Martti Koskenniemi

Fragmentation of International Law? Postmodern Anxieties

Successive ICJ Presidents have expressed concern about the proliferation of international tribunals and substantive fragmentation of international law. This is not a new phenomenon. International law has always lacked a clear normative and institutional hierarchy. The problem is more how new institutions have used international law to further new interests, especially those not predominant in traditional law. The anxiety among ICJ judges should be seen less as a concern for abstract “coherence” than a worry about the demise of traditional principles of diplomatic law and the Courts privileged role as their foremost representative. As jurisdictional conflicts reflect divergent political priorities, it is unclear that administrative co-ordination can eliminate them. This does not, however, warrant excessive worries over fragmentation; it is an institutional expression of political pluralism internationally.

‘The Lady Doth Protest Too Much’ Kosovo, and the Turn to Ethics in International Law

Most international lawyers approved of the 1999 bombing of Serbia by the members of the North Atlantic alliance. But most of them also felt that it was not compatible with a strict reading of the UN Charter. The article describes the argumentative techniques through which international lawyers tried to accommodate their moral intuitions with their professional competence. The urge to achieve this, the article argues, arose from a general turn to ethics in the profession that has been evident since the end of the Cold War. This has often involved a shallow and dangerous moralisation which, if generalised, transforms international law into an uncritical instrument for the foreign policy choices of those whom power and privilege has put into decision-making positions.

Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization

Globalization is a topic of some anxiety among international lawyers. On the one hand, its fluid dynamics — fragmentation, deformalization and empire — undermine traditional diplomatic rules and institutions. On the other hand, the effort to reimagine international law in purely managerial terms appears intellectually shallow and politically objectionable. To avoid marginalization and instrumentalization, many lawyers have begun to think about international problems through a constitutional vocabulary and have often cited Kant in that connection. This Article argues that, while it is always possible to grasp the world through a constitutional vocabulary, this does not provide determinate answers to international problems. Instead of an institutional architecture or a set of legal rules, constitutionalism is best seen as a mindset — a tradition and a sensibility about how to act in a political world. Contrary to a widespread assumption, Kant’s political writings may also be read in this fashion and, if so, a meaningful international transformation might necessitate not only legislative or institutional intervention but a professional and perhaps spiritual regeneration.

Miserable Comforters: International Relations as New Natural Law

In his ‘Perpetual Peace’, Kant indicts the natural law tradition (Grotius, Pufendorf, Vattel) as ‘miserable comforters’ whose principles and doctrines ‘cannot have the slightest legal force’. The indictment emerges from Kant’s critique of natural law in both its empirical and rationalist variants as unable to uphold a really ‘binding’ notion of cosmopolitan legality. Since the early 1990s a new literature has emerged in the International Relations field that speaks about the effectiveness and legitimacy of international law as a form of supranational ‘governance’. This article argues that that literature raises precisely the same problems that Kant detected in early modern natural law. Like the latter, this literature is best seen as an attempt to appropriate the voice of international legality to a fully instrumentalist discipline dedicated to serving the interests of power.

International law and hegemony: a reconfiguration

Instead of appearing as a stable set of normative demands opposed to international politics, international law is better understood as an aspect of hegemonic contestation, a technique of articulating political claims in terms of legal rights and duties. The controversies in the law concerning the use of force, the law of peace, human rights, trade and globalisation reflect strategies through which political actors seek to make their preferences appear to be universal ones. But the legal idiom also contains a utopian aspect: it distances political actors from their idiosyncratic preferences and thus creates the international world as a legal community in the act of invoking it.

Empire and International Law: The Real Spanish Contribution

The Spanish Scholastics of the sixteenth century are generally known as the precursors of Hugo Grotius in the application of natural law and the law of nations (ius gentium) to the political relations of early modern states. Their writings on the American Indians have been read as especially significant for the formation of the humanist–colonialist legacy of (European) international law. I have no quarrel with these views. This essay will, however, claim that the principal legacy of the Salamanca scholars lay in their development of a vocabulary of private rights (of dominium) that enabled the universal ordering of international relations by recourse to private property, contract, and exchange. This vocabulary provided an efficient articulation for Europe’s ‘informal empire’ over the rest of the world and is still operative as the legal foundation of global relations of power.

What Use for Sovereignty Today

To suggest that there might be good use for state sovereignty sounds counter-intuitive. After all, at least since the time of the League of Nations, we international lawyers have been critical of sovereignty. We have thought it a narrow, ethnocentric way to think about the relations of human beings. We have rehearsed a moral case against it. Sovereignty, we say, upholds egoistic interests of limited communities against the world at large, providing unlimited opportunities for oppression at home. It is, we sometimes say, “organized hypocrisy”. 1 If a country claims that a matter is under its “domestic jurisdiction”, and refers to Article 2(7) of the UN Charter, we are inclined to think of this as an effort by its leaders to hide from well-founded international criticism. From a sociological perspective, we have attacked it because it fails to articulate the economic, environmental, technological, and ideological interdependencies that link humans all across the globe, giving a mistaken description of the reality of human relationships across the world. And from a functional perspective, we have observed its failure to deal with global threats such as climate change, criminality, or terrorism, while obstructing such beneficial projects as furthering free trade and protecting human rights. Therefore, we have wanted to replace it with international or global approaches, working across “artificial” national boundaries in pursuit of objectives that have nothing territorially limited about them. 2

Law, Teleology and International Relations: An Essay in Counterdisciplinarity

Interdisciplinary approaches often bemoan international law’s lack of theoretical sophistication and naïve utopianism. Instead of offering effective tools of governance, it seems committed to outdated ideas about an international public realm and a dubious teleology of progress. This essay – given as the E. H. Carr lecture at the University of Aberystwyth in 2011 – reviews efforts to reform international law into a science and a more efficient instrument of international rule. Such efforts have been a part of international law’s internal development but their lack of success depends on a mistaken view of the field as a ‘discipline’ − a set of theoretical or technical propositions. This essay defends a view of international law as an argumentative practice in which political claims are defended and attacked, rather than as a governance tool or institutional blueprint. At its worst, law may buttress bureaucratic privilege. At its best it may offer, for a cynical world, a vocabulary for imagining better futures. It may also sharpen political thought and strategic awareness, but it cannot replace them.

The Advantage of Treaties: International Law in the Enlightenment

In A Treatise on Human Nature (1739) David Hume divides the law of nations into two types. First are laws having to do with specifically international matters such as the sanctity of ambassadors, declaration of war, abstention from poisoned weapons and others that “are evidently calculated for the commerce, that is peculiar to different societies”. Alongside these, there are rules of general natural law which he groups in three: stability of possession, its transference by consent, and the performance of promises. Such rules are applicable between states in the same way as they are applicable between individuals because the social context is essentially similar. As Hume says, “The same interest produces the same effect in both cases.”1 ☼ Academy Professor, University of Helsinki, and Arthur Goodhart Visiting Professor of Legal Science, University of Cambridge. This is an extended version of a lecture given at the University of Edinburgh on 25 October 2007 to mark the tercentenary of the School of Law. 1 D Hume, A Treatise on Human Nature (ed E C Mossner, 1969) 3.2.11 (618).

What Should International Lawyers Learn from Karl Marx

International law and Marxian theory both emanate from nineteenth-century progressivism. Although Marx had no interest in international law, many aspects of his work are very relevant for it. Where (modern) international law became secular and focused on states and human rights, (early) Marxian theory would claim that its secularization did not go far enough. Instead, statehood and individual rights appear as forms of political theology . Today, deconstruction carries on some of the heritage of Marxian dialectics. The task, however, is to move from doctrinal critique to progressive practice. In this, the theory of hegemony provides the best available account of how that can be undertaken without losing the ambition of the laws universality.