Déjà vu in International Law

AuthorRobert Cryer
DOIhttp://doi.org/10.1111/1468-2230.00417
Publication Date01 Nov 2002
REVIEW ARTICLE
De´ja` vu in International Law
Robert Cryer*
Martti Koskenniemi,The Gentle Civilizer of Nations: The Rise and Fall of
International Law 1870–1960, Cambridge: Cambridge University Press, 2001,
xiii + 569 pp, hb £65.00.
Since the publication of his first book,1Martti Koskenniemi has established
himself as one of the pre-eminent international legal theorists. Most traditional
international lawyers, who tend to disclaim theory,2appear to like his work.
Perhaps this is because Koskenniemi has always eschewed the most egregious
excesses of critical scholarship and shown appropriate regard for international law
doctrine. Koskenniemi was a member of the Finnish Foreign Ministry for nearly 20
years and led its international law division. His considerable experience of
providing legal services to his country at the UN left him pleasantly surprised at
the part international law had to play in difficult circumstances. When issues
became more difficult, and appeared to move into the realm of ‘high politics’, the
law developed into the voice of reason, or at least the language of debate.3
In The Gentle Civilizer of Nations, Koskenniemi moves his focus to the history
of international law. He tells us a story of the ‘rise and fall of international law
1870–1960’, by the end of which we are told that ‘there has been stupidity,
unwarranted ambition, careerism, and much hypocrisy. But there has also been
some political wisdom, and a little courage, times when faith was lost, but also
stubborn refusal to admit defeat’ (p 503)
4
During the past two decades, much of
the impressive work produced has been by scholars at least related to the critical
legal movement.
5
Koskenniemi’s book could be seen as an addition to this
ßThe Modern Law Review Limited 2002 (MLR 65:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 931
* School of Law, University of Nottingham. Thanks to Matthew Happold, Robert McCorquodale,
Thomas Poole, Karen Scott, Nigel White and Christian Witting for discussions and comments on an earlier
draft.
1 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki:
Finnish Lawyers’ Publishing Company, 1989) [hereinafter from Apology to Utopia], xvii–xviii.
2 I. Brownlie, The Rule of Law in International Affairs: International Law at the 50th Anniversary of
the United Nations (The Hague: Martinus Nijhoff, 1998), 11.
3 See M. Koskenniemi, ‘The Place of Law in Collective Security’ (1996) 17 Michigan Journal of
International Law 455.
4 All page references in the text are to the book under review.
5 See, for example, D. Kennedy, ‘Primitive International Scholarship’ (1986) 27 Harvard International
Law Journal. 1; D. Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’
(1997) 17 Quinnipiac Law Review 99; A. Anghie, ‘Francisco de Vitoria and the Colonial Origins of
International Law’ (1996) 5 Social and Legal Studies 321; A. Anghie, ‘Finding the Peripheries:
Sovereignty and Colonialism in Nineteenth-Century International Law’ (1999) 40 Harvard
International Law Journal 1; [hereinafter Peripheries]; K. Knop, Diversity and Self-Determination
in International Law (Cambridge: CUP, 2002).
canon,
6
but it is more than this. In part, the book is a response to criticisms of
From Apology to Utopia. That book had been criticised as having failed to show
why international lawyers choose or have chosen certain positions if international
legal discourse was as indeterminate as he claimed (p 1). Still, his ambitions are
higher. Koskenniemi’s road onwards, or backwards, is a surprising one:
formalism. For a writer who has been critical of rule-based reasoning in the
past,
7
this cannot be a smooth road. So how does Koskenniemi travel it?
International law by gaslight
To begin, Koskenniemi takes us back to the second half of the 19th century. It is
here that Koskenniemi identifies the beginnings of a new professional self-
awareness, originating in European liberalism, that formed the basis of modern
international law to a greater extent than the writings of Grotius or the Peace of
Westphalia (pp 3–4). Koskenniemi is quite specific about the beginnings of this
intellectual sensibility. It is the manifesto written by Gustave Rolin-Jacquemyns to
inaugurate the Revue de droit international et de le
´gislation compare
´ein 1868 (p
14). As Koskenniemi notes, the journal itself was intended as a forum for liberal-
reformist ideas and the manifesto was ‘a shopping list of liberal reform’ (p 15). The
manifesto espoused l’esprit d’internationalite
´, which recognised the existence of
common principles and the ‘superior unity of the great human society’ (p 13). The
esprit d’internationalite
´had led to great steps forward in the sciences, and Rolin
suggested that the law follow suit. So a new science was postulated, the ‘science of
the conscience of humanity’ (p 16). This ‘science’ was based upon the sober
reflections of the ‘civilised conscience’ and was meant to form public opinion,
which, in turn, was the basis of international law (pp 15–16). The result was that
international lawyers then took the place of an absent international legislature by
becoming humanity’s conscience: ‘[p]ublic opinion crystallised in a legal
scholarship that proceeded by way of introspection’ (p 16).8
The journal reflected the liberal outlook of its founders, T.M.C. Asser and Rolin.
The Revue promoted a middle-of-the-road Victorian liberalism: it was democratic,
but also concerned about what may be done by ‘the masses’ and, in the final
analysis bourgeois. The founders were no friends of kings, or of socialism (pp 18–
19). Their work sought to break with previous scholarship, which in the first half of
the 19th century had been dominated by digests of diplomatic practice. After the
cataclysmic Franco-Prussian war of 1870–1871, the founders of the Revue created
the Institut de Droit International in 1873. The Institut embodied their concept of
the ‘legal conscience/consciousness of the civilized world’ (p 41). Johann
Bluntschli-a liberal (in the sense of the time), who had studied under Savigny
and developed the idea of the lawyer as author of dynamic law that reflected
modern reality-drafted the Institut’s founding statute (pp 42–47).
6 Koskenniemi is uncomfortable with being considered a representative of ‘critical’ scholarship, M.
Koskenneimi, ‘Letter to the Editors of the Symposium’ (1999) 93 American Journal of International
Law 351, 351–352. Nonetheless, The Gentle Civilizer’s dust-jacket promises it ‘provides a unique
reflection on the possibility of critical international law today.’
7 M. Koskenniemi, ‘The Pull of the Mainstream’ (1990) 88 Michigan Law Review 1946.
8 There are traces of this left in Art 38(1)(d) of the Statute of the International Court of Justice, which
includes the ‘teachings of the most highly qualified publicists’ as a subsidiary means of determining
international law.
The Modern Law Review [Vol. 65
932 ßThe Modern Law Review Limited 2002

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