored the daily business of ruling, Koskenniemi disregarded the daily business of international lawyering. What both jurists have in common is that they identified a political dimension behind law which, however, they left unaddressed. Just Koskenniemi, unlike Grotius, rectified this shortcoming in his subsequent endeavours.

Here is where the author distances himself from Grotius, while – in my reading – still pondering over his own work. The fourth passage (‘Second, however much…’, p. 51) completes the distancing move. The biggest problem with Grotius lies in his ‘absolutist doctrine of rights that paid no attention to [concrete] circumstances’, Koskenniemi argues. In his view, that theory is an unwelcome byproduct of Grotian thinking, yet one that grew to the point of shaking hands with unending austerity against the underclass in the 1990s. Finally, a glimpse of Koskenniemi’s political credos, brought to the surface by what Philip Alston has called his ‘deep-seated skepticism about rights’.⁵

In conclusion: whose legacy is Koskenniemi really concerned about, Grotius’s or his own? To be sure, I am not claiming that the article under consideration misreads Grotius so that Koskenniemi can actually talk about himself. Rather, my suspicion is that after so many scholars have read his scholarship, Koskenniemi – fully aware of his standing – is finally reading himself through the work of one of the alleged fathers of international law. I would like to advance two hypotheses on the reasons behind this manoeuvre. The first is that Koskenniemi might be worried about having said too much without ever taking sides (as Ruti Teitel and Rob Howse have noted),⁶ in the course of the last thirty years. And if he stood for nothing, what did he stand for?, might future generations of international scholars wonder. The charge of nihilism is always there, looming above the crit’s head. Secondly, and perhaps more importantly, we have to remember that FATU’s structural analysis of international legal discourse is valid only so long as the discipline remains rooted in a liberal theory of politics. If liberalism ‘is slowly but surely collapsing’, then, what will be the use of Koskenniemi’s scholarship in a post-liberal world? Is FATU going to become obsolete, a product of its own time devoid of standing significance? If that was the case, David Kennedy’s label ‘the last treatise’ would resound as a scholarly reinstatement of Francis Fukuyama’s end-of-history paradigm, a captivating but hasty proclaim. To avert that occurrence, a call for contextualisation is in order. A call like the one that Koskenniemi issues with respect to Grotius and, at least indirectly, to himself too – or so it seems to me. Bottom line: in a (perhaps distant) future, scholars might have to think about Koskenniemi the way Koskenniemi thinks about Grotius (p. 24), ‘as an ambitious man seeking to persuade an audience’.

Michele Tedeschini is a PhD candidate at SOAS, University of London

1
‘I must start with a disclaimer: I am a Martti Koskenniemi fan’: Liliana Obregón, ‘Martti Koskenniemi’s Critique of Eurocentrismin International Law’ in Wouter Werner, Marieke de Hoon and Alexis Galán (eds), The Law of International Lawyers: Reading Martti Koskenniemi (Cambridge University Press 2017) 360.
2
Anne Orford, ‘International Law and the Limits of History’ in Wouter Werner, Marieke de Hoon and Alexis Galan (eds), The Law of International Lawyers (Cambridge University Press 2017).
3
Costas Douzinas and Slavoj Žižek, ‘Introduction: The Idea of Communism’ in Costas Douzinas and Slavoj Žižek (eds), The Idea of Communism (Verso 2010) vii.
4
Jan Klabbers, ‘Towards a Culture of Formalism? Martti Koskenniemi and the Virtues’ (2013) 27 Temple International & Comparative Law Journal 417, 420.
5
Philip Alston, ‘Book Review: Does the Past Matter? On the Origins of Human Rights’ (2013) 126 Harvard Law Review 2043, 2073.
6
Robert Howse and Ruti Teitel, ‘Does Humanity-Law Require (or Imply) a Progressive Theory of History? (And Other Questions for Martti Koskenniemi)’ (2013) 27 Temple International & Comparative Law Journal 377, 385.