The Politics of International Law: Martti Koskenniemi

saving the person companies Phillip Alex mr. Lightwood you great to like see him here nonetheless you may be is one of the most significant theorists in international law more than that I don't say he's the greatest public intellectual in the world I don't say he's the greatest international lawyer in the world but he is without question the prejudice international lawyer whose Republican intellectual in the way we had him here as good heart professor some years ago and it was the result of that with the that partnership I don't strictly too strong terms which led to the kind of companion to international law developed that is being launched this evening at 5:30 you are welcome to come to that after the end of the lecture you are however unless you're affected by this the conference not wealthy to stay and I was shipping you out because there's all sorts of them in logistic arrangements that have to be made if you want to speak to my developing opportunity to do so this evening at the launch I should is Tara here is right in the distance what while we're getting Tara the title of today's talk is the politics of international law now she has published a book we authors ma'am on the politics of international law published by heart is available to you as a 35% discount and you promised to sell four copies you can alternatively use the brochure for the talk today and get a 20% discount directly from the heart if I'm missing out on the mountain it's a great pleasure to have you back to speak on the politics of international law and I won't give you flowers well it's a great pleasure to be back in Cambridge again to see so many friends colleagues to see James and the whole operation of the latter part Center once again so it's customary for speakers to congratulate themselves of the difficulty of the topic they've been given or they've given themselves as there's two specific difficulties with this topic on the one hand it sort of points me to summarize everything I've done in the course of my professional life I wouldn't do that I would be bored and with mr. BAE sitting here next year on the other hand there's been a conference the morning on the politics of international law so many of you are completely inside this topic have a sophisticated framework being constructed in your minds by this and you will feel that I will just be repeating some of those issues that we discussed in the morning but it is true that this is also a summary of what I've been saying in different forms in the course of the years the book the politics of international law is a collection of essays some of you may know some of those essays they all are obsessively focusing just on that one question about what does the political mean in international or how does it operate and how or opposed in this way how does our intuitive understanding of the politics of international law get articulated in the various professional practices in which we are engaged but I'm not going to summarize the book either I'm just going to clear the way to had to explain to you what is the relationship finally now within these walls at this moment I what is the relationship between international law and politics and I say a few words at the at the end on where I think the politics might now be going okay so but the like all good things or let's say like all intellectual things this story also has to start in Germany and it's not where the juxtaposition of of two persons hands Morgenthau and Herr Schlick apart so Hans Morgenthau the founder of the intent of International Relations famously in the United States after he migrated published his dissertation 1929 on the tasks and limits of international law in German there was a Frankfurt dissertation and in that dissertation he asked himself the question what is the role of law in the international political world he's and he particularly wanted to address the question which many German lawyers including his own supervisor coughs troupe had been asking how can we accommodate or deal with the famous reservation of vital interest and honor in international arbitrations is there a way to professionally deal with that it's a political reservation clearly and Morgenthau said well it cannot be delimited or delineated in anything in any specific way but whether we feel some a matter that deals with our vital interests or honor is a function of how intensely we feel about that matter politics is an intensity field things we start to we start to feel I think being political when we feel intensely about that there is no way we can map out the aspects of the world about which people feel more or less intensely which led him to suggest in this book that there is no way to define the the earth delimit international law and politics that would not be a political decision so Hans Morgenthau for him everything in this F so here is if here is politics there is law for him law is whatever is left once the political has been alienated the the space of law the little bit in this universe of things here is constantly conditioned by our understanding of the political or or our desires and passions what we feel intensely so what we are cool about and nonchalant about that's law and it's this little thing over here is what he said now her shoe outer part 1933 in Britain wrote his the function of law in the international community precisely to refute this view well the past function also starts with the query about the nature of the reservation of vital interest and honor can it be delimited and he says like Morgenthau who for whom he had great appreciation you can find louder parts review of of Morgenthau's dissertation in the British yearbook at the in the early 1930s and so loud apart looks empathic at three different questions he asks the the general for the general question that he asked is what is the role of political in law and is this political intervene in three different ways first is the vital interest and honor he says well it's true that it cannot be delimited by any criterion but we can all find a place to it in our imagination as legal professionals we have no difficulty in giving room to sovereignty sovereignty of which vital interest and honor are an expression is a legal notion and of course there's a role for sovereignty like there is for vital interest and honor but that role is completely delineated by law by legal argument through judges on a neighbor everyday basis the second question he asked was well what about the famous distinction between legal rights and political interests people were saying at this time if a method deals with political interests lawyers should not touch it or do it with political rights and again Louderback would say yes there is some truth to that but this doesn't mean that lawyers could not Delian eight a specific area where political interests that is to say sovereignty operates that area is delimited by law and and in this way can be dealt with and the third problem he dealt with was the problem of peace many people were saying not least because of the problems related to the Covenant of the League of Nations and the Paris peace treaty that that peace is not a legal notion and that and we heard this in the Yugoslavia situation for example that when it's an issue of peace then it has to be dealt with by diplomats or by as lawyers really makes it mix these things that make life more difficult and louder Platt said finally well this is an altogether stupid view of law lawyers are not that idiotic to overlook concerns of peace if consent of peace is real it can always be articulated as a legal concern so Walter path was making the same argument about the impossibility the impossibility through a criterion of distinguishing the legal and political but what he was saying was that well through law we can always leave a space for political decisions for sovereignty it's just a matter of the jurisdiction a jurisdictional deal limitation undertaken by law so you see at that early moment in the interwar era two german trained internationalists both addressed the issue of the relations of international law and politics both said there can be no delimitation but what their conclusion that they drew was exactly the opposite with Morgenthau saying politics determines whatever little role there is to law router part saying law determines what ever little role there is to politics and sovereignty so this leads me when I apologize for those students and friends who have seen this figure sufficiently often so this leads me to now finally rid ourselves of the question and the problem what is the relationship between law and politics this image which it did in the course of decades it has deteriorated very badly I have to say the animal isn't really very worried very well at present but this is of course the the famous Wittgensteinian duck rabbit it's supposed to be a duck looking in this direction and the rabbit looking in that direction so the the final answer to the question of the relationship between international law and politics is that it is exactly the same as the relationship between the duck and the rabbit in this image now what is that relationship the relation what can we say about the relationship between the two on the one hand we can say that the distinction is not something in this image in the world itself in this image itself the distinction is something that we operate in our mind and we of course some of us are better and some of us are worse in this and when I show and as this is going to deteriorate in the course of further years if I still am able to to teach this then it will become more and more difficult for audiences to imagine what's going on here but especially if they followed my career in the past they will train themselves and they will see they will train themselves to flip the coin and to see well duck rabbit rabbit duck rabbit duck and so on and if you if you ask small children you will often hear that or see that they don't have that kind of flexibility they usually say well it's a duck and then why can't you see the rabbit can't you see the rabbit and then slowly they get yeah all right and then then they train themselves and then they become suave operators in the international world by being able to recognize from a discourse that they from a distance whether it's a lawyer or political scientist that's speaking so it's not out there and there is in this sense something quite nonsensical in asking the question about the relationship between law and politics if it's the question between about the relationship between the duck and the rabbit there's another important thing here it's of course this is a famous image of guest out psychology in which we look at how people visualize things and the point in guests of psychology is that we always visualize things as holes it's about the holism of our psychological lives this means that when we see a duck or a rabbit we see always an animal as a whole none of us sees a terrible monster who's a half dog half rabbit the psychological mechanism always makes the quite imperfect image oh it makes an understanding of it and this is also an important aspect of our professional lives when we act as lawyers we don't act as 75 percent lawyers 25 percent politicians or 50% and 50% know if we perform a legal task then it's a legal task from the beginning to the end it's it's a whole and we can compare this with two languages so there are the languages of rabbits and the languages of Ducks it might of course be possible to say that there is a language that's half dog half rabbit but this would mean that half of the populations of those animals would always end up misunderstanding or not understanding each other when we speak a language we speak a language as a whole it would be idiotic for me here to start to insert Finnish words in my sentences it might be exotic but it would not enhance our understanding of what it is that I'm saying the point is that law and politics are whole professions they are whole forms of our existential lives they are languages they have their own rules they have their own professional engagements they have their own interests they have their own agendas they have their histories their sociology's their psychological predispositions their ways of behavior their cultural patterns their kinds of jackets that people wore the bags they carry the books they read the love affairs they weight all of this comes together as a whole image of what we recognize as what it is to be the lawyer or to be a politician and we can to finish with this we can witness this in our students and when they innocently come from schools and they all look the same and then after maybe six months maybe one year we start to recognize those who actually went to the law school and they recognize that those who went to read political science they start to see him different they become different ducks separate from rabbits from some understandable a meaningful standpoint they are just the same but from there from the perspective of their own understanding of themselves they become different they they start to speak duck and rabbit and they disagree about a double with each other and they have different preferences their politics is slightly different and we all know how in which ways they are different so this is the final word about the relationship between law and politics and I could stop here but as you know I am still have 40 minutes to go so I can't go stop here and you've all come here so I need to continue so there is a question a further question to be asked well why would one want to imagine oneself as a duck or as a rabbit what specific interest is there for us to be rabbits today everybody why are we rabbits so we have this imagination about what it is that rabbits do in contrast to ducks so there is a familiar understanding in all of us about what the world is like and what we should do about the world that's and it's an image that's portrayed to us always in first-year law classes even at school when we ask ourselves for what this thing law is so there is this narrative which says that once upon a time it was all dark and dangerous it was a jungle out there we fought for our lives it's there was a the aluminum contra ominous in whichever vocabulary we want to say it it was politics it was dark and dangerous passionate uncontrollable anarchic whatever it was really a tough place law came to take us away from there so law is in this sense the other of politics whatever it is law is those rules those institutions those mentalities those ways of behavior which are opposite to this but if they're more to be said about yes there is more to be said about that so so there's this understanding about the relationship so but that but you must see this is a progress narrative so this is not just a conceptual relationship this is also a temporal attempt relationship between the political past and the legal future so one way of thinking of this what the danger of politics is that that it's just facts its power it's the tank that came into my country it's the the bomb that fell it's the fish that hitmen nose etc and so it's what happens it's a sociological fact some people have power others people don't have power that's one understanding of politics power politics and so to get away from there we need that which is not facts so what's that so that's ideas so this is the identity of laws ideas typically has rules also institutions as principles rules such as non-use of force pristine environment good ideas ideas which whatever content they have marked themselves by their contrast to the dark facts of power and present existence so that's one way of understanding and many political scientists realists present this kind of an image impart to ridicule law because of the weakness of ideas if we juxtapose them with with tanks and fists and and power over there now the Hans Morgenthau is on on this side I am a man who who stands strong in the dark jungle that politics is whereas you Hirsch Wouter path or we here at the latter part Center are men and women of ideas who can just be swept away by whatever happens over here so that's one understanding law has some non-factual aspect to it which is I as I've put it many times normativity that's an aspect that that law has law to to the facts of power law poses the normativity of ideas but there's another understanding of the relationship as well and it is politics as socialism capitalism neoliberalism old liberalism law as ideologies well as utopias in the sky sorry politics as utopias and as develop a political ideologies party programs and and so on why in some ways we the world could be ruled by ideologies why isn't it's ruled by ideologies well because we think ideologies are dangerous ideologies are intangible ideologies are merely smoke screens for the passions and selfish desires of the speakers of the languages of those ideologies so we can't rule the world it's an intangible we can't rule the world through ideology so we need instead we need the police we need facts we need legal facts institutions we need a court system we need the fact of their being a rulebook in which we can find out what the law said instead of of consulting for the learning about what it is how we should live and there are dozens of narratives that linked to both of these stories this is the story of law as wonderful humanitarian ideas that intervene in the dark jungle of power politics this is the story of law as policeman order institutions of society that intervene against the endless blabber of ideologues now of course this thing creates a purple - marble in which one of the things that can be said about it is that for every idea that the legal that the law presents somebody is able to say that oh that's the only ideology that's your humanitarian or you and ideology it's a constitutionalist ideology in which case then you fall into being just an ideologue from the perspective of that speaker and he or she can then juxtapose your ideology with the fact of the politics the so on both sides we move with facts and ideas and on both sides we constantly juxtapose the the opponent's ideas with our facts and the opponent's facts with our ideas this was the perpetuity lay that triggered the or that was constructed in the course of my writing of from apology to utopia now a very long time ago and that appears and reappears over and over again in the various essays of this this book this more recent book on the politics of international law now why do we still feel that law is able to trump politics because of the reason that we think that law insurance ideas that are valuable against the dark facts of politics but also because we think that law has a concreteness solidity about it verifiability look at all these books which are here in order to show the concreteness of the legal world in juxtaposition to the endless debates in Parliament and at political rallies to rely on this we are unsafe ground to just to go by what the politicians say well and so on so law has this rhetorical power that seduces us over and over again to imagine ourselves as lawyers instead of as politicians so why do we go to law law is the language of rabbits as against the language of politics the language of ducks what why should we want to choose one language over another well this is because languages are instruments or languages are ways of life through which we come to see some things very clearly law enables us to see society in a particularly sharp fashion that's useful for us well those insights tell us about society thinks that non lawyers do not know we know this from everyday experience lawyers in some aspects of their phenomenological lives are more capable operators of the world than other people are so that's a plus but it comes with a - there's a blindness about law - and we see this in some of the colleagues who even at moments of friendship in the evening we've already left our jackets we've had a couple of drinks and they keep on and on about these cases they've read and about the new legislation etc the inability to look at life from without the legal spectacles on that's a huge human problem often but it's also I suggest a big social problem we don't want lawyers to rule the world not because we wouldn't think lawyers would be good as good as any others but they are afterall lawyers they are the people who find a problem for every solution we don't want them we don't need other kinds of people so the legal vocabulary enables us to operate but it also makes us hopeless operators in situations where we should just live now but we're also called upon to be lawyers with to become rabbits instead of ducks because it offers us a profession and profession in to be a legal professional is goes together with a number of things that we want to have the Paycheck is usually well it could be better about it's okay the places we travel the conference's we go to the way in which people listen to what how we speak in moments when the lawyer speaks we enjoy that so it empowers us so that's the plus now what's the - well it makes us irresponsible so it enables us to say oh it's not me who decides it's you know the decision comes from this book and off you go 30 years or to life or whatever it is we say so it's not we it's the law that kind of an attitude in some social circumstances is precisely what we want to inculcate but and the German history would be just one example it would not be the only mindset that we would want to inculcate the legal mindset is a mindset of personal irresponsibility so again a plus and minus thirdly to become a rabbit is to choose a set of projects law in addition to being a vocabulary and a profession is also historically situated in the advancement of some projects the lawyers preferences are not the common citizens preferences law comes with a definite normative baggage in the international world we can all mostly pick out very rapidly five six seven kinds of preferences it's a constitutional ization project it's an institutionalization project it's a project for empowerment of particular kinds there are bureaucratic practices that are being advanced of say of certain types there is an autumn is a ssin of social collectivities a particular kind and so on Moe is instrumental towards these kinds of projects my own historical research now looks at how the idea of an individual right emerged spread and was attached to various kinds of social problem to various projects of exercise of power in the world its instrumental but it's also limiting and many of us especially in the human rights classes when we lecture students on David Kennedy's writings we lecture to them about the various ways in which the legal language limits our ability to operate and help out those whom we want to help its instrumental useful but it's not a panacea there's a final question about this aspect of law the goods that law brings it's a philosophical question it's a question that is often raised in Europe seldom elsewhere than in Europe or at least well it's raised because the Europeans think they have some response to this and this concerns the inner value of law that there is some morality that automatically is attached to rabbits but that Ducks lack I'm agnostic about this I think it's for all rabbits it's extremely important to imagine that they alongside being rabbits are also moral animals that they that they read books educate each other in moral vocabularies and imagine that the Ducks very business in the various ponds in which they exercise that kind of authority I I'm mixing now ducks and rabbits which actually is a mistake it's a terrible mistake that one should never do but you get the point so there is I think a value to it that lawyers think of their profession as having morally articulable core or aspect to it now but I do have something more to say about the legal project and I have to say and this something more has to do with the why it is that I find it so difficult to think that rabbit know so it's rabbits its lawyers so that rabbits are actually engaged in a moral project and that has to do with the narratives that rabbits tell about what the kind nature of the project is and I already earlier pointed out that if there's a chronology about it that it's a it's a progress narrative in which there there is a starting point which is an experience and then there is an objective somewhere there the we wouldn't so as the saying goes you know in a in a world of angels no law would be needed we need law because we somehow feel that the present world is insufficient as it is unacceptable in some aspects of it and of course we widely differ in our sense of how intensely we feel that the world is unacceptable or disasterous or slightly problematic however we want to put there anyway we need law in order to get us away from that experience the negative experience to some sort of a goal that's out there now that's fine that's an aspect of law it's also an aspect of of the fact that rabbits do think of themselves as moral animals where would they not be inculcated in this kind of a progress story they would find it harder to think of themselves as acceptable as they come from with the paycheck back home at the end of the month but the experience that they have off the the unacceptability of the world is problematic many people would say that the experience this is a standard international or point that the experience of unacceptability can be enshrined in sovereignty some sovereign sovereignty health outer part was typically one of these people many human rights environmental activists many people in the course of fight against impunity feel that sovereignty is the problem sovereignty they feel is a problem because it's a kind of egoism it's a way of turning inside it's a way of keeping the world outside it's just being obsessed about me and my power and my values and my preferences however whatever their nature and if that is the negative experience then of course the experience itself suggests what the project should be the project should be community international community so we all we're all familiar with that kind of an understanding of the world so here it is we as lawyers are in the business of turning an unacceptable world of sovereign egoist into a wonderful world of communitarian sitting by the campfire and singing we shall overcome every evening and if it were like that if that way the way people felt about the world then rabbits would be fine and all they would need to do what's and to get out there to the pond and transform thee than egoistic small communities into a big community of the forest for example but that's so not everybody feels this as the problem as a matter of fact many people feel something they would might go for instance Empire it's the problems and this might be Empire felt in many different ways it would be the empire of let's say neoliberalism or American Empire or empire of capitalism empire of a suffocating ideology of some kind a totalitarian thing some aspect of the world that doesn't allow us to express our identity our identity as more in in small groups or our identity as individuals it's an experience that we are being not allowed to express ourselves we suffocate inside this homogenizing world and from this we of course than this analysis of the situation this malaise immediately suggests another project which is the project of autonomy now here it is the international law lawyers that we are feel the world in terms of two different kinds of experience on the one hand the experience of untrammeled egoism they do just what they want there we need to build a community we need to tie us and take hands with each other that's what we want to have on the other hand there are those people well there's too much taking of hands here damn it I want to take control of my own hands of my life of everything that special about me now of course these are both part of the problem and part of the solution the experience that we as human beings have of the world isn't homogeneous it is different we feel the world's weight in different ways we feel the weight of the world as alienated individuals bumping into each other like ships in the night only obsessed about themselves or we feel the world as this religious sect into which we are all compelled in which we're all compared to sea sing the same hymns to think the same thoughts to dress the same way etc and those opposite experiences give us two opposite projects now however again these opposite projects aren't transparent it's not obvious what autonomy and community mean in their positive descriptions to those who aren't involved in the describing business itself so every autonomy every call for autonomy is a call for sovereignty my personal sovereignty the sovereignty of my tribe the sovereignty of my country etc in which case it starts to feel terribly egoistic and a part of the problem every community will sooner or later start to feel suffocating we feel the imperial weight descending upon us yesterday it was all fun but we can't keep on singing this song you know day in day out there have to be other songs and other ways of life and so it the game starts all over again now international law or being a rabbit is a wonderful experience to the extent that it allows us to think of a moment that's outside our present existence to think of ourselves as involved in a real effort perhaps a collective effort in which the negative experiences of the present would be transcended in a future that's bright and shiny and into which our Institute Asians are taking us the problem with that is that we feel as I said the world's weight differently and not only differently but in opposite ways in ways that enable us collectively but perhaps more interestingly individually to both want and not want what we intuitively first would like to have as our world changing project so the awareness of this awareness of the ambivalence of the world and of myself of every rabbit has made it for me impossible to think that there actually is in some way an internal morality to being a rabbit that would make being a rabbit somehow in some evaluative scale more important meaningful than being a duck there I've said moments like for instance when you want to run away from somebody that you want to be a rabbit rather than a duck and then it's good fortune if you happen to have that education and those ears and you were able to go that fast but it's not always like that and if there's a pond and you have to cross then you know what you have to do for best of my students I recommend that they are prepared to be both one and the other that they can flip the coin that they can immediately see the both sides of those professional alternatives that are being offered to them there is one final thing I promise to say something about the politics of international law today so I want to set up a you Scoggins prohibition to those of my left friends who in the course of the years together with me have insisting on the polarization of this or that but no it's a regular left theme to look at the politics of international law of economics to say it's political now having having said that often enough and having gone through these images often enough it has I can report to you come to transpired that that evocation of the political is meaningless it doesn't mean anything if you catch me still doing this in the future well I'll give you 50 euros to put it no higher than that but so I want to invoke a prohibition of ever to to look at the polity sation of this because it's the me to call for the polarization of this or that would be to insist on it being a duck or a rabbit but there are questions of authority of importance out there questions of preference questions of distribution questions of good and less good choices how do we go about them so one prevalent phenomenon in my professional life has been the fragmentation of international law and I want to go into this in any detail but I've come to understand fragmentation as a professional worry among ambitious operators that the legal vocabulary that speaking rabbit no longer carries the kind of authority that is used and therefore we have to speak trade law economic law security law human rights law environmental law sports law you have it now that development has been conventionally discussed in terms of the politics of expertise we become more and more technical in our expertise in our demand of expertise in our recognition of what is authoritative in the languages that parade in the international political field now it seems to me that the relationship between law and politics is not the only relational thing in the world that can be articulated in terms of an analysis like this what is environmental law what is the law of the sea what is chemical law for example in the course of the fragmentation project project I look at some examples and I found that for instance if one imagines a courage of of chemical substances in to take an almost random example in the Baltic Sea one can articulate that in legal terms in nine different languages nine different if you wish rule schemes nine different professional sensibilities nine different frames law of the sea Human Rights chemical law Baltic law law of the court laws of the coastal states etc etc etc and each of these articulations carried with it a slightly different suggestion as to how one should deal with that problem I suggest to you that this problem is endemic and that everywhere every aspect of our contemporary lives can be recounted in easily half a dozen dozen doesn't really matter how many expert languages and each of those languages comes with its own cultural sociological historical and of course economic biases the task for active left-leaning by not also not so left-leaning lawyers - trying to operate in this world in a fashion that would be politically effective would today it seems to me call for what I've called the politics of read ascription politics of read ascription would be about looking at a problem out there in the world and describing or in this case read ascribing the problem in terms of the language of which we me and my friends feel that we are authoritative and then to deal with that problem in the way we want to deal with this the politics of read ascription is made all the easier because those who are responsible for the fragmentation for the rise of the rule of technical languages are usually committed to believing that each language is an antler or addresses an ontological aspect of the world that each language is the authentic representative of what it is that it purports to represent if there is one thing that rabbits learn in rabbit school it is that there are no such languages and that rabbits that the special professional ability of rabbits is to jump from one language to another to be natives native language speakers in as many languages as they have political projects and I end with that ambiguous note thank you [Applause]

Channel: Cambridge Law Faculty

Views: 56,749

Rating: 4.9076924 out of 5

Keywords: Politics, international law

Id: -E3AGVTHsq4

Length: 51min 28sec (3088 seconds)

Published: Mon Oct 28 2013