The Politics of International Law

Martti Koskenniemi ^*1

I. The Flight from Politics

It may be a matter of some controversy among historians as to when one should date the beginning of the modern states-system.² Less open to debate, however, is that somehow the idea of such a system is historically as well as conceptually linked with that of an international Rule of Law. In a system whose units are assumed to serve no higher purpose than their own interests and which assumes the perfect equality of those interests, the Rule of Law seems indeed the sole thinkable principle of organization - short of the bellum omnium. Since the publication of Emmerich de Vattel's Droit des gens ou principes de la loi naturelle appliquées à la conduite et aux affaires des nations et des souverains (1758), jurists have written about international matters by assuming that the liberal principles of the Enlightenment and their logical corollary, the Rule of Law, could be extended to apply in the organization of international society just as they had been used in the domestic one.³

Notwithstanding the historical difficulty with dates and origins, the connexion between the Rule of law and the principles of the Enlightenment appear evident. Of the latter, none seems more important than that of the subjectivity of value.⁴ Hobbes writes:

For one calleth wisdom what another calleth fear and one cruelty what another justice; and prodigality what another magnanimity... And therefrom such names can never be ground for any ratiocination.⁵

However much later liberals may have disliked Hobbes' substantive conclusions or his political realism, the one thing which unites them with Hobbes is their criticism of relying upon natural principles to justify political authority. Appealing to principles which would pre-exist man and be discoverable only through faith or recta ratio was to appeal to abstract and unverifiable maximums which only camouflaged the subjective preferences of the speaker. It was premised on utopian ideals which were constantly used as apologies for tyranny.

From the simple denial of the existence of principles of natural justice - or at least of our capacity to know them - follow the three liberal principles of social organization: freedom, equality and the Rule of Law. If man is not born to a world of pre-existing norms, then he is born free; if there are no antecedent principles establishing the relative worths of individuals, the individuals must be assumed equal. And finally, freedom and equality are guaranteed only if social constraint is governed by public, verifiable and determining rules: "A free people obey but it does not serve; it has magistrates but not masters; it obeys nothing but the laws, and thanks to the force of laws, it does not obey men."⁶

The fight for an international Rule of Law is a fight against politics, understood as a matter of furthering subjective desires and leading into an international anarchy. Though some measure of politics is inevitable, it should be constrained by non-political rules: "...the health of the political realm is maintained by conscientious objection to the political."⁷

The diplomatic history of the 19th century is a history of such a fight. Since the Vienna Congress of 1814-15 and the defeat of Napoleon, the relations between European powers were no longer built on one power's search for primacy but on a general pursuit of the maintenance of the balance of power, guaranteed by complicated legal procedures and alliances.⁸ As contemporaries increasingly saw Europe as a "system" of independent and equal political communities (instead of a respublica Christiana) they began to assume that the governing principles needed to become neutral and objective - that is, legal.

The legal scholarship of the 19th century interpreted and systematized diplomatic practice into legal rules. It assumed that the behavior of European states was determined and explicable by reference to a body of (European) public law. The plausibility of this assumption relied on the procedural character of that law. Containing mainly rules concerning diplomatic and consular contacts, procedures for attaining statehood, territory or neutral status, it did not severely restrict the ends which European sovereigns attempted to pursue. In particular, it renounced theories of the just war: war became now one political procedure among others.⁹ Though the professional lawyers of the 19th century did speak about justice in the conduct of the sovereigns' affairs, they no longer thought of justice as material principles. Woolsey put the matter adroitly:

By justice, however, we intend not justice objective, but as it appears to the party concerned or, at least, as it is claimed to exist. From the independence of nations it results that each has a right to hold and make good its own view of right in its own affairs.¹⁰

Though 20th-century lawyers have not looked too kindly upon the scholarship of the preceding century, they never rejected the ideal of the Rule of Law. On the contrary, the reconstructive scholarship which emerged first from the catastrophe of the First World War and then in the 1950s and 1960s accused the pre-war doctrines of not going far enough to uphold the Rule of Law. Wherever attempts by jurists to construct a solid framework of public law had faltered, it had done so not because of some defect in the liberal assumptions behind this project but because jurists had deviated from them.

The vision of a Rule of Law between states (which re-emerged most recently in United Nations General Assembly Resolution 44/23 [15 November 1989] declaring the period 1990-1999 as the "United Nations Decade of International Law") is yet another reformulation of the liberal impulse to escape politics. So strong is the grip of this vision that the representative of the Soviet Union at the same session of the General Assembly explained that in his view to restructure the basis of international relations there was a need to "arrive at a comprehensive international strategy for establishing the primacy of law in relations between states."¹¹

Throughout the present century, reconstructive doctrines have claimed that what merits criticism is the corruption of the Rule of Law either in the narrow chauvinism of diplomats or the speculative utopias of an academic elite. If only the Rule of Law can be fortified to exclude these contrasting distortions, then at least the jurist's part in the construction of a just world order has been adequately executed.

In this article, however, I shall extend the criticism of the liberal idea of the Rechtstaat, a commonplace in late modern western society,¹² into its international counterpart. I shall attempt to show that our inherited ideal of a World Order based on the Rule of Law thinly hides from sight the fact that social conflict must still be solved by political means and that even though there may exist a common legal rhetoric among international lawyers, that rhetoric must, for reasons internal to the ideal itself, rely on essentially contested - political - principles to justify outcomes to international disputes.¹³

1 ^* Permanent Mission of Finland to the United Nations.

2 For example, A.F. von der Heydte: Geburtstunde des souveränen Staates (1952) suggests the turn of the 14th century, 41-43, while F.H. Hinsley: Power and the Pursuit of Peace.(1962), 153, argues that one cannot properly speak of a states-system until the 18th century.

3 The analogy is explicit in J.J. Rousseau: The Social Contract (trans. & introd. by Maurice Cranston) (1986) Bk.I Ch. 7 at 63; J. Locke, Two Treatises on Government (intr. by W.S. Carpenter) (1984) Second Treatise, sect. 183 at 211. For commentary, see, e.g., P. Vinogradoff, Historical Types of International Law (1920), 55-57; E.D. Dickinson, The Equality of States in International Law (1920), 29-31, 49-50, 97-98, 111-113. See also M. Walzer, Just and Unjust Wars (1980), 58-63; C.L. Beitz, Political Theory and International Relations (1979) 74. For useful analysis of the effect of the analogy to the conception of a state's (territorial) rights, see A. Carty, The Decay of International Law? (1986) 44-46, 55-56.

4 My discussion of this principle is influenced by R.M. Unger, Knowledge and Politics (1975) 76-81, and A. MacIntyre, After Virtue; A Study in Moral Theory (2nd ed.) (1985) 6-35.

5 T. Hobbes, Leviathan (ed. & intr. by C.B. Macpherson) (1982) Ch. 4, at 109-110.

6 J.J. Rousseau, _uvres complètes, Pléiade (Vol. III sect. 841-2) quoted by Cranston (Introduction to J.J. Rousseau, The Social Contract, supra note 2, at 32).

7 Wight, `Western Values in International Relations', in Butterfield, Wight, Diplomatic Investigations; Essays in the Theory of International Politics (1966) 122.

8 See, e.g., F.H. Hinsley, supra note 1, at 186-271.

9 See, e.g., H. Wheaton, Elements of International Law (Text of 1866 with Notes, Carnegie Endowment, Classics of International Law, No. 19) (1936) 313-4.

10 T.D. Woolsey, Introduction to the Study of International Law; Designed as an Aid in Teaching, and in Historical Studies (5th ed.) (1879) 183.

11 `Memorandum: On Enhancing the Role of International Law', UN Doc.A/44/585 (2 October 1989).

12 For the ensuing text, particularly relevant are criticisms stressing the internal tensions of liberal theory. See generally Unger, supra note 3, at 63-103 and, e.g., A. Levine, Liberal democracy; A Critique of its Theory (1981) 16-32; Fishkin, `Liberal Theory and the Problem of Justification', NOMOS XXVIII at 207-231.

13 This article is a condensed version of some of the themes in M. Koskenniemi, From Apology to Utopia; the Structure of International Legal Argument (1989).

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