New International Law: Silence, Defence or Deliverance?

New International Law: Silence, Defence or Deliverance?

Outi Korhonen¹

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I. Introduction and Article Outline

The meaning of international law is conveyed in the act of interpretation. The meaning consists of both the semantic content and the significance of the applied norms in an actual situation. This is because international law is not a physical fact, not a thing, but a human phenomenon. Even sceptics have to yield to some sort of understanding of meaning if they try to articulate their scepticism. In human phenomena the two - the meaning-content and the meaning as significance - have to be considered together. Every legal claim in the international environment has a significance and a semantic meaning which depend on each other. Both are present in the making and in the perception of a claim. They are the two sides of the same coin.² The semantic meaning and the significance of international law become known only through an act of interpretation. This is the actuality character of international law. Norms complete with meaning and significance do not exist a priori as independent objects which could be picked up by whomever, whenever. They come into existence in a network of actual factors. The practitioner of international law knows this from experience. There is no book or store where he could find universally applicable norms and put them to use as they are. That is why he has to keep on struggling with those hard cases, no matter how many of them he already has on the record. Time after time he has to choose and compromise anew, taking into account the circumstances, possible consequences of his interpretation and semantic possibilities. In fitting together norms and particular circumstances, the practitioner cannot separate the meaning-content and the significance. The significance is reflected in the search for the right meaning-content.³ The mind cannot search for a meaning without considering what it really means, i.e. what the significance is. They are inseparable, regardless of how hypothetical one is trying to be.⁴ Through interpreting international law in actual situations the practitioner creates the meaning-content of individual norms in real-life situations. The circumstances attach a significance to any particular meaning-content ad hoc. The amount of `creativity'⁵ involved in the act of interpretation has been widely and critically discussed. Its limitation has been attempted by means of rules of interpretation, standards of rationality, requirements of consensus etc.⁶ Creativity has been curbed by a variety of boundaries from the outside. Nevertheless, however reduced it has been made to seem, creativity has remained a subjective (inner) capacity of the individual (mind) interpreting in a unique situation. Thus, its core remains beyond the reach of any pre-set standards.

In recent international law scholarship new approaches have emerged. The point of departure has been the inner contradiction of international law, illustrated above as the dilemma of interpretation. The new approaches have uncovered the dilemma of objectivity and subjectivity of international law - in other words, the dilemma of idealism and relativism. Are there determinate objective ideals, objectively knowable behaviour, objective facts, objective truth? Or are law, norms and legal decisions just as relative and indeterminate as their subjectively interpreted meanings? This dilemma is present in the theory, doctrine and practice of international law. Both objectivism and subjectivism seem persuasive. In fact, both are needed.⁷ However, hardly anyone would answer this first set of questions absolutely in the affirmative. Naive objectivism has been buried in the course of the century. Despite its extinction, modified legal objectivism⁸ flourishes, for the relativist argumentation seems to deprive law of its legality and its legitimation force vis-à-vis apologist subjective politics. The proponents of modified objective legality, or the mainstreamers, try to retain the normativity of law by invoking generality, rationality, consensuality, behavioural coherence or any such positive standards. All of these definitions can be contested because their application requires subjective assessment, and hence, is relative. However, a naive subjective relativist is as hard to find as an archetypical objectivist. Some of the arguments of the relativist view have been developed by the critical new stream of international law scholarship.⁹ Critics within this `new stream' criticize the reversibility of the mainstream argumentation doctrine which circulates between naive objectivism and subjectivism. They emphasize the ad hoc character, the dynamism, and the equity considerations in upholding normativity in practice. In other words, an opposition evolves between the definitionists in the mainstream and the indeterminationists in the new stream. The first, introducing ever-better methods and definitions, are accused of rigidity, reduction and either alienation from, or total surrender to, practical interests. The latter, deconstructing conceptions and avoiding definitions, are criticized of laxity, nihilism and the politicalization of practice.

The critical approaches to international law have laid bare the problems caused by the ideological underpinnings of legalism; the underlying liberalism, the dichotomy of sovereignty and community-based goals, the reversibility of legal argument, the evasion of substantial questions by the judiciary. The mainstream approaches seem to be unable to give up these foundations and structures regardless of the controversies they involve. In its turn, the mainstream accuses the new stream of eliminating international law. If this accusation were true, the new stream would be in a process of abolishing the meaning and significance of international law. It would be contesting the actual interpretative situation from which this article proceeds. Thus, it would be abolishing itself, because the necessities of the interpretative situation is exactly from where the new critique springs. It is true that, for instance, the deconstructive approach manages to disintegrate the groundwork of international law scholarship to such an extent that to certain observers the result seems to be nihilism.¹⁰

The motivation for this article is the question arising from the gloomy picture presented: How is one to study or practice international law if the uncovering of foundational controversies is paving the way to utter nihilism? What kind of a justifiable position is there for study and practice of normative international law? In other words, this inquiry focuses on the professional ethics of international legal work.

Approaching the question philosophically, I disagree that there should be a necessary binary choice between objectivism and nihilism. A way to know and practice international law which does not amount to an objective epistemology is possible. The exclusion of objective epistemology does not mean anarchy. An approach to international law which is supportable in terms of epistemology, ethics and ontology exists.¹¹ It will be discussed in the second section of the present article. It is not a simple formula. Therefore, some clarifications are needed first. A new way of thinking beyond the objectivism/relativism divide cannot be grasped without understanding the origins of a discipline.

To begin with, it is important to understand the concept of situationality. It is here reflected in the international legal context. It sheds light on the interrelationship of a human person and the world, the unity of theory and practice, the illusionary character of objectivity, the pitfalls of relativity and the necessity of contextual limits and their openings. Second, following the fall of objectivity and neutrality ideals, the correctness of the realist challenge and its heirs is reconsidered. The identity of international law is considered in relation to international politics. Next, after having presented as very challenging the realist argument, a division between tekhne and phronesis - dimensions of international legal skill - is considered. In the second section of the article, there follows a deliberation of the new international legal approaches. A division or a spiral move between three different orientations is suggested. The aim is to show their characteristics in a way that enables the reader to see the underlying world-view and the conception of meaning concerning legal activity. Only then may it be decided whether these approaches are convincing, justified or simply add to the scepticism about international law.

A. Situationality - Limits and Potentials

All the talk about the controversial character and elimination of international law increases the level of uncertainty that the practitioner faces. Regardless of the insecurity of the groundwork, the international lawyer and scholar are supposed to come up with convincing interpretative arguments from day to day. Subjectivism would have it that their interpretations are always relative. Objectivism maintains that outside standards enable them to find incontestable interpretations. Both views are inconclusive. The practitioner has rules to follow. However strict they are, he always operates with a margin of appreciation whereby he is free to make subjective evaluations. A balance between subjective evaluation and objective standards has not been struck. Interpretation and skillful international legal management live and prosper on this constant need for rebalancing. The former functioning on the inside, the latter on the outside create circularity. The produced argumentation sweeps back and forth. Practice reflects this circularity, as does the scholarly narrative. Indeterminacy results. But an international legal circumstance never occurs in a void. The practitioner is no solipsistic monad. Both are situated in a more or less determinate tradition and in historical continuity. These determined factors anchor the practitioner in reality. Still, his argumentation remains undetermined. In order not to let the indeterminate and determinate influences confuse his thinking, the international law practitioner should become conscious of them. They constitute both the potentialities and the limitations of his situation.

The concepts of situationality and situation are invading the theory of international law. These concepts, more frequently used by philosophers, developed by hermeneuticists and phenomenologists, refer to a certain feature in human existence. Situationality is an ontological concept. It is a manifestation of one of the three ontological elements which constitute human existence: The mind, the body and the situation.¹² The situation breaks the duality of mind and body and connects these to each other. It also connects the human person to his or her surroundings. In short, a person's situation is his or her location in the spatio-temporal continuity of the world. It can be described as personal roots which keep growing with the person. Through the situational element the individual is connected to dynamic interaction with other phenomena. Situationality is the opposite of solipsism and monad-like existence. The situation encompasses concrete matters such as sex, race, genes, physical environment, home, work, other persons; but also abstractions such as culture, tradition, upbringing, education, profession, economic and social conditions some of which we can choose and some not. These components form the situational conditions of a human person that limit and shape human life. The situational limits are often referred to as the Vorverständnis. The concept encompasses the idea that the limits are there before (Vor) anything can be understood (verstanden) by the mind. The mind cannot overstep these limits. But it is also not wise to forget potentialities that situationality offers, and succumb to sceptical relativism.

Understanding the concept of situationality is of crucial importance in international law. It is the ultimate denial of solipsism, it enables interpersonal and social communication, through it the individual influences other persons and phenomena and is influenced by them, it connects the lawyer to normative tradition. Giving the ability to encounter others, situation delivers the basis of ethics, knowledge, responsibility - and law. Due to the interconnection between the mind and the situation, the thinking and theorizing of a person influences reality. If a person's views change, his location changes; he becomes otherwise situated than before. This shift influences all the matters that he is in anyway related to, i.e. all the components of his situation. It is important to note that if one relation changes, the whole changes and all the other relations with it. Thus, for instance, in international legal practice the borders between political, personal, legal, moral and other influences become nebulous. The individual situation adds to the concept of responsibility both in magnitude and in variety. On the one hand, the international legal theorist or practitioner is responsible for all those he is related to through his situation, not just the `legal audience'. On the other, the ability to claim only scientific (as opposed to practical) responsibility vanishes. One is always both theoretically and practically responsible. It should be clear that if an international legal scholar either confines himself to making hypotheses and models or declines to answer pragmatic questions, he still cannot escape influencing reality. Even `no comment' is a comment. In addition, the dynamism of situationality includes the fact that the influences run in both directions. If the scholar's findings are continuously irrelevant and insignificant for his life-world, he becomes alienated. The practitioner faces the same condition. In interpretative action, the practitioner is striving for meaning and significance. If he - for one reason or another - tries to evade this, it affects his situation as a whole; the world starts to evade him. The meaning of worldly phenomena escapes him. His attempts to form a coherent world-view to ground adequate interpretations will be useless. For an international lawyer this would mean an inability to find meaningful solutions to real-life problems. It would mean surrendering to being simply an instrument of the vast international `technology' of law. This results in indifferent management, in other words, totalizing the other. It frustrates the sense of meaning of one's international law work.

A concept close to situationality is that of socialization. Situation comprises the limits and potentials of the human condition, socialization those of the social condition. For example, in becoming an international lawyer one becomes socialized to this particular social role. The principal socializing factor is language with its traditionally developed meanings and meaning-structures. In situationality the determinant is language in general, in socialization a specific jargon, e.g. the language of the international legal tradition. In order to be able to make a meaningful argument in international law one has to adapt to the meaning-structures, the already-defined problematic, and the direction of epistemic interest that together amount to the world-view of the discipline.¹³ These also constitute the `technology' of international law referred to above. This example can be extended to any discipline and to life in general. However, the more one tries to ascertain the meanings and confine oneself to the given problematic, the more one becomes determined by the particular world-view. The world-view begins to seem first incontestable, then self-evident, finally natural until not even perceived any more. This results in rhetoric filled with reified concepts¹⁴ which fails to offer alternative solutions for practice. The controversies of the world-view are automatically controversies of the practice which is based on it. It is preposterous to think that one could somehow escape the problems by locking them up in a separate compartment of one's consciousness. There is neither a compartment nor a way to lock anything away from the interconnectedness of situationality. Socialization and situationality bring contextual elements, from the tradition one is part of to the world-view propagated, to every action the individual agent performs, be it judicial or otherwise. Therefore, an organized conception of the situational limitations is indispensable for the international lawyer. It helps him to understand the conditional character of his engagement without becoming a relativist for whom the discipline of international law is just another random name for the universal project of power struggle or philanthropic management. Neither the cynical power orientation nor the charity approach present any alternatives to the circularity and frustration experienced in the discipline today.

B. Situationality and Interpretation

Situationality locates an individual in time and space, history, tradition and physical reality. However, this description does not exhaust the matter. It would be a terrible mistake to take situationality to be an entirely determining quality. In fact, situation forms an indeterminate momentum in a human being - the potential to open encounter between the individual and the world.¹⁵ Situation sets limits and opens possibilities. In the context of interpretation it means both frames and openings. Situational interpretation is open and closed at the same time. It is closed by the Vorverständnis, the necessities of socialization and situation. But it is not alienated from other phenomena by objective boundaries. The situational frames are moulded in a dynamic exchange.

Normative interpretation must be situational. More accurately, all human action is already situational because human existence is. However, international legal interpretation does not reveal its situationality easily. That is because the constitution of meaning has been covered by international legal structures. These structures seem to uncover the meaning in a process which totally determines the encounter of the interpreter and interpreted. Principles are used in these argumentation structures. As regards international legal interpretation there are textual, teleological, systemic, intertemporal, dynamic, effectiveness and equity principles. Their simultaneous application creates a truly multifaceted, but still utterly closed approach. International legal interpretation doctrine usually starts from the textual method. The Vienna Convention on the Law of the Treaties (1969) is claimed to be an affirmation of the ascendancy of the textuality approach - an objective, closed method. The number of ratifications and accessions to the Vienna Convention is among the highest for any international treaty. Thus it is a good starting point when searching for a consensual standard of interpretation. The relevant Articles 31 (and 32) mention the ordinary meaning, the context, the object and purpose and good faith as the rule. Together these principles amount to systemic objectivism including the idea of a determinable intention of the parties.

It is evident that the Vienna rule is inconsistent with the situationality conception which denies the possibility of detached, objective knowledge. The fact remains that meaning is a product of interpretative activity by an individual mind working within the frames of a situation. The situational approach seems ever more persuasive when one takes a closer look at the inner contradictions of the sophisticated formulation. The objectivism of the Vienna rule is undermined by its own inherent subjectivism and relativism. The meaning of the concept ordinary meaning requires just as much interpretation as any `other meaning'. The context requires determining, limiting and deciding on what should be included or excluded. Similarly, object and purpose, intention and good faith have to be subjectively interpreted in order to be understood as meaning something. In brief, in the place of objectivism one detects relativism and subjectivism; where universality and neutrality is claimed, a particular, eclectic perspective is found. Or, and this is the most problematic feature, vice versa.

Because the methods of international legal interpretation fail to have access to a desired objective meaning, they can only produce arguments about meaning which are just as vulnerable to criticism as the original contrasting opinions from which they started. This is why a `healthy' recourse to equitable principles and relativistic notions has become a common phenomenon.¹⁶ It effects the giving up of the pretence of an ability for objective and neutral decision-making. It also means an urgent search for a new basis for judicial integrity and identity, resulting usually in the revival of the old role of the balancer or arbitrator. One very important healthy feature of the equity principle is the openness of its definition. Another is the clear recognition of subjective evaluation in the process of interpretation. However, these features are severely criticized for their subjectivism, relativism and apologism. One continually comes across the contrasting of the equitable solution with an equitable solution, the former being objectively determinable, the latter falling outside international law.¹⁷

International legal interpretation doctrine is in flux. The practitioner faces the dilemma of objectivism and subjectivism again and again in the ever multiplying forms of relativistic technocracy. He does not know whether his project should be based on the `is' or the `ought', description or prescription, Society or Law.¹⁸ In interpretation, he applies a wide variety of methodological tools. He might use arguments of effectiveness, effet utile, Vertrauensschutz, implied powers, dynamism, peremptory character, bona fide, tacit consent or equity and if one argument does not succeed he can shift to the next. The practice seems both open and closed. It seems indeterminate in its procedural results and determined by the foundational dilemma. It is free and limited. But this is not situational openness and closure. It is rather sceptical relativism and technocratic management. The doctrine does not recognize situational limitations. If it did, it would not vainly try to curb interpretation involving `extra-legal' standards.

Situational frames limit interpretation in the only necessary and the only possible way. However, doctrine fails to recognize the potentials of situationality. If it did, it would not have to worry about the `objective meaning' of equity or effectiveness or dynamism. They can be understood only from the perspective of the individual situation, taking account of their respective significance in the particular case. To attach them to a structure, e.g. determined international law, is superfluous. It increases complexity without securing universality. It alienates them from the reality which constituted them and where they should be reconstituted time and time again. Thus, to briefly conclude, rather than adding imaginary limits and freedoms, interpreters should become conscious of those they already have at the base of their own self-understanding. The piling up of contradictory principles obscures the clarity of situational interpretation. The mind becomes disoriented and the situation alienated. An alienated situation where controversies reign is no basis for organizing reality for other people, i.e. making normative solutions and managing world affairs. Only a reflected understanding of one's situation is a fruitful basis for finding solutions - meaningful interpretations - in normative practice. Situational interpretation thus escapes the dilemma of balancing between objectivism and subjectivism, between outside and inside. Situation is neither `in', `out' nor `in-between' because it is the tie of the individual to the world.

C. The Realist Challenge

Situational interconnectedness blurs the borderlines between different disciplines. The practitioner of international law does not work in an isolated legal realm. He works in a realm where all situational influences interweave: legal, political, personal. The practitioner of international law faces a variety of influential factors. They emerge into interpretation through the significance element. A specific legal significance is a fiction, a hypothesis non-existent in practice. This has been widely recognized in the international law of the nineties. Emphasis has been put on the relativist nature of international legal activity. In the relativist view, most frequently, politics is singled out among the situational influences. The argumentation of legal advisers as well as judges is seen relative to political realities. The separation of legal and political tasks is considered more a matter of perspective than of material difference. In the mainstream, this relativization is often perceived as a threat to the existence of international law. It is viewed as an attempt to reduce law to politics. As such it is fiercely opposed. Regrettably, the opposition is often too strong, denying incontestable facts and confusing positions.¹⁹

The new stream is not to be understood too simply as a single novel realist school. Even though many strands have their roots in realist pragmatism, the new stream has multiple dimensions.²⁰ However, the critique of political bias of the doctrinal assumptions is often seen as social criticism pointing to a realist program. But to confine it merely to realism would be a drastic reduction of what is actually said. In the focus of new-stream critique is the actual incidence of international law: that is the interpretative argumentation. In the view of some of the most poignant new-stream scholars, argumentation keeps ending up in incompatible positions that can be equally well justified by the constitutive assumptions of the system. The international legal structure forces practitioners into untenable positions where they cannot reach each other. The result is an unending interchange of argumentation strategies which offers no escape to the parties from their respective contentions. This pattern has been described by Martti Koskenniemi as the oscillation between apology and utopia.²¹ The new-stream critique seems to leave the international law practitioner with an exasperating choice between utopian legalism, political apology or an embarrassing self-contradiction in trying to balance the two. Since utopia is u-topos, eternally absent, there is really no choice here at all. Apology and self-contradiction undermine the esteem both of the lawyer and the discipline. That is why the discoveries of the new stream are often perceived as propounding novel realism or even `anything goes'-relativism.

The new stream recognizes political realities and the influence of power-structures. The oscillation pattern presented above brings to mind the game-theoretical analysis in international relations studies: the zero-sum-game or, more particularly, the so-called `tit-for-tat'.²² In tit-for-tat the counter-acting individuals are seen more or less as quasi-mechanical units. When the one goes `tit', the other goes `tat' and so on infinitely. The decisions the players make always seem the only possible choices for them. The game is so structured that the choice is either to counter-strike or to lose. It positively excludes any cooperation. This model has been used to explain the coming into being of the balance of terror between the superpowers during the cold war. The gist of the analogy is to show that structures may have more power over individuals than they realize, with frustrating consequences: if `tit' and `tat' present two extreme choices their balance is at most a dissatisfactory compromise. In the oscillation pattern of international legal argument individuals are similarly forced by the structure. Unable to break out of the game they are caught in alienation, irrelevance or frustration. The political aspect of these problems is again the most frequently mentioned one. The pattern results in alienation from political reality, and irrelevance when faced with major political interests. At this point, the archetypical objectivist interposes to say that international law is equally as relevant as international politics. The relativist says that the relevance depends on the perspective. The first can be criticized for idealism, the second for subjectivism. In each case, whether law and politics are considered equal or intertwined, the speakers fail to show why both are needed and why they coincide every now and then. Therefore, in recent international legal thinking the considerations of the realist challenge have been developed further.

Regarding the role of law in international society, it is important to remember that legal activity is no Herrschafts- sondern eine Dienstform.²³ This seems to support the relativist compromise as a solution. An example of this line of thinking can be construed from the new United Nations Convention on the Law of the Sea (1982).²⁴ Some of its features can be seen as emphasizing the prevalent character of politics over law.²⁵ Though the Convention is primarily a legal instrument, some features can be seen as `giving in' to politics. First, the use of the package-deal method fuelled political bargaining. It also made the treaty very vulnerable to changes in national political climates as was demonstrated by complete turns of direction during the negotiations and deferrals of ratification afterwards. Second, the dispute settlement procedures refer substantial questions to be settled outside any definitive legal framework, between the parties concerned. The equitable principles to be used will be determined by the negotiating diplomats who are not necessarily familiar with legal standards of equity. Instead of legally equitable results, coercive political deals may emerge. If agreement is reached, it is only a solution, very probably not the one and only equitable solution.

This sort of dispute settlement can also be seen as a removal of most significant matters from the legal sphere. It leaves international law the marginal task of deciding on the bureaucratic details of political negotiations. Thus, the new Law of the Sea Convention can easily be seen as a desperate effort to enhance Law's relevance through the alliance with politics - if not outright submission to it. For many of the more traditionalist mainstreamers this scenario gives a reason to go to the barricades. They do not intend to be servants in the house of the masterful power-politics (the Herrschaftsform). Consequently there are attempts to make equity a strong objective legal concept so that it could not be overtaken by politicians ad hoc. There is also the avoidance of discussing politics in legal contexts. The legal field is protected by an intrigue of silence. The new stream on the other hand takes the Dienst more light-heartedly. They do not set out to fight with politics about their respective relevance. They discuss politics and let it try to master the power-struggle. They know that international law may serve a master, but that the master is not power or international politics. They either respect the diplomatic effort of a compromise or, more ambitiously, aim at the demolition of the oscillation between apology and utopia. Though admitting the significance of politics, they search for other ways to avoid alienation and ground the relevance of normative practice. They admit the realistic limits, but go further to look for the openings in the situationality of the particular case or task.

D. Tekhne and Phronesis in the International Legal Situation

The realist challenge questions the relevance of international legal activity. It cannot be answered by referring back to the origins or the goals of international law. The former are not known, the latter are always relative. That is why international lawyers concentrate on the practice. Inquiry into theoretical foundations is often avoided. When it is performed, theory is but a continuation of practice. In the advanced strands of the new stream the starting point is often the actual incidence of international law: the argumentation. The mainstream, for its part, takes over the task of teaching the international normative dogma to be used, i.e. the pragmatics. Thus, both are practical approaches.

Tekhne means human knowledge of a certain skill. Tekhne is a generalization acquired through empirical inquiry. Its possession means to know how to achieve a goal. Tekhne is learned. Knowledge of international norms and their application is a tekhne. Tekhne does not concern the origins or the significance of international law. If one has only a tekhne, one has a means to an end, but no knowledge of the meaning or the contextual significance of the deeds involved. If international legal practice is based on a mere tekhne, the relevance of international law is singularly particular. This seems to be the way of practice. The relevance of international law is decided in individual cases. The lawyer acts as an efficient technician fighting off situational influences as best he can. He acts as a balancer, a neutralizer and a manager. But he does not succeed in exorcizing situational controversies because his work is interpretative. Stabilization is never absolute. He uses appreciation. Of course, the tekhne provides for appreciative skills, too. But the appreciation of an international lawyer is not the same as that of a technician. There are similarities. For instance, the automobile-technician uses appreciation if a desired part is not available; the lawyer to fill gaps of law, the lacunae praeter legem. Nevertheless, the lawyer's task is sometimes more demanding. He uses appreciation to capture a new meaning beyond intra or praeter legem - sometimes to find the most equitable solution, the one corresponding with the object and purpose, the one reflecting the spirit of law, the just one, the one producing the real effet utile. There are no such concerns in the pure technical task of car repair. The crucial difference is that the lawyer is concerned with living reality and the technician with spare parts. The approach to human reality cannot be reduced to the method used with things. As well as being unethical, it is inadequate. It misses the complexity of the target. Thus, the lawyer needs to overstep tekhne.²⁶ He has to concern himself with the wider meaning-context and look beyond the dogma of tekhne, even principles of discretion.

Phronesis is also knowledge of a skill. In contrast to tekhne, it is not learned but intuitive. Phronesis takes into account the entirety of the situation whereas tekhne confines itself to a part. Phronesis is holistic, tekhne particular. Tekhne can erode to irrelevancy, if its constituting assumptions become inadequate, or swell to totalization if it forces a balance upon conflicts non-resolvable on its grounding assumptions. Phronesis is not constituted on assumptions. Its sole ground is in the momentary incidence of the worldly phenomena and their relations. Both tekhne and phronesis spring from practical experience. But tekhne is frozen to a dogma and phronesis not. Tekhne has a pragmatic goal, phronesis does not. Tekhne is closed, phronesis open knowledge. Tekhne is relative to the practice from which it is derived. At the same time, it makes everything relative within its confines. Phronesis exists only in practice and is not relativizing. Phronesis shows the significance of phenomena, and its own value depends on that function in each case. Phronesis is an ability to be in dialogue with phenomena, but not to control them. Phronesis is dialogic as opposed to dogmatic knowledge. It is knowing of oneself and of the other simultaneously. There is no clear distinction between the subject and object, between the knowing and the known in phronesis.

In international law both tekhne and phronesis are needed. Tekhne comprises the learning of the discipline. Phronesis provides a way out of the dilemma of objectivism and subjectivism. In practice the use of intuition is frequent, though not always recognized. Using a metaphor, tekhne is like the skeleton and phronesis the flesh of the organism of international law. International law theory also has its tekhne and its potential phronesis. Tekhne deals with how to research, phronesis with how to research in a relevant manner. There might be a set of rules for the former purpose, but none for the latter, at least in the traditional sense. The recent thinking in international law scholarship has produced quite remarkable pieces of work. Some traces of phronesis can be detected. There is an attempt to break out of the artificial balancing structure, encounter the world, bear the responsibility and account for the consequences of one's theorizing. The realist challenge is met, outside influences welcomed, questions not suppressed. However, in the eyes of some of the mainstreamers the newstreamers are trashing the system. The meeting of the realist challenge is seen as reduction to politics, the application of philosophical methods - such as deconstruction - as nihilistic, the questioning of foundations as radical scepticism concerning the whole of international law. The mainstream - both traditional and the liberal - would satisfy itself with an international law tekhne. Unfortunately, a closed system never quite functions adequately in situational interconnectedness. This is the realisation motivating the new stream inquiries into alternative approaches. Their various features can be assessed in this light.

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1 Harvard Law School.

2 On the inseparable character of the semantic meaning and the significance in interpretation generally, see H.G. Gadamer, Wahrheit und Methode (1965).

3 The words `meaning-content' and `right meaning-content' are used here without a reference to a specific school of thought. They should be read without prejudice to any meaning-formation for they refer only to the generally understood linguistic meaning.

4 The mind is not made of isolated compartments, and even if it were and a hypothetical meaning could be known without considerations of its significance, it could never be applied without those considerations entering into play. Thus, the separation of meaning and significance is useless and illusory.

5 It should be obvious that the concept of creation is not used in a divine sense, i.e. to indicate that a meaning is created out of nothing. Here, `creativity' refers to an ability to recognize certain qualities (e.g. semantic `content') detectable in the interpretative relationship with the interpreted object (e.g. a legal norm), and to organize them with other influencing factors (the significance) into a conceivable meaning. In other words, there is more `gathering' than creation involved.

6 See, e.g., A. Aarnio, Laintulkinnan teoria (1988).

7 See M. Koskenniemi, From Apology to Utopia (1989).

8 By modified legal objectivism I mean an underlying conviction of the mainstream of international law scholarship. This may seem a rather overstated argument, for it includes also those who systematically deny objectivism but implicitly subscribe to it by trying to set outside standards to subjective and relativist features of international law - though generally admitting their presence.

9 The concept of new stream is used here to refer to the recent trends in international law scholarship, motivated, for instance, by the Critical Legal Studies movement and developments in other fields of science. For introductions, see A. Carty, `Introduction', Post-modern Law (1990); Kennedy, `Theses about International Law Discourse', 23 GYIL (1980) 353; Purvis, `Critical Legal Studies', 32 Harv. Int'l L.J. (1991).

10 See e.g., Purvis who doubts the ability of critical knowledge to `sustain itself as an epistemology', thus, leaving `a stark choice between objectivism and nihilism'. Purvis, supra note 8, at 121 (footnote). This is the conclusion and the focus of opposition by many mainstreamers as well.

11 On its philosophical prerequisites, see O. Korhonen, Kansainvälisoikeudellinen tulkinta ja dialogisuus (Philosophical Inquiries at the University of Tampere) (1995).

12 `Situation' is the core concept, `situationality' its manifestation.

13 See Koskenniemi, From Apology to Utopia, supra note 6, at 23.

14 On the reification problem, see Boyle, `Ideals and Things', 26 Harv. Int'l L.J. (1985) 327: International legal writings filled with reified concepts seem to present a `fateful and absurd contrast between the infinite quality of human aspiration and the unrelenting indifference of the world' reminiscent of the French chosists' world-view.

15 This description runs along the lines of existential analysis or existential phenomenology. See generally, L. Rauhala, Eksistentiaalinen fenomenologia hermeneuttisen tieteenfilosofian menetelmänä (1993).

16 The description `healthy' is used by Koskenniemi, `The Politics of International Law', EJIL (1990) 31: He says that the `turn to equity ... is ... a healthy admission of something that is anyway there', i.e. contextual influences and, in particular, political choice.

17 Since Kant we have known that the world is not represented in our consciousness an sich. There is scarcely a scientist who would deny this epistemic fact. Nevertheless, in some inexplicable way, the law has always been believed to be an exception thence constituting the unique worldly phenomenon of which objective knowledge is not only possible but in relation to which the search for objective knowledge is the only acceptable demeanour. This illusion is currently being transposed to equity. On an objective view of equity see, e.g., K. Ipsen, Völkerrecht (1990) 218-20. Also, as to the approach of the International Court, Thirlway, `The Law and Procedure (Part 5)', LXIV BYbIL (1993) 46-54.

18 For a discussion on this `naturalistic' fallacy in international law, see Koskenniemi, From Apology to Utopia, supra note 6, at 262 and id., Theory (1991); Purvis, supra note 8, at 100, 114. Also, Carty, Post-modern Law, supra note 8, at 10.

19 I am not saying that the realist challenge is overestimated in certain traditions of the mainstream. On the contrary. However, it cannot be defeated once and for all relying on a superior or anterior authority. It has to be encountered in every case anew. It is a matter of constant reappreciation.

20 The new stream does not emphasize only the political influences in international normative practice. The influences of language, morals, personal life etc. are also quite clearly indicated.

21 Koskenniemi, From Apology to Utopia, supra note 6.

22 See, e.g., K. Holsti, International Politics (1983). For a general introduction, see E. Rasmusen, Games and Information (1989) 123-29.

23 See Gadamer on judicial interpretation. In his view, it provides an example for all interpretation in this respect. Gadamer supra note 1, at 293-5.

24 On discussion of this treaty see, for instance, P. Allott, Eunomia (1990) xiii, 356-64. Koskenniemi, From Apology to Utopia, supra note 6, at 439-43; id., `The Politics of International Law', supra note 15, at 28; id., Theory , supra note 17, at 32.

25 Here should be added `... and vice versa'. The features mentioned can also be seen as strengthening the relevance of law in political matters. Here, however, I only discuss the realist challenge and the risk of reduction of international law to politics.

26 On the need to overstep tekhne in the function of a judge, see Gadamer supra note 1, at 301.

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