The Fate of Public International Law: Between Technique and Politics
| Author | Martti Koskenniemi |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00624.x |
| Date | 01 January 2007 |
| Published date | 01 January 2007 |
THE
MODERN LAW REVIEW
Volume 70 January 2007 No 1
TheFateofPublicInternationalLaw:
BetweenTechnique and Politics
Martti Koskenniemi
n
Public international law hovers between cosmopolitan ethos and technical specialization.
Recently, it has di¡erentiated into functional regimes such as ‘trade law’,‘human rights law’,
‘environmental law’ and so on that seek to ‘manage’ global problems e⁄cie ntly and empower
new interests and forms of expertise. Neither of the principal legal responses to regime-forma-
tion ^ constitutionalism and pluralism ^ is adequate, however.The emergence of regimes resem-
bles the rise of nation States in the late nineteenth century. But if nations are ‘imagined
communities’,so are regimes. Reducing international lawto a mechanism to advance functional
objectivesis vulnerableto the criticisms raised against think ing about it as an i nstrument for state
policy: neither regimes nor stateshave a ¢xed nature or self-evident objectives.They are the stor-
ies we tell about them.The task for international lawyersis not to learn new managerialvocabul-
aries but to use the language of i nternational lawto articulate the politics of critical universalism.
THE PROJECT OF MODERN INTERNATIONAL LAW
Public international law is rules and institutions but it is also a tradition and a
political project. If youview it only as rules or institutions, you will be struck by
howdi¡erent it looks from the rules and institutions you know from the domes-
tic context. Of course, there wasalways the suspicion that what international law-
yers do is not like domestic attorneys or judges reading dossiers, interviewing
clients or handing out decisions. Compared with the sophisticated techniques of
domestic law, international law seemedprimitive, abstract and above all political,
too political. It was against this attitude that international lawyers have defended
their project by seeking to show that, despite appearances,it is not really so di¡er-
ent. States could, after all, be conceived as legal subjects in a system where their
territorial possessions were like property, their treaties like contracts and their
diplomacy like the administration of a legal system.
1
That strategy was quite
n
Academy Professor (Academy of Finland),Professor of International Law (University of Helsinki),
Hauser Global Professor of Law, NewYork University School of Law, former member(2002^20 06),
International Law Commission (United Nations).The text of the 35th Chorley Lecture, delivered in
London on 7 June 2006.
1 Thi sway of thinking about international law emerged together with the professionalisation of
the ¢eld and its integration into the law school curriculum in the late nineteenth century. One
powerfultext that reads treaty lawas no di¡erent from domesticconstitutional law is G. Jellinek,
r2007 The Author.Journal Compilation r2007 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(1)MLR 1^30
successful. However, I would like to suggest that the problems faced by public
international law today ^ marginalization, lack of normative force, a sense that
the diplomatic mores that stand atits heart are part of the world’sproblems ^ result
in large part from that strategy, the e¡ort of becoming technical.
The strategy, I may report, was developed withparticular force here at the LSE
in the course of the ¢rst meetings between the lecturer, as he then was, Arnold
Duncan McNair and the immigrant doctoral student from Galicia and Vienna,
Hersch Lauterpacht in 1923 and 1924.
2
The publication of the International Law
Reports from 1929 onwards that resulted from those meetings helped one to
think of inter-State arbitration and the work of the recently established Perma-
nent Court of International Justice as ‘cases’ and precedents.The setting up of the
BritishYear Bookof InternationalLaw created a forumwhere those cases couldbe
commentedon like domestic cases in domestic law reviews. McNair’s manual of
treaty law o¡ered a methodology for reading treaties like domestic statutes while
Lauterpacht projected the League Covenant as ‘Higher Law’, comparable to a
domestic constitution.
3
His editorial work in the 1930’s and thereafter for Oppen-
heim’s InternationalLaw assured him control of the contents of the most widely used
legal manual in the world’s foreign o⁄ces. Andhis magnum opus from1933 ^ The
Function of Law in the International Community ^ summarised the view of interna-
tional law as a complete, common law type of legal system with a single right
answer to every problem.
4
Some 60 to80 years ago,a small group of cosmopolitan-mindedlawyers trans-
lated the diplomacy of States into the administration of legal rules and institu-
tions.This was a progressive, liberal, project, conceived originally in nineteenth
century Germany from where immigrants such as Lassa Oppenheim or Hersch
Lauterpacht brought it into the English-speaking world.
5
It combined a political
realist readingof statehood with a stronganti-sovereignty ethos through a histor-
ical readingof modernity, a readingonce forcefullyexpressed in Immanuel Kant’s
Die rechtliche Naturder Staatenvertra
ºge.Ein Beitrag zurjuristischen Construction desV˛lkerrechts(Vienna:
H˛lder,1880). The‘dualist’ approachof u nderstanding international and domestic lawas separate
legal systems and introducing the former in legal education and practice through its incorpora-
tion into domestic law was instrumental to the process of professionalization.The publication of
rati¢ed treaties in domestic code books opened the way to their interpretation and application
analogously to domesticlaw.
2 I have told this story in ‘HerschLauterpacht 1897^1960’in J. Beatson and R. Zimmermann, Jurists
Uprooted.German-SpeakingEmigre
ŁLawyers inTwentieth-Century Britain(Oxford: Oxford University
Press, 2004) 601,613^614.
3 A. D. McNair,TheLaw ofTreaties (Oxford: Clarendon,1938); H. Lauterpacht,‘TheCovenant as the
Higher Law’ in International Law. Being the Collected Papers of Sir Hersch Lauterpacht vol 4 (Cam-
bridge: CambridgeUniversity Press,1978) 326^336.
4 H. Lauterpacht,The Functionof Law in the International Community(Oxford: Clarendon Press,1933).
5 The predominanceof German legal thoughti n the developmentof international law in the nine-
teenth century is striking. One of the (insu⁄ciently examined) reasons forth is maybe suspected
to lie in the ease with which the tech niques developedby German public lawyers to deal with the
fragmented structures of the Old Empire could be applied to problems of European organization
after the Napoleonicwars. After all, many of the classic naturalists elaboratedimperial law under
the label of jurisprudentia universalis.At least, this is what I suggest in‘Georg Friedrich vonMarte ns
(1756^1821) and the Origins of Modern International Law’ NYU Institute of International Law
and Justice Working Papers 1/2006, available at http://www.i ilj.org/2006_1_HT_Koskenniemi.htm
(last visited 5 October 2006).
The Fate of Public International Law
2r2007 The Author.Journal Compilation r2007 The Modern LawReview Limited.
(2007) 70(1)MLR 1^30
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