martti koskenniemi and the spirit of the beehive in international law

Global Jurist

TopicsVolume 10, Issue 2 2010 Article 4

Martti Koskenniemi and the Spirit of theBeehive in International Law

Ignacio de la Rasilla del Moral∗

∗Watson Institute for International Studies, Brown University, [email protected]

Recommended CitationIgnacio de la Rasilla del Moral (2010) “Martti Koskenniemi and the Spirit of the Beehive in Inter-national Law,” Global Jurist: Vol. 10: Iss. 2 (Topics), Article 4.Available at: http://www.bepress.com/gj/vol10/iss2/art4

Copyright c©2010 The Berkeley Electronic Press. All rights reserved.

Martti Koskenniemi and the Spirit of theBeehive in International Law∗

Ignacio de la Rasilla del Moral

Abstract

The key-importance for the understanding of all his successive work that Koskenniemi as-cribes to his 1989 seminal inquiry into the structure of the international legal argument justifiesthat this article opens with an explanation of the main theses of Koskenniemi’s pathbreaking FromApology to Utopia at the time of its re-issue with a new Epilogue. Its doctrinal emplacementas the book which “managed to convey to a wide audience the challenging, but hitherto rathermysterious message of CLS for international law” invites an inquiry into the internal dynamics ofKoskenniemi’s disciplinary renovating impact as part of a critical international legal movement,the precedents and main characteristics of which, must be searched in the work of a number ofinternational legal scholars in the 80s’. In further examining the author’s own deep introspec-tive journey into the archetypes that nurture the international lawyer’s self-sustaining intellectualmythology, it is argued that Koskenniemi’s work champions a profoundly ethical-oriented awak-ening call addressed to his contemporary doctrinal counterparts. No discontinuity or rupture existsin Koskenniemi’s opus, no renunciation and less oblivion of the baggage of his 90s’ insights, butrather an evolving transference and application of them in connection to his so-doctrinally vaunted“culture of formalism”. In examining the latter by reference to a number of Koskenniemi’s essays,this appears to be both a consistent and realistically emancipatory perspective of international lawwhen this is seen as a historically contingent ideological framework. An application of Kosken-niemi’s interpretative lenses to the doctrinal divide brought about by the aftermath of 9/11 andthe Iraq war and an examination of the current strengthening of an international constitutional-ist debate in international legal doctrine gives way an assessment of the relationship between thecritical Newstream’s epistemological and normative challenges to traditional international law andKoskenniemi’s defence of a philosophically inclusive emancipatory tool against the “managerial

∗Visiting Fellow in Global Governance, Law and Social Thought at the Watson Institute for Inter-national Studies, Brown University. Research Associate, Philosophy of Law Department, SevilleUniversity Pablo de Olavide. Visiting Researcher, Institute for Global Law and Policy, HarvardLaw School & Fellow Real Colegio Complutense in Harvard. Research Associate, Centre d’etudeet de recherche en droit international (Cerdin), University of Paris 1, Pantheon-Sorbonne. Ph.D.candidate in International Law, The Graduate Institute of International and Development Studies,Geneva. Very special thanks go to Professor Emmanuelle Jouannet for her faith and scholarly sup-port throughout the process of completion of the present work and to Professor David Kennedyfor his immense scholarly patience. The usual caveat applies.

mindset” and the related risk of de-formalization brought about by the current evolution of inter-national law towards IR grounded vocabularies.

KEYWORDS: the politics of international law, Koskenniemi, new approaches to internationallaw, culture of formalism

“Y la vida es misterio, la luz ciega y la verdad inaccesible asombra; la adusta perfección jamás se entrega, y el secreto ideal duerme en la sombra.

Por eso ser sincero es ser potente; de desnuda que está, brilla la estrella; el agua dice el alma de la fuente en la voz de cristal que fluye de ella.”

Rubén Darío (1867-1916)

1. Introduction Celebrated by a new breath of reviews1 and even a specific symposium2, its re-issuing with a new Epilogue in 2005 confirmed From Apology to Utopia3 as the latest Excalibur-like treatise in international law and made its author to begin to 1 Akbar Rasulov, Book Review, 16 Law and Politics Book Review 583 (2006) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT, REISSUE WITH A NEW EPILOGUE (2005). Björn Elberling, Book Review, German Yearbook of International Law 712 (2006) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT, REISSUE WITH A NEW EPILOGUE (2005) Jean D’Aspremont, International Law as a Grammar: Koskenniemi’s From Apology to Utopia Revisited, Global Law Books 1 (2006) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT, REISSUE WITH A NEW EPILOGUE (2005). Jean D’Aspremont, Uniting Pragmatism and Theory in International Legal Scholarship: Koskenniemi’s From Apology to Utopia revisited, 19.1 Revue québécoise de droit international 353 (2007) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT, REISSUE A NEW EPILOGUE (2005). Ignacio de la Rasilla del Moral, Recensión bibliográfica, 12 Revista Electrónica de Estudios Internacionales 1 (2006) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT, REISSUE WITH A NEW EPILOGUE (2005). 2 Morag Goodwin and Alexandra Kemmerer, Editorial: The same performance, and so different. Marking the re-publication of From Apology to Utopia, 7:12 German Law Journal 977 (2006). David Kennedy, The last treatise: project and person. (Reflections on Martti Koskenniemi’s From Apology to Utopia), 7:12 German Law Journal 982 (2006). Anne Orford, A Journal of the Voyage from Apology to Utopia, 7:12 German Law Journal 993 (2006). Christoph Möllers, It’s about Legal Practice, Stupid!, 12:7 German Law Journal 1011 (2006). Jochen von Bernstorff, Sisyphus was an international lawyer. On Martti Koskenniemi’s ‘From Apology to Utopia’ and the place of law in international politics, 7:12 German Law Journal 1016 (2006). Mario Prost, Born Again Lawyer, FATU as An Antidote to the ‘Positivist Blues’, 7:12 German Law Journal 1038 (2006). Jason Beckett, Rebel without a Cause? Martti Koskenniemi and the Critical Legal Project, 7:12 German Law Journal 1045 (2006). Balakrishnan Rajagopal, Martti Koskenniemi’s From Apology to Utopia: a reflection, 7:12 German Law Journal 1095 (2006). Florian Hoffmann, An Epilogue on an Epilogue, 7:12 German Law Journal 1096 (2006). Martti Koskenniemi, A Response, 7:12 German Law Journal 1103 (2006). 3 MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT, REISSUE WITH A NEW EPILOGUE (2005) (hereinafter alternatively From Apology to Utopia or FATU)

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de la Rasilla del Moral: The Spirit of the Beehive in International Law

Published by The Berkeley Electronic Press, 2010

dangerously resemble a contemporary walking symbol of international law’s Delphi Oracle. This new body of companion bibliographical literature added itself to the already extensive number of scholarly commentaries that had hailed the book’s original publication4 as well as to those doctrinal reactions that had been regularly triggered by Koskenniemi’s other book-length authored5 - or edited -

4 Iain Scobbie, Towards the Elimination of International Law: Some Radical Scepticism About Sceptical Radicalism, 61 British Yearkbook of International Law 339 (1990). David Kennedy, Review, 31 Harvard International Law Journal 385 (1990) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA.THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT (1989). Anthony Carty, Liberalism’s Dangerous Supplements: Medieval Ghosts of International Law 13 Michigan Journal of International Law 161 (1991-1992) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT (1989). Nicholas Onuf, Review, 84:3 The American Journal of International Law 771 (1990) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT (1989). Ulrich Fastenrath, Review, 31 Archiv des Völkerrechts, 184 (1993) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT (1989). Lea Brilmayer, Review, 85:2 The American Political Science Review 687 (1991) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT (1989). Malgosia Fitzmaurice, Review, 1 Finnish Yearbook of International Law (1990) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT (1989) David J. Bederman, Review, 23 New York Journal of International Law and Politics 225 (1990) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT (1989) Vaugham Lowe, Review, 17 Journal of Law and Society 386 (1990) (reviewing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL ARGUMENT (1989) 5 MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2001) George Galindo Bandeira, Martti Koskenniemi and the Historiographical Turn in International Law, 16 European Journal of International Law 539 (2005). Robert Cryer, Déjà vu in International Law 65 , Modern Law Review 931 (2002), Penelope Simons, Review, 8 Journal of the History of International Law 1087 (2006), (reviewing MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2001) Guénael Mettraux, 3:1 International Criminal Law Review 79 (2003) (reviewing MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2002). Marius Emberland, Review, 52 International and Comparative Law Quarterly 272 (2003) (reviewing MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2001). Rein Müllerson, Review, 13 European Journal of International Law 727 (2002) (reviewing MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2002). A..W. Brian Simpson, Review, 96:4 The American Journal of International Law, 995 (2002) (reviewing MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2002). Ingo Hueck, Review, 21 German History 425 (2003) (reviewing MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2002). Iain

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Global Jurist, Vol. 10 [2010], Iss. 2 (Topics), Art. 4

http://www.bepress.com/gj/vol10/iss2/art4

works6 and erudite articles since the early days of the post-Cold War era.7 The panoply of embedded scholarly commentaries of his theses,8 the homage book already offered to him,9 the series of his works translated into languages other

Clark, Review, 23 The Australian Yearbook of International Law 203 (2004 Review, British Yearbook of International Law 370 (2003) (reviewing MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2002). Michael Stolleis, Review, 73 Nordic Journal of International Law 265 (2004) ) (reviewing MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2002). Douglas M. Johnston, Review, International Journal of Legal Information 538 (2004) (reviewing MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2002). Michael Rask Madsen, Review, 47:1 Acta Sociologica, 105 (2004) (reviewing MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2002). Ignacio de la Rasilla del Moral Recensión bibliográfica, 16 Revista Electrónica de Estudios Internacionales 1 (2008) (reviewing MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2002) 6 See e.g. MARTTI KOSKENNIEMI (ED.) INTERNATIONAL LAW (1991) Jan Klabbers, Review, International Journal of Group Rights 159 (1993-1994) (reviewing MARTTI KOSKENNIEMI (ED.) INTERNATIONAL LAW (1992) 7 See, e.g. Martti Koskenniemi International Law in Europe: Between Tradition and Renewal 16 European Journal of International Law 113 (2005) with comments by: Pierre Marie Dupuy, Some Reflections on Contemporary International Law and the Appeal of Universal Values: A Response to Martti Koskenniemi 16 European Journal of International Law 131 (2005), Oliver Gerstenberg, What International Law Should (Not) Become: A Comment on Koskenniemi 16 European Journal of International Law 125 (2005), and Gerald L. Neuman, Talking to Ourselves 16 European Journal of International Law 139 (2005). More recently see the responses triggered by Martti Koskenniemi The Politics of International Law – 20 Years Later 20 European Journal of International Law 1 (2009) 8 See for an array of sympathetic representative accounts in the context of the contribution of Koskenniemi’s work to the critical approaches to international law, although far from exhaustively: Anthony Carty, Critical International Law: Recent Trends in the Theory of International Law, 2 European Journal of International Law 1 (1991), Nigel Purvis, Critical Legal Studies in Public International Law, 32 Harvard International Law Journal 81 (1991) Andreas L. Paulus, International Law After Postmodernism: Towards Renewal or Decline of International Law?, 14 Leiden Journal of International Law 727 (2001), Jason A. Beckett, Countering Uncertainty and Ending Up/Down Arguments: Prolegomena to a Response to NAIL 16 European Journal of International Law 213-238 (2005), Deborah Cass, Navigating the Newstream: Recent Critical Legal Scholarship in International Law 65 Nordic Journal of International Law 341(1996), Outi Korhonen, New International Law: Silence, Defence or Deliverance 7 European Journal of International Law 1 (1996). CHINA MIEVILLE, BETWEEN EQUAL RIGHTS: A MARXIST THEORY OF INTERNATIONAL LAW (2005). 9 J.PETMAN & J.KLABBERS (EDS) NORDIC COSMOPOLITANISM: ESSAYS IN INTERNATIONAL LAW FOR MARTTI KOSKENNIEMI (2003). Daniel Warner, Review, 73 Nordic Journal of International Law 387 (2004) (reviewing J.PETMAN & J.KLABBERS(EDS) NORDIC COSMOPOLITANISM: ESSAYS IN INTERNATIONAL LAW FOR MARTTI KOSKENNIEMI (2003).

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than the contemporaneous lingua franca10 and the myriad of footnotes referring to his work that can be transversally found in the literature sum up to make almost redundant to note that Koskenniemi belongs within the rare category of international lawyers whose work might be quantitatively approached as a minor industry for international legal commentary. The juxtaposition of the quantitative and the celebratory qualitative perspectives on the author’s opus would risk, however, with seeing its own value and disciplinary impact diminished, if it was to be severed from the works of Koskenniemi’s critical fellow travelers. The lack of stress on the author’s influence on an already overlapping number of generations of critical-oriented scholars to whom the doctrinal shaping of international law during the last decade of the 20th and the first one of the 21st century owns volumes, and the absence of analysis of the reversed influence of their work on Koskenniemi, constitutes the single main methodological criticism that may be addressed to the recent, and deeply philosophical critical introduction11 to a selection of Koskenniemi’s legal essays translated for the first time into Molière’s mother tongue. The influence of Koskenniemi’s contribution to contemporary international law remains inextricably linked to the on-going evolution of a corpus of critical international legal scholarship that stands for a broad, heterogeneous and multifaceted global critically inspired movement that has been gaining momentum since the mid 80’s. Such an increasing body of critical legal scholarship has received a number of generically descriptive doctrinal labels; among them, Newstream,12 or the New Approaches to International Law13 (NAIL)

10 MARTTI KOSKENNIEMI, EL DISCRETO CIVILIZADOR DE LAS NACIONES: AUGE Y CAIDA DEL DERECHO INTERNACIONAL 1870-1960 (2005) For a review in Spanish language, Ignacio de la Rasilla del Moral Recensión bibliográfica, 16 Revista Electrónica de Estudios Internacionales 1 (2008) (reviewing EL DISCRETO CIVILIZADOR DE LAS NACIONES: AUGE Y CAIDA DEL DERECHO INTERNACIONAL 1870-1960 (2005). MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL (2007) For reviews of this work, see so far Yves Daudet, Review, Annuaire français de droit international 868 (2006) (reviewing MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL (2007) Horatia Muir Watt, Review, Révue critique de droit international privé 699 (2007) (reviewing MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL (2007) Anikó Rais, Review, 5 Milkosc Journal of International Law 71 (2008) (reviewing MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL (2007) Rémi Bachand, La critique en droit international : Réflexions autour des livres de Koskenniemi, Anghie et Miéville, 19.2 Revue québecoise de droit international 1 (2006). 11 Emmanuelle Jouannet, Présentation critique, in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL (2007) 12 See for the seminal work David Kennedy, A New Stream of International Legal Scholarship 7 Wisconsin International Law Journal, 1 (1988); see Cass, supra note 8. See in Spanish Ignacio Forcada Barona, El concepto de Derecho Internacional Público en el umbral del siglo XXI: la “Nueva Corriente” 9 Anuario Argentino de Derecho internacional 181 (1999).

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have benefited from a great doctrinal reception. Yet, it is also possible to identify other denominations like the rhetoric school,14 the anti-foundational critique,15 the post-modernist turn,16 the international legal branch of Critical Legal Studies (CLS),17 the non instrumental theories of international law”,18 the critical approaches to international law19 or, merely, the “crits”’ work - to interchangeably refer to the critical scholars’ input in international law. Such an on-going academic effort has resulted in international critical legal doctrine having deeply planted the seeds of its own tradition in the international legal consciousness during the late 20th and early 21st centuries. E.Jouannet’s critical introduction, having opted for excelling in its portrayal of Koskenniemi’s idiosyncrasy as a single author to the French-native speaking branch of the invisible college, skipped to address what may have become a credible first step in the doctrinal retrospective retracing of a parallelism between the progress of 13See David Kennedy and Christopher Tennant, New Approaches to International Law: A Bibliography 35 Harvard International Law Journal, 417 (1994). David Kennedy, The Disciplines of International Law and Policy 12 Leiden Journal of International Law, 9 (1999 David Kennedy, When Renewal Repeats: Thinking Against the Box 32 New York Journal of International Law and Politics 2, 335 (2000) David Kennedy, My Talk at the ASIL: What is New Thinking in International Law? Proceedings of the 94th Annual Meeting of the American Society of International Law, 104 (2000). See, e.g. also, Thomas Skouteris and Outi Korhonen, Under Rhodes’s Eyes: The “Old” and the “New” International Law at Looking Distance, 11 Leiden Journal of International Law 429 (1998), which, notably enough, includes a selective bibliographyof Newstream writing; see also: Thomas Skouteris FIN de NAIL: New Approaches to International Law and its Impact on Contemporary International Legal Scholarship, 10 Leiden Journal of International Law 415 (1997) 14 Gerry Simpson Imagined Consent: Democratic Liberalism in International Legal Theory’, 15 Australian Yearbook of International Law 103 (1994) at 109. 15 Paulus, International Law After Post-Modernism, supra note 8. 16 Carty, Critical International Law, supra note 8. 17Bruno Simma, Editorial 3 European Journal of International Law, 1, 2, (1992). Jean Pierre-Cot, Tableau de la pensée juridique américaine 3 Révue Générale de droit international public, 587-589 (2006). For a response to that qualification, See: Martti Koskenniemi, Le style comme méthode : lettre aux organisateurs du symposium in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL 391 (1997) Originally published as Style as Method : A Letter to the Editor’s of the Symposium, 93 American Journal of International Law 351 (1999) Also published as Martti Koskenniemi, Style as Method : Letter to the Editors of the Symposium’, in THE METHODS OF INTERNATIONAL LAW 109 (Steven R. Ratner and Anne-Marie Slaughter, eds., 2004) 18 Iain Scobbie, Wicked Heresies or Legitimate Perspectives? Theory and International Law, in INTERNATIONAL LAW 83-112 at 102 (Malcolm Evans, dir. 2nd, 2006) See in the same work analysing the notion of “intrumentalism” in international law Martti Koskenniemi, What is International Law For?, in INTERNATIONAL LAW 89-116 (Malcolm Evans, dir., 1st ed. 2003). This work is recollected in Martti Koskenniemi, A quoi sert le droit international? in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL 321-356 (2007). 19 Outi Korhonen, New International law: Silence, Defence of Deliverance? 7 European Journal of International Law 1-28 (1996)

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Koskenniemi’s work and the main lines of evolution of the critical movement in international law. Although this essay will attempt to supplement this angle on inquiry, E. Jouannet’s work remains the most perfected overall philosophical portrait of Martti Koskenniemi currently available in any language.

The key-importance for the understanding of all his successive work that the author himself ascribes to his 1989 seminal20 inquiry into the structure of the international legal argument21 justifies that this article opens by engaging with an already traditional explanation of the main theses of Koskenniemi’s path-breaking From Apology to Utopia at the time of its re-issue with a new Epilogue. Moreover, its doctrinal emplacement as the book that "managed to convey to a wide audience the challenging, but hitherto rather mysterious message of CLS for international law",22 suggests the convenience of a brief inquiry into the internal dynamics of Koskenniemi’s disciplinary renovating impact as part of a critical international legal movement some of which intra-disciplinary precedents and main characteristics must be searched in the work of a number of international legal scholars in the 80s’. An attempt will, subsequently, be made to present the author's own deep introspective journey into the archetypes that nurture the international lawyer's self-sustaining intellectual mythology. It will be argued that Koskenniemi’s work champions a profoundly ethical-oriented awakening call addressed to his contemporary doctrinal counterparts. In defending that no discontinuity or rupture in Koskenniemi's work, no renunciation, and less oblivion of the baggage of his 90s’ scientific insights, but rather a integral evolving transference is to be found in his so-doctrinally vaunted "culture of formalism", I will examine, by reference to a number of Koskenniemi´s works, how the latter may be seen as a consistent and realistically emancipatory perspective of international law in the early stages of the 21st century. This will involve an application of Koskenniemi’s interpretative framework to the doctrinal divide brought about by the aftermath of 9/11 and the Iraq war as well as an examination of the gradual strengthening of international constitutionalist debate in international legal doctrine. The latter will give way to an assessment of the relationship between the critical Newstream's epistemological and normative challenges to traditional international law and Koskenniemi's defense of a "culture of formalism" as a philosophically inclusive emancipatory tool against the "managerial mindset" and the related risk of de-formalization brought about by the current evolution of international law towards IR grounded new vocabularies.

20 Koskenniemi, FROM APOLOGY supra note 3 at 563. 21 Martti Koskenniemi, The Politics of International Law 1 European Journal of International Law 4 (1990). See how the French compilation volume opens with this summarized version of FATU, Martti Koskenniemi, Entre utopie et apologie: la politique du droit international in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL 51-96 (2007). 22 Bruno Simma, Editorial 3 European Journal of International Law, 1, 2, (1992)

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These are - so as to use some Weberian lexicon - prone to channel new forms of lego-material domination that, as such, would find a nurtured soil in the solipsistic character of sectoral regimes in the international legal order. Being each of these regimes ridden by its own hegemonic substantive ethos in a deformalised wrapped up ensemble, the likely forthcoming scenario is that of a struggle for institutional hegemony and jurisdictional conflict in a transnational sphere that is gradually becoming more impermeable to contestation by the lego-formal rationality of sovereign-states. A conclusion will round off this introductory inquiry into the work of one of the fundamental international lawyers of the end of the 20th century and early stages of the 21st century.

2. From Apology to Utopia - and vice versa - to the Turn to Theory in International Law In his new Epilogue - read by some as a “traveler’s tale, a journal of the voyage”23- to the reissuing of From Apology to Utopia in 2005, Koskenniemi approaches the descriptive and the normative projects behind his work with the aim of providing an intellectual framework for its interpretation, further engagement and critical assessment.24 The explanation of the book’s descriptive project offers Koskenniemi the opportunity to revisit anew the intellectual path that led him to think of international law as a language and of the central opposition between formalism and realism that is a key part of its (generative) grammar.25 Koskenniemi sets also to stress the normative project behind the book by paying a scholarly counter-tribute to some of the objections early addressed against From Apology to Utopia. He divides those objections in three types of related criticisms that he identifies as respectively focused on “the semantics of the linguistics”,26 “the social pragmatics of the legal profession”,27 and, a final, and “more fundamental attack on the normative pretensions of the book”.28Before examining these responses that will, in its turn, precede an analysis of the doctrinal reaction that welcomed the original publication of FATU back in 1989 it is, however, necessary to briefly recall the main theses developed by the book.

In a recently published retrospective analysis of the opening article of the European Journal of International Law’s inaugural issue, 29 that summarized at the time From Apology to Utopia’s core arguments, Koskenniemi insists on how “20

23 Orford, A Journal of the Voyage supra note 2, at 993. 24Koskenniemi, FROM APOLOGY supra note 3, at 562-3. 25 Id., 564-565. 26 Id. at 590-596. 27 Id. at 596-600. 28 Id. at 600-615. 29 Martti Koskenniemi, The Politics of International Law 1 European Journal of International Law (1990) 1.

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years ago it seemed intellectual necessary and politically useful to demonstrate the indeterminacy”30 and, by ricochet, “the inevitability of politics in the profession of public international law”.31 Influenced by the reformulation operated by CLS of the classic themes of leftist movements in modern legal thought - that is, “a criticism of formalism and objectivism”,32 and the “purely instrumental use of legal practice and doctrine to advance leftist aims” -33 Koskenniemi is well-known for his indeterminacy critique of the international legal argument which he pinned down as one eternally damned to oscillate between its apologetic ascending search for concreteness and its utopian descending claim of normativity. Such a totemic dancing34 mirrors the self-reproducing tensional relationship between sovereign freedom and world order that constitutes, in its turn, a reflection of the tension between individual freedom and social or communal order at the domestic level.

International law’s indeterminacy is for Koskenniemi intrinsically linked to the reproduction of “the paradoxes and ambivalences of a liberal theory of politics”35 and, especially, to the ruling exigencies of the principle of the primacy of the rule of law understood as the liberal answer to the subjective indeterminacy of values. Such subjective indeterminacy of values is inherent in the epistemology of a liberal theory which is, by definition, impermeable to any theory of justice on which to ground a universal morality including the principle of liberty as even this is in conflict with liberalism’s horizontal approach to values. All the argumentative positions to which the international legal discourse can give rise are trapped in that generative structure. These positions are, explicitly, concretized36 by the author as the “rule approach, the teleological approach, skepticism and idealism” as well as their cross-bred combinations. Once opened to an internal critique of its logic, the analysis of the liberal theory of politics that frames international law’s evolution derives into a critique of international law’s ideology as one that relies on a recurring antinomy in doctrinal argument. Such an antinomy is a contradiction founded on the bipolarity of composite conceptual differentiations that, as dependent upon each other, cannot but lead to the irremediably indeterminate nature of international law. International law is,

30 Martti Koskenniemi, The Politics of International Law – 20 Years Later 20 European Journal of International Law 1 (2009), at 11. 31 Id.,7. 32 ROBERTO MANGABEIRA UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT (1986), at 1. 33 Id., at 4. 34 For the use of a dancing performance by Koskenniemi as metaphor to refer to it, see: Koskenniemi, A Response, supra note 2. 35 Koskenniemi, FROM APOLOGY, supra note 3, at xiii. 36 Koskenniemi, The Politics of International Law, supra note 21.

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consequently, portrayed as a pattern of rhetorical legitimating of a politically limited series of choices between apparently juridical pre-ordained outcomes.

Retracing FATU’s thesis back to the liberal contractarian theory at the core of the international legal field allows, furthermore, criticizing the international legal order as one liberally premised on a sovereign-centric conception of world order.37 While the foundational consent-based norm that makes of state consent a law-creating fact in international law derives into a form of ad nauseam regress - a key aspect of Hersch Lauterpacht’s practice oriented critique of voluntarist positivism38 - the structural code, historically associated with a classical liberal approach to international law, has evolved sustained by its embodiment in the fundamental principles of international law like formal sovereign equality and sovereign freedom so as to culminate in its enshrining by GA Resolution 2625 understood as “liberalism at its best”.39 The international legal system has done so by not breaking the equation of sovereigns with individuals, which is, as already noted, the basis of its condition as a self-sustained regime when seen through the lenses of a binary coding of distinctions. Such a code is illustrated by the author in its diverse “homologies or transformations: justice/will; law/fact; natural law/positivism; community/society; rules/processes; diplomacy/Realpolitik and, of course, utopia/apology”.40 This dychotomical recurrence is shown, among others, by the examination of how the doctrines of sovereignty and the doctrine of sources merge into each other because “what sovereignty means and when what it creates amount to law can only be determined through an external criterion – sources, and what sources are and how they operate must depend of what is produced by sovereignty”.41 Such a tension derives into “an indeterminacy that is a central aspect of international law’s acceptability” and leads the author to conclude “that there is no space in international law that would be free from decisionism, no aspect of the legal craft that would not involve a choice - that would not be, in this sense, a politics of international law”.42

While for Koskenniemi the “descriptive project of From Apology to Utopia was to reconstruct the argumentative architecture of international law”, the

37 See infra the analysis of this question by the author at Martti Koskenniemi, A quoi sert le droit international? in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL 321-356 (2007). This work was originally published as Martti Koskenniemi, What is International Law For? in INTERNATIONAL LAW 89-116 (Malcolm Evans, dir., 2003). 38 An author whose work is thoroughly examined in “Lauterpacht: The Vitorian Tradition of International Law” which is Chapter V of MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS 353-412 (2001). 39 Koskenniemi, FROM APOLOGY supra note 3, at 61. 40 Martti Koskenniemi, A Response, supra note 2, at 1104. 41 Id. at 589. 42 Koskenniemi, FROM APOLOGY supra note 3, at 596.

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resulting fruit cannot, however, be “an account of how decisions are made - it is about how they are justified in argument”.43 Arguing that “the politics of international law is what competent international lawyers do”44 implies that all what they are, by definition, not allowed to do (or to put it differently, all what is excluded by the international lawyer’s competence, understood as “the ability to use grammar in order to generate meaning by doing things in argument”)45proves that, despite its “claims to be non political and even hostile to politics”46, liberalism’s ideological structure” (as source of “a grammar (that) is not a description of what native-speakers say in fact - is an account of what is possible to say in that language”) “pre-empts and precludes alternative conceptions of international law with which it conflicts”.47 There are, therefore, different levels for the unfolding politics of international law – which is “the truth of law dissimulated behind the liberal principle of the primacy by the application of the rules of law”.48 These different levels are captured by what the author describes as “also a “pure law” approach, because it relies on the self-regulating nature of legal argument”.49

The first level is the argumentative structure of the international discourse per se as shown by the demonstration of the indeterminacy thesis construed upon the justifying failure of the principles of international law grounded in the liberal theory of politics.50 The second level is the ad-hoc decision that adjudicates by recourse to a politically-ridden equity that is generally dependent on a determinate institutional bias, or to put it differently, “a politics of international law in action”51 that should be understood as a theory of structural bias in relation to the rationale behind the fact that “the politics of international law is largely a debate about the jurisdiction of particular institutions“.52 A third - and only implicitly referred – level of the politics of international law would therefore be all what is excluded from the language of international law because it is not accessible in its grammar. This is to what Koskenniemi would refer to as the limits of international law as social ideology that reveals certain aspects of reality while hiding others

43 Id. at 589. 44 Id. at 571. 45 Id. at 571. 46 Id. at 64. 47 Purvis, Critical Legal Studies supra note 8, at 100. 48 Koskenniemi, Entre Utopie et Apologie, supra note 21, at 94. The reference is made to French version as this excerpt is not present in the original English version. 49 Koskenniemi, FROM APOLOGY supra note 3, at 13. 50 Koskenniemi, FROM APOLOGY supra note 3, at 610. 51 Id. at 610. 52 Id. at 610

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what further shows how this immanent critique of international law’s ideology53can be retraced to Critical Theory.54

However, unveiling the dimensions of the politics of international law by a doctrinal oriented description of the grammar of international law is for Koskenniemi but a precondition of the normative project of his book. The previous overreaching epistemological critique should, thus, be understood as a preface of FATU’S normative project. Born from the author’s concern with the actual distributive consequences of international law’s flight from politics, this normative project acts as a bridge between the book’s normatively diagnostic and remedial functions. These latter functions are identified by Koskenniemi with the goal to “provide resources for the use of international law’s vocabulary for critical or emancipatory causes”55 and not with a call for an idealistic resolution of the consubstantial nature of indeterminacy. As Koskenniemi explains “the principal object of the criticisms of From Apology to Utopia is not international law as a form of argument or a professional competence - after all there is no other professional grammar (of “international relations”, say, or “political theory”) in which the world’s problems would have been resolved in a more satisfactory way”.56 This seemingly underlying irremediability of international law’s liberally premised internal logic is also conveyed by the author when he stresses that “without such oppositions and the way they provide a thematic for international legal “speech”, there could be no international law in the first place.”57

In his new Epilogue, as already advanced, Koskenniemi sets to stress the normative project behind his book by paying a scholarly counter-tribute to some of the objections early developed against From Apology to Utopia. He does so by dividing those objections in three types of related criticisms that he identifies as, respectively, focused on “the semantics of the linguistics”,58 “the social pragmatics of the legal profession”,59 and a final and “more fundamental attack on the normative pretensions of the book”.60 In the first case, against those who question the nature of indeterminacy by reference to its contradiction with the common distinction in legal hermeneutics between core and peripheral meanings of legal words, Koskenniemi clarifies that the “indeterminacy treated in From

53 Purvis, Critical Legal Studies supra note 8, at 99. 54 See, e.g. introductorily, DAVID HELD, INTRODUCTION TO CRITICAL THEORY: HORKHEIMER TO HABERMAS (1999). See an explanatory of it application to international legal doctrine, SUSAN MARKS, THE RIDDLE OF ALL CONSTITUTIONS 121-151(2000). 55 Id. at 589 56 Id. at 605. 57 Martti Koskenniemi, A Response supra note 2, at 1007. 58 Id. at 590-596. 59 Id. at 596-600. 60 Id. at 600-615.

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Apology to Utopia is not about semantic openness of legal speech”,61 but one dependent on the “over-inclusiveness and under-inclusiveness” of all rules due to the contradictory premises on which they are grounded and the “instability in time” of the purposes they serve in view of the unsettled preferences at their regard of single actors leading to the “apparent paradox that even a “literal” application is always a choice that is undermined by literality itself”.62 In the second instance, against those who stressed “that owing to its concentration on adversarial procedures, the book has come to exaggerate the role of conflict in international law“63, he counter-argues that the “adversarial nature of (international) law is an internal constitutive presupposition of legal argument“ 64 because “in the search for justifiability (…) every argument is vulnerable to the logic of apology to utopia” in conformity with a liberal theory of politics under which the point of law is to lead society away from politics, understood as an effort to move from a state of contestation and conflict to one governed by rational rules, principles and institutions”.65Once the accuracy of the articulation of the experiences of indeterminacy and hegemonic conflict has been demonstrated in confronting the criticisms addressed to them, Koskenniemi tackles the “more fundamental attack on the normative pretensions of the book” by playing down both of them as amounting to a “weak critical thesis”. 66 He does so by highlighting the “weakness of internal or immanent critique” insofar as its two corollaries, otherwise, the undermining of the legitimating power grounded on the liberal doctrine of politics, and its description of the practice of law as politics, might be, respectively, minimized by the practical nature of international law as discipline, and the unproblematic political nature of law as such.67

The path chosen for the reconstructive echoing of the logic of the criticisms addressed to the book further unfolds through the explanation of the rationale behind the impossibility that FATU may have contained a pragmatically instrumentalist-oriented alternative institutional blueprint68 and attains a climax in, what in retrospect, Koskenniemi stresses was the main “political point” of the book. This is identified as the device that makes possible the conversion of the weak indeterminacy thesis into a strong one, or in other words, the fact the weak indeterminacy thesis “needs to be supplemented by an empirical argument, namely that, irrespective of indeterminacy, the system still de facto prefers some

61 Id. at 595. 62 Id. at 596. 63 Id. at 596. 64 Id. at 599. 65 Id. at 599. 66 Id. at 600. 67 Id. at 600-1. 68 Id. at 603-604.

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outcomes or distributive choices to other outcomes or choices”.69 Indeed, the analysis of this “structural bias (that) must be shown by reference to particular institutions or practices”70 has constituted one of the favorite topics of the author in some of his post- FATU writings. His research on the manner in which the indeterminacy thesis - as a sort of principled politics of law at the general level - is supplemented by the way in which certain choices appear methodologically privileged in its condition of politics of law in action is examined, among others, through the demonstration of how these biases operate in the law of force71 and human rights law72 or by demonstration of how international law constitutes itself as an hegemonic technique.73

Lurking behind this interest lies the author’s intuition, one that marries him into the Third World Approaches to International Law of second generation or TWAIL II,74 that “the most serious problems of the international world are 69 Id. at 606-607. 70 Id. at 610. 71 The examination of the use of force constitutes an important aspect of Koskenniemi’s work, see Martti Koskenniemi, La place du droit au sein de la securité collective in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL 99 (2007) and Martti Koskenniemi, “La dame fait trop des serments” Le Kosovo et le tournant vers l’éthique en droit international in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL 145 (2007). These essays can also be found in English as Martti Koskenniemi, The Place of Law in Collective Security 17 Michigan Journal of International Law 455 (1996) and Martti Koskenniemi, “The Lady Doth Protest too Much” Kosovo and the Turn to Ethics in International Law 65 The Modern Law Review 159 (2002). 72 Martti Koskenniemi, L’effet des droits sur la culture politique” / “Les droits de l’homme, la politique et l’amour originally published as Martti Koskenniemi, The Effect of Rights on Political Culture in THE EUROPEAN UNION AND HUMAN RIGHTS 99 (Philip Alston,ed. 1999) 73 Martti Koskenniemi, Droit international et hégémonie: une reconfiguration in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL 145 (2007) earlier published in English as Martti Koskenniemi, International Law and Hegemony : A Reconfiguration 17 Cambridge Review of International Affairs 117 (2004) 74 Although not as retrospectively as the author portray it according to a commentator of his work who notes “It is hard to see how FATU, when originally published, could be seen to express a critique of the way international law helped to sustain an unequal relationship between a powerful North and a weak South”. The same commentator supplement his view by noting that “Koskenniemi’s work between FATU’s first and second editions (between 1989 and 2005) has in fact focused significantly on the central intuition that he attributes to the first edition, viz., that international law is structurally biased against the South” see Balakrishnan Rajagopal, Martti Koskenniemi’s From Apology to Utopia: a reflection, 7:12 German Law Journal 1095 (2006). It is true that the background international legal interest showed by the erudite Finnish author for the “poor, dark and hungry” masses of the Third World pales in comparison to B.Rajagopal’s main focus analysis of the contemporary problematic in BALAKRISHNAN RAJAGOPAL, INTERNATIONAL LAW FROM BELOW: DEVELOPMENT, SOCIAL MOVEMENTS AND THIRD WORLD APPROACHES (2003). For a historical perspective by Koskenniemi see, nonetheless, Chapter II “Sovereignty: A Gift of civilisation –international lawyers and imperialism 1870-1914” in M.KOSKENNIEMI; THE GENTLE CIVILIZER OF NATIONS: THE RISE AND

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related to its sharp division into a relatively prosperous North and an impoverished and conflict-ridden South (it is not necessary to take these descriptions in their original geographical sense) and that our practices, institutions and conceptual frameworks somehow help to sustain it”.75 Such positioning is apparent in his leaning on the side of critical third world legal scholars such like B.S. Chimni who insists that “the threat of recolonisation is haunting the third world”.76 It might suffice, in order to exemplify this connection, to recall Koskenniemi’s position on the so-called emerging right to intra-state democratic governance in international law, one that for him “will always be suspect of neo-colonialist strategy” because “it is too easily used against revolutionary politics that aim at the roots of the existing distributive system, and it domesticates cultural and political specificity in an overall (Western) culture of moral agnosticism and rule by the market”77. Koskenniemi, always faithful to his creed that “international law is what international lawyers make of it”,78 concludes his new Epilogue by stressing the personal intellectual responsibility of the international lawyer confronted to an international law that emerges from the critique of indeterminacy, which is boundless to the extent it can be used to justify as well as criticize the existing practices that lead to an international legal system that is “complicit in the actual system of distribution of material and spiritual values in the world”.79 For the author, “the descriptive and normative concerns of From Apology to Utopia remain as important as they were at the end of the 1980’s”80 and, in view of the considerable discussion, criticism and praise elicited by its re-issuing in 2005, he is definitively not alone in thinking so. Yet, before tackling how these tenets unfold in his different works, it is necessary to zoom out to the impact of From Apology to Utopia on the doctrinal landscape of the early 90ies.

The argument “that the structure of international law understood synchronically as a normative framework without foundation, must swing aimlessly between the non-law of state power and the non-law of foundationless

FALL OF INTERNATIONAL LAW 1870-1960 (2001). For the leit-motiv use of the expression “poor, dark and hungry masses of the Third World”, see at numerous reprises Rajagopal’s work referred. 75 at 606. 76 B.S. Chimni, Third World Approaches to International Law: A Manifesto 8 International Community Law Review 3, 3 (2006)99 77 M.Koskenniemi, Martti, “Whose intolerance, Which Democracy?” in DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW 436-440 (Fox, G.H. and Roth B.R., Eds. 2000) 78Koskenniemi, FROM APOLOGY supra note 3, at 615. 79 Koskenniemi, FROM APOLOGY supra note 3, at 615. 80 Id. at 563.

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normative standards”81 came as a disciplinary cold shower or, as one international lawyer or other might well have call it, as “a shock for Western intellectuals” at the time of From Apology to Utopia’s original publication in 1989. This doctrinal reaction (on which more anon) is explained by the fact that the search for an objective non-political authority has traditionally been adamant as lodestar in a discipline historically bounded to continually restate its relevance against the dangers associated with sovereign power in pursuit of its interests leading to the well-known risk of international anarchy and international conflict. The assessment of this Sisyphus’ like flight from politics through technicality in a continuous effort by the doctrine to restate its relevance vis-à-vis the political realm at the image of its domestic counterparts is one of the key-interpretative lenses that, under diverse guises, and in multiple contexts, traverses the whole of Koskenniemi’s examination of the ethos of international law.82 It is, indeed, in the will to escape from its recurrent repetition through history, that the two premises of liberal internationalism, that is to say, a sovereign-centric conception of world order, and the principle of subjective value, have been traditionally theorized. This theorization allows to ground on the domestic analogy an identity of international law placed beyond normative and descriptive accounts of politics in its departure from a posited original Hobbessian state of nature and thus empower international law to ideally tame in a gentler civilizing fashion the discretionary ruling acts of the single normatively empowered units of the system. However, as already explained, Koskenniemi shows that international law’s - both instrumentally and teleologically conceived - “fuite en avant” is grounded on the staging of the reiterative and overlapping displaying of a normative and a descriptive accounts of politics damned to reach for, but never to attain, each other. It is this “generative grammar” which accounts for both “the simultaneous sense of rigorous formalism and substantive or political open-endedness of argument about international law”,83 the articulation of which inner tension lies behind the descriptive concern of From Apology to Utopia, and that is made by the author the “condition of possibility of there being something like a distinct experience of international law”.84

Originally published in 1989, FATU is widely considered to be the work which “managed to convey to a wide audience the challenging, but hitherto rather 81Anthony Carty, International Legal Personality and the End of the Subject: Natural Law and Phenomenological Responses to New Approaches to International Law 6 Melbourne Journal of International Law, 16 (2005) (reviewing JANNE ELISABETH NIJMAN THE CONCEPT OF INTERNATIONAL LEGAL PERSONALITY: AN INQUIRY INTO THE HISTORY AND THEORY OF INTERNATIONAL LAW (2004) 82 See recently, Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics 70 Modern Law Review 1-30 (2007) at 1-2. 83 Koskenniemi, FROM APOLOGY supra note 3, at 562. 84 Id. at 565.

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mysterious message of CLS for international law”.85 Being the latest, among the three book-length critical contributions produced in the 80s’,86 it contributed to the doctrinal wave-like reception of what was, already, by-then, a decade long ground-setting work of critical nurturing perspectives in international legal doctrine. In doing so, it ultimately succeeded in challenging mainstream international law to turn its attention back again to theory.87 In outlining, as highlighted by David Kennedy, what “it could mean to integrate the field around a recurring problem rather than as progress toward a cosmopolitan solution”,88 Koskenniemi’s doctoral dissertation not only prevailed by piercing the “consciousness of the establishment”89 but has, moreover, remained a constant source of inspiration for a multifaceted powerful internal critique of international law. This critical school lived its first golden age as a critical counterpoint of the explosion of international liberal optimism in the possibilities of international law and forms of anti-positivist liberal internationalism throughout the 90ies. For some, the doctrinal life-cycle span of this “post-modernist era in international law” of which Koskenniemi’s work is portrayed as the ultimate embodiment, ended with the new emerging challenges posed to the international legal order by the events of 11/9.90 To attempt to grasp the impact of the post-modernist approach to international law, understood as “the assertion that the discipline is governed by a particular historically conditioned discourse which is, in fact, quite simply, the translation onto the international domain of some basic tenets of liberal political theory”,91 as well as, in order to identify some of the doctrinal features of the Newstream in connection to Koskenniemi’s work is necessary to refer back to the previous almost one decade's long international legal branch of CLS’ background setting work.

3. Sketch of the Portrait of a Generational Perspective The disciplinary renovating impact of Koskenniemi is intrinsically linked to the evolution of the critical movement in international law whose precedents and original characteristics must be searched in the work of a minority of international 85 Bruno Simma, Editorial 3 European Journal of International Law, 1, 2, (1992) 86 The other two seminal works are by Anthony Carty, THE DECAY OF INTERNATIONAL LAW (1986) and David Kennedy INTERNATIONAL LEGAL STRUCTURES (1987) 87 See, in Spanish, for an early, and almost unique since then, discussion about the critical legal movement in international law, Oriol Casanovas, La vuelta a la teoría, in HACIA UN NUEVO ORDEN INTERNACIONAL Y EUROPEO. ESTUDIOS EN HOMENAJE AL PROFESOR DON MANUEL DÍEZ DE VELASCO 179 (Manuel Pérez González, Ed., 1993) 88 Kennedy, The Last Treatise, supra note 2, at 606. 89 Id. 90 Paulus supra note 8, 729. For a very different account see Anthony Carty, International Legal Personality supra note 51. 91 Carty, Critical International Law, supra note 8, at 1.

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legal scholars, generally portrayed in the 80’s as the international legal branch of CLS understood as a theory of law.92 David Kennedy’s book length work, International Legal Structures93 and a number of his related articles, starting as early as 1980,94 pioneered the application of the post-modernist critique to international law. Kennedy’s aim was to “reformulate the relationship between law and politics in rhetorical terms”95 by looking at “public international law from the inside“96 so as to focus upon “the relationships among doctrines and arguments and upon their recurring rhetorical structure”.97 In seeking “to unify the historical, theoretical, doctrinal and institutional projects of the discipline” through “a methodological reformulation”98 Kennedy’s efforts were aimed at dislodging the “discipline of international law from its stagnation”99 in “the tragic voice of post-war public law liberalism”.100 This is a task in which he benefited from the, by then, already quite sophisticatedly advanced CLS’ on-going “trashing” of US’ domestic liberal legalism since the mid 70’s and, especially, from Roberto Unger’s critique of liberalism,101and Duncan Kennedy’s analysis of private law doctrine,102legal history 103and the fundamental contradiction.104 These two authors are also eminently present as influences in the work of Koskenniemi himself.105

Aware of the fundamental role that philosophical and linguistic traditions played in Koskenniemi’s analysis of the structure of the international legal argument, E. Jouannet examines in a recent work,106 the deep-rooted theoretical perspective that influences the author’s scientific approach to international law. 92 See DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION. FIN DE SIECLE (1998). 93 DAVID KENNEDY, INTERNATIONAL LEGAL STRUCTURES (1987) 9494 David Kennedy, Theses about International Law Discourse 23 German Yearbook of International Law 353 (1980) This article is regarded as the first application of post-modernism to international law. 95 David Kennedy, A New Stream of Internacional Legal Scholarship, 7 Wisconsin Journal of International Law 7 (1988 ) 96 Id. at 11. 97 Id. at 10. 98 Id. at 11. 99 Id. at 6. 100 Id. at 2. 101 ROBERTO MANGABEIRA UNGER, KNOWLEDGE AND POLITICS (1975) 102 Duncan Kennedy, ‘Form and Substance in Private Law Adjudication’, 88 Harvard Law Review 1685 ((1976) 103 DUNCAN KENNEDY, THE RISE AND FALL OF CLASSICAL LEGAL THOUGHT (1975) 104 Duncan Kennedy, ‘The Structure of Blackstone’s Commentaries’, 28 Buffalo Law Review 205 (1979) 105 Specially manifest is the influence of Duncan Kennedy, “Form and Substance in Private Law Adjudication” in DAVID KENNEDY AND WILLIAM W.FISHER III (Eds.) THE CANON OF AMERICAN LEGAL THOUGHT 649-729 (2006) 106 Jouannet, Présentation, supra note 11.

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Jouannet highlights the originality of Koskenniemi’s integration of the linguistic turn in complementary association with the insights of Critical Legal Studies (CLS) and French structuralism.107 She links next what she terms “the structural thesis” to its in-dissociable Janus-faced “denunciation of political liberalism in international law”108 in order to present “the double thesis (on language and politics) – that is, indeed, a single thesis with two variants”109 as one that bear witness to the manner in which Koskenniemi distances himself from “a radical structuralism to prove his main affiliation with CLS, but also with the Frankfurt School ».110 Koskenniemi’s “plotéiforme” and ever-evolving thought appears portrayed as one placed in « in opposition to the great movements of contemporary thought insofar as it is non positivist, and not strictly realist, but structuralist, deconstructivist and anti-liberal ».111

The extremely erudite trans-disciplinary intellectual background filtered by the author to the study of international juridical science asks for a brief reference to the influence on his work of different fields of social sciences - from political philosophy to sociology, linguistics or anthropology. While names as those of F. de Saussure, L. Wittgenstein, C.Levi Strauss, M. Foucault, P.Bourdieu, M.Weber, C.Schmitt, J.Derrida, H. Arendt, J.Habermas and Agamben are present below the surface of Koskenniemi’s work, less examined, in this regard, is the parallel influential evolution of “reflectivism”112 on his approach to international law. “Reflectivism” is the term of art used to designate the amalgam of critical approaches that made for the so called third (and grounded the origins of the fourth)113 grand debate in the field of international relations in the 80’s. If, indeed, Koskenniemi admits that “what I am after is reflexivity, a movement between theory and practice, and between distance and intimacy”,114 the tectonic movement of renovation in social sciences that influenced CLS did, also, affect, in an inter-paradigmatically manner, a new generation of critical IR theorists enmeshed in analysis of questions of the so called “second order” - that is ontological and epistemological queries - against a body of theory of mainstream IR theory inherently linked to the discipline of

107 Jouannet, Présentation, supra note 11, at 17. 108 Jouannet, Présentation, supra note 11, at 24. 109 Id. at 23. 110 Id. at 21. 111 Id. at 14. 112 The term was coined as a residual category for all critical voices of mainstream by R.O.Keohane, International Institutions: Two Approaches, 32:4 International Studies Quarterly, 381-382 (1988) 113 Kepa Sokupe, Del tercer al cuarto debate en las relaciones internacionales, LIV Revista Española de Derecho Internacional 65 (2002) 114 Martti Koskenniemi, International Law in a Post-Realist Era, 16 Australian Yearbook of International Law 1 (1995)

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international law as traditionally conceived. The parallel unfolding of debates in IR theory around epistemological relativism vs. minimal foundationalism in the quest to identify basic criteria to discriminate between alternative theories with emancipatory value, as well as the efforts aimed at distinguishing an exclusive compromise with the epistemological value of critical knowledge from a compromise with a form of radical ethics might, thus, be profitably cast, as open interpretative lines of research, against the origins and evolution of Koskenniemi’s work and, by extension, to that of the critical approaches to international law.

This generational reaction, which was fostered the emergence of a New Stream of international legal scholarship,115 asks for a contextualization of Koskenniemi’s work within an internal perspective of the doctrinal evolving path of the discipline. As noted by the author, “the main target of From Apology to Utopia is a culture of pragmatic instrumentalism as transmitted through the language of international law“116 that resulted in the merging of “sovereignty and sources into and yet remaining in tension which each other, their relationship thus ensuring the endless generation of international legal speech - and with it, the continuity of a profession no longer seeking a transcendental foundation from philosophical or sociological theories”.117 This same confrontational stance towards pragmatism and the technocratic culture that goes hand to hand with it and muffles, according to the author, the emancipatory potential of international law, explains how “from the perspective of From Apology to Utopia (…) the offer of policy-relevance by engaging in institution-building was a poisoned chalice”.118

The explanation of Koskenniemi’s greater appeal in Europe, in comparison to the work of Kennedy, and other members of the international legal branch of CLS’ can be also partly ascribed to the split in two (as such one grounded of a classical dichotomy of the transatlantic legal culture divide) of the turn towards pragmatism in the discipline in the 1950s. The author describes this duality as one that, on the one hand, results in “lawyers from the United States suspicious of institutional formality and claims of sovereign equality and re-conceiving international law - including the UN - from the perspective of its instrument usefulness”119and, conversely, “European lawyers directing their attention to regional construction and taking an extremely formal view of international law and especially of the UN Charter”.120 The long historical

115 Kennedy, A New Stream supra note 12, at 105. 116 KOSKENNIEMI, FROM APOLOGY supra note 3, at 604 117 Id. at p.575. 118 Id. at 603. 119 Id. 120 Id. at 612.

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pedigree of anti-formalism in the U.S. legal academy can also help to explain why the European doctrine might have resented, in a more acute fashion, than the both eclectic and marginal United Statesean tradition of International law,121 the indeterminacy challenge when presented in an un-historical structurally conditioned manner accompanied by a wide reference to traditional international legal practice, doctrine and the historical evolution. Indeed, Kennedy’s early reaction to post-war public law liberalism in the U.S. that he defined as one “animated by this single interlocutory”122 presents a greater stress on the specifics of US’ academy. Kennedy even adopted a clear post-Vietnam challenging generational tone when he described the international legal US’ academy in the late 70ies as “one in which no one seemed to think international legal theory could offer more than an easy patois of lazy justification and arrogance for a discipline that has lost its way and kept his jobs”.123 This generational regenerative will to pursue the anti-formalist lineage of the US’ Legal Realism to its limits against a post-legal realist pragmatic oriented efforts of legitimization (whether in a combination of “strong anti-formalism with an insistence on realism about sovereign autonomy as the basis for a world community”124 in the Yale School or, as the combination of “a weak anti-formalism with a commitment to neutral norms and humanist institutions as law for the modern international community”,125 in the Columbia School) is a feature originally shared by Kennedy with his domestic counterparts in the CLS’ movement against the re-legitimating responses to the challenges of Legal Realism of Legal Process Theory. While one of Kennedy’s innovative lines of research is, indeed, grounded on “mapping international law disciplinary lexicon”126 through the study of successive generational shifts of repetition and renewal in the field, the same generational disciplinary challenge is also overt in Koskenniemi who, after portraying all the argumentative positions to which the international legal discourse conditioned by the liberal theory of politics can give rise to - the “rule approach, the teleological approach, skepticism and idealism” - concludes by

121 see: D.Kennedy, The Disciplines of International Law, supra note 13 at 34. 122 Kennedy, A New stream, supra note 12. 123 Id. In what constitutes a clear homage echo to the CLS’ manifesto by Roberto Unger, otherwise, the well-known "when we came, they [the law professors] were like a priesthood that had lost their faith and kept their jobs. They stood in tedious embarrassment before cold altars. But we turned away from those altars and found the mind's opportunity in the heart's revenge." ROBERTO MANGABEIRA UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT (1986), at 119. 124 David Kennedy, My Talk at the ASIL: What is New Thinking in International Law? 94 American Society of International Law Proceedings 104, 117 (2000) 125 Id. at 118. 126 Id. at 122.

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criticizing the pragmatic eclecticism that had resulted from the shifting pendulum of a mainstream scholarship.

Such a questioning of the “empty, dull and soulless pragmatism of international law”127, this effort of unbalancing what might be, in the critical theory tradition, called a “internal false state of reconciliation” in the 80ies, is also present in other fellow critical travelers of the same generation as Nathaniel Berman’s original approach to the history and nature of international law,128 Anthony Carty’s setting the stage for a non-foundational dialectic in international legal argument, 129 B.S. Chimni’s innovative post-colonial perspective of international law, or James Boyle’s criticism of the political effects of the “pervasive reification that operates on the level of everyday politics as well as in the conceptual netherworld of international legal scholarship”130. The fact that Koskenniemi shares a generational anti-pragmatist and anti-technocratic rejuvenating spirit in reaction to the retreat from theory into doctrine - a dichotomy the disentanglement of which lies precisely as the starting-point of FATU131- should be put in connection to the rationale behind the greater doctrinal challenging appeal of Koskenniemi’s work vis-à-vis the rule-approach oriented European traditional efforts at sustaining “a meta-system supposed to give determinacy and neutrality to the everyday acts of legal interpretation within the international legal process”.132Yet, this appraisal should not occlude the fact that Koskenniemi’s own work also benefits from the development of “a counter-tradition of criticism” surged “alongside the mainstream U.S.’ tradition” of international law. This counter-tradition criticized the US’ mainstream work both internally and externally. Internally “for failing to complete its own anti-formalist project, for continuing ambivalence about the state, about legal sovereignty, and so forth”133 with the goal of unearthing the blinds spots, overstatements, or elisions which are part of the discipline’s normal doctrinal or institutional practices.134 Externally by seeking “to link the mainstream to an ideological bias” and thus coming up with a “situated historical and strategic” project that investigates “how one or another mainstream blend of rule and policy may

127 Emmanuelle Jouannet, Présentation in NATHALIEL BERMAN, PASSIONS ET AMBIVALENCES: LE COLONIALISME, LE NATIONALISME ET LE DROIT INTERNATIONAL 13 (2008). See further Ignacio de la Rasilla, International Law in the Historical Present Tense 22 Leiden Journal of International Law 3 (2009) 128 Id. 129 ANTHONY CARTY, THE DECAY OF INTERNATIONAL LAW (1986) 130 James Boyle, Ideals and Things: International Legal Scholarship and the Prison -House of Language. 26 Harvard International Law Journal 327, 328 (1985) 131 KOSKENNIEMI, FROM APOLOGY supra note 3, at 4. 132Boyle, Ideals and Things, supra note 130, at 328. 133 Kennedy, The Disciplines of International Law, supra note 13 at 34. 134 Id. at 35.

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function as a cover or polemic for particular interests”.135 Although it is partly due to the spurring of a body of companion bibliographical literature surged around FATU’s publication136 and its effect on the “theoretical dormancy”137 of the discipline, that the retrospective coherence of the international legal branch of CLS in the 80ies, has seen itself externally re-constructed, the influence on Koskenniemi’s work of the original generational internal counter-reaction to the US’ mainstream international law should not go unnoticed. Such a reaction helped to set a disciplinary international legal common ground of critical sensitivity that lies in the origin of the evolution of a heterogeneous and multifaceted academic critical platform, known during the 90ies138 as the New Approaches to International Law’s (NAIL) project.

Although certaintly influencial in the anglo-saxon world, NAIL has not been so equally influential in continental Europe’s international legal thinking. In her efforts to introduce Koskenniemi’s work for the first time to a French-speaking audience for whom the work of the author remains much less, in comparison to the English speaking world, well known, Jouannet pointed as a justification of such lesser degree of familiarity, the greater disciplinary compartmentalisation of the French academy as well as the very critical anglo-saxon spirit that the theses defended by Koskenniemi may appear to reflect.139 Although, somehow, counteracted since he became member of the International Law Commission and, soon later, assumed a prominent role as Rapporteur of the ILC work on the Fragmentation of international law,140 the fact remains that such a doctrinal state of affairs is far from been limited to the French-speaking doctrine within the continental European tradition. In fact, both national foreign-policy interests in keeping with a sound and coherent formalist approach to international law, deeply-rooted disciplinary gremialist concerns for the defense of intra-academic corporatist interests, or even, at a deeper level, the very same historical

135 Id. at 35. 136 See supra note 8. 137 Bruno Simma, Editorial 3 European Journal of International Law, 1, 2, (1992). 138Thomas Skouteris FIN de NAIL: New Approaches to International Law and its Impact on Contemporary International Legal Scholarship, 10 Leiden Journal of International Law 415 (1997) 139 Id. at 7. See, in this context, MARTTI KOSKENNIEMI, THE GENTLE CIVILISER OF NATIONS (2001) especially Chapter 4 “International Law as Sociology: French “solidarism” 1871-1950”, at 266-352. For the doctrinal French evolution after the 2nd WW, see pp. 348-352. 140 See: Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, International Law Commission, fifty-eight session, UN General Assembly, A/ CN.4/ L.682, 4 April 2006.

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evolution of Spanish international law141 in a politically environment that has suffered more than one lengthy dictatorship since the first chairs of international law where extended beyond Madrid University back in 1883, may well account for the equally reluctant attitude so far of the Spanish academy142 in regard to Koskenniemi’s heterodox and transdisciplinary work and, by extension, to the work produced by other Newstream’s authors.

4. The Spirit of Jus-Internationalists Koskenniemi’s own deep introspective journey into the archetypes that nurture the international lawyer’s own self-sustaining intellectual mythology143 permeates many of his more than one hundred published studies on international law.144 Part of Koskenniemi’s doctrinal inclassificability and the perplexity triggered by his work can, indeed, be attributed to him having become one of the single most prominent lenses through which the contemporary doctrine has become accustomed at peering itself reflected both in terms of professional identity and 141 Ignacio de la Rasilla del Moral, "The Zero Years of Spanish International Law,1939-1953" in Les doctrines internationalistes durant les années du communisme réel en Europe Ed. by Emmanuelle Jouannet and Iulia Paris, Société de législation comparée (Forthcoming, 2010) 142 As almost an exception in the Spanish academy of international law, see Forcada, El concepto de Derecho Internacional Público, supra note 12; Casanovas, La vuelta a la teoría, supra note 12; Contreras & De la Rasilla, Humanitarismo crítico y crítica del humanitarismo in DAVID KENNEDY, EL LADO OSCURO DE LA VIRTUD (Contreras & De la Rasilla, introd. & transl. 2007). For the scarce book-length work translations of Newstream’s authors works see: DAVID KENNEDY, ROMPIENDO MOLDES EN DERECHO INTERNACIONAL (I. Forcada, introd. & transl., 2002) DAVID KENNEDY, EL LADO OSCURO DE LA VIRTUD (Contreras & De la Rasilla, prel. essay. & transl., 2007), MARTTI KOSKENNIEMI, EL DISCRETO CIVILIZADOR DE LAS NACIONES (2005) DAVID KENNEDY, LOS DERECHOS DE LA PRIMAVERA. MEMORIAS DE LA INOCENCIA EN EL OCASO DE LOS DERECHOS HUMANOS (De la Rasilla, preliminary essay & transl. Forthcoming 2010) 143It is not by coincidence that the French edition of his selected works is entitled « Epilogue: L’esprit des internationalistes ». This includes three essays: Martti Koskenniemi, Entre engagement et cynisme: aperçu d’une théorie du droit international en tant que pratique 359, in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL (2007) Martti Koskenniemi, Le style comme méthode : Lettre aux organisateurs du symposium, 391 in Ibid. Martti Koskenniemi, Perceptions de la justice : des murs et des ponts entre l‘Europe et les Etats Unis, 409 in Ibid. These essays were originally published respectively in English as Martti Koskenniemi, Between Commitment and Cynicism: Outline for a Theory of International Law as Practice, in COLLECTION OF ESSAYS BY LEGAL ADVISERS OF STATES, LEGAL ADVISER OF INTERNATIONAL ORGANISATIONS AND PRACTITIONERS IN THE FIELD OF INTERNATIONAL LAW (1999); Martti Koskenniemi, Style as Method: A Letter to the Editors of the Symposium, 93 AJIL 351 (1999); Martti Koskenniemi, Perceptions of Justice: Walls and Bridges Between Europe and the United States, 64ZaöRV 305, (2004). 144 Information on Martti Koskenniemi’s academic production can be acceded through the website of The Erik Castrén Institute of International Law and Human Rights (Faculty of Law of the University of Helsinki).

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self-reassuring ethical standards. Philip Allott - an author whose work Koskenniemi holds in great (although not less critical) 145 intellectual esteem - identifies the “history of international law’s idea of itself” as one of the elements of “the intrinsic history of international law”. The “history of international law’s idea of itself” possesses - according to Allott - both an internal and an external perspective. The internal perspective is “its significance seen from the perspective of participants in the system as they act as participants in the system”. While “such a perspective is, in the first place, a logically necessary consciousness”, the internal perspective is, moreover, “an observable significance, that is to say, an idea which an outside observer may infer from the behavior of participants acting as such“ as well as, thirdly, “a psychological significance, actually present in the consciousness of participants”.146 Transforming international law’s idea of itself by breathing into the international lawyers’ “necessary consciousness” a new critical awareness through a mapping of the ambivalences and tensions that structure the profession is, indeed, part of a multifaceted normative enterprise (on which more anon) informed by Koskenniemi’s appraisal - almost an article of faith - of international law as “what international lawyers do and how they think”.147

However, despite the purported objective scope of the author’s inquiries in this area, it would be misleading to detach its results from Koskenniemi’s own personal scholarly soul-searching quest as international lawyer. The fruit of the latter scholarly journey cannot emerge but as a self-portrait that mirrors the author’s own psychological approach to a discipline, one that has recently been said to recall the “tragic optimism” of Jean Paul Sartre.148Koskenniemi’s awareness of the psychological significance of the international lawyer’s internal perspective of the intrinsic history of international law is explicitly present in his influential work as historian of the “sensibility”149 of the profession, one that he has examined through the lenses of an experimental kind of a “biographical-

145 For the deconstruction of the aesthetics of Allott’s work “as connected to a particular kind of politics, the politics of conservative revolution” (p.335) and his depiction “as not really a challenger but a continuer of a tradition that always sought new ways to articulate the basis for a universal law” (p.340), See Martti Koskenniemi, International Law as Therapy: Reading the Health of Nations 16.2 European Journal of International Law 329-345 (2005). One might interestingly contrast this view with the definition of Allott as “essentially a non-instrumental critical theorist who demands action” by Iain Scobbie, Wicked Heresies or Legitimate Perspectives? Theory and International Law, in INTERNATIONAL LAW 83-112 at 103 (Malcolm Evans, dir. 2nd, 2006) 146 Allott, Philip, International Law and the Idea of History 1 Journal of the History of International Law 1,1 (1999) 147 Koskenniemi, entre engagement et cynisme, supra note 143, at 389. 148 Jouannet, Présentation, supra note 11, at 31. 149 MARTTI KOSKENNIEMI, THE GENTLE CIVILISER supra note 5, at 1-10.

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contextual legal history”.150 One can, indeed, identify this line of inquiry below the surface of most of his intellectual production fostered by the aspiration to contribute to a more reflective and ethically self-accountable framework for international law’s professionals. Koskenniemi’s aim is that of providing the profession with a model as well as with an opportunity and a cause for engagement against what he has repeatedly considered to be “one of the problems with modern international law (…) its routinization, the absence of reflection by the profession of its embedded preferences”.151 This aspiration is apparent in his outline for a theory of international law as practice informed by “the dialectic between commitment and cynicism” which is, in Koskenniemi’s appraisal, part of the psychological reality of being an international lawyer”.152 Such a perspective has been pioneering through the pioneer experimentation with the field of law and everyday life in international law by David Kennedy.153

In displaying an intra-professional approach to international law and to its “ethos both internationalist and reformist”154as a self-perceived progressive profession, Koskenniemi translates, in this work, the structure of the international legal argument to the description of the structure of psychological attitudes of practitioners to the discipline. He does so by examining the possibilities of the relationship between theory and practice that he depicts as both inseparably linked to a “programmatic” and to a “reactive model” that is one that also implicitly replicates, at the level of the practitioners’ work, the familiar utopian v. apologist dichotomy. For the author, the “programmatic model” is entwined to an attitude of engagement, “not rational, understood as an existential decision or choice of existential character”155 to the ethos of the political reformist project of international law. The “reactive model”, by contrast, is associated with a professional culture and technique at the service of national interests. This analysis leads Koskenniemi to an exemplification of the ambivalences to which this inescapable structural psychological framework gives rise by reference to the four traditional roles of international lawyers as judge,156 as legal adviser, 157as activist,158 and as university professor.159

150 Craven, Matthew, “Introduction: International Law and Its Histories” in TIME, HISTORY AND INTERNATIONAL LAW 1-25(M. Craven, M. Fitzmaurice & M. Vogiatzi (eds), 2007 151 Koskenniemi, A Response, supra note 2, at 1007. 152 Koskenniemi, Entre engagement et cynisme, supra note 143, at 389. 153 See, David Kennedy "Autumn Weekends: An Essay on Law and Everyday Life," in LAW AND EVERYDAY LIFE, Austin e Sarat and Thomas R. Kearns (eds.) 191 (1993). See, also DAVID KENNEDY, THE RIGHTS OF SPRING.A MEMOIR OF INNOCENCE ABROAD (2009). 154 For a previous inquiry into the liberal ethos of the profession, See e.g. Martti Koskenniemi, International Law in a Post-Realist Era, supra note 114. 155 Id., at 361-366. 156 Koskenniemi, Entre engagement et cynisme, supra note 143, at 377-381.

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Beyond the acuteness, however, of the descriptive value of the portrayal of the actors of international law and the exploration of the fact that practicing international law implies to work with both or, in other words, that there is no intermediate position, Koskenniemi’s underlying aim is to warn against the dangers associated or implied by an a-critical engagement in favor of international law. This pointer, which permeates all his work, is related to a call for a critical examination of that commitment at a time, the late 90s, where the international legal order, that, for the author, is per definitionem historically contingent, was in the process of being transformed by the neo-liberal triumphalism of the first decade of the post-Cold War era. This is a phenomenon against which background in David Kennedy’s warning “our shared dreams have become a dangerous professional conceit”.160 Koskenniemi’s subversive peeling off the layers accounting for the self-perceived identity of the contemporary international lawyer is a move, also, implicitly oriented at deepening the sense of the latter’s moral duty towards the discharge of a professional task so often associated to her own deep-seated elite privileged position within the realm of what B.S. Chimni defines as the transnational capitalist class.161 Such a manner of stressing the key-importance of the internal point of view of the profession vis-à-vis external approaches, without falling, nonetheless, prey of an a-critical upholding of it appears recurrently placed in Koskenniemi’s work against the background of a specific social and historic contextualism. While this “moderated external point of view”162 to the discipline has been interpreted as an evolutionary complement of Koskenniemi’s thought from his early structuralism,163 it also marries the author’s work to a post-modernist denunciatory streak of the blinding mechanisms that operate through the very choosing of international legal discursive frameworks. Such an approach is consonant with the overall Newstream’s experimentation with inclusion-oriented frameworks in contemporary international legal doctrine. In fact, although Koskenniemi’s perspective never abstracts itself from the international legal practice, one can identify a number of works within his prolific production that do engage in a more straightforward manner with the on-going menu of current legal affairs during the latest two decades. It is precisely in those

157 Id., at 381-384. 158 Id., at 384-387. 159 Id., at 387-389. 160 David Kennedy, The TWAIL Conference: Keynote Address Albany, New York, April 2007 9 International Community Law Review 333 (2007) at 339. 161 See, e,g. B.S.Chimni, An Outline of a Course of a Marxist Course of International Law 17 Leiden Journal of International Law 1 (2004) . For Koskenniemi’s view on Marx, see Martti Koskenniemi, What International Lawyers Should Learn from Karl Marx? in INTERNATIONAL LAW ON THE LEFF: RE-EXAMINING MARXIST LEGACIES 30-52 (Susan Marks, ed., 2008) 162Jouannet, Présentation, supra note 11, at 13. 163 Id., at 25.

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instances in which his production is in immediate consonance with the traditional international lawyers’ practice of reacting to the unfolding of the main legally significant events on the international plane, when the unearthing originality of Koskenniemi’s analysis attains its maximum doctrinal impact for the commonality of the invisible college.164

Moreover, the formative and cosmopolitan professional stages traversed by him who - during a seventeen years-long career as diplomat - held, among other posts, that of Acting Director of the International Law Division of the Ministry for foreign Affairs of Finland, explains this interest for practice especially during his work in the 90s’ and explain his rejection “to be conceived as a philosopher or a legal theorist“.165His constant enriching conversational bridge between theory and practice166 has served to portray his innovative goal as that of clarifying “the practice and the discourse of internationalists”167through an “internal conceptualization of the internationalist practice”168 in order to identify its limitations, confront its technocratic deviations and nurture its emancipatory potential. The stress on the author’s cross-cultural intellectual idiosyncrasy and professional background as a practitioner, and his ensuing admonitory call to look beyond the purported mechanically intrinsic virtuous pretensions of international law into a more aware and self-exigent lucidity is addressed to a profession by reference to which the very object of the discipline is - and not by coincidence – defined. Representative of this latter type of intervention in the unfolding debates of the discipline is the author analysis of the 1996 ICJ’s Advisory Opinion on the legality of the threat of the use of nuclear weapons.169

164 For the coinage of this felicitous classic expression, see Oscar Schachter, The Invisible College of International Law Northewestern Review 217-226 (1977) as well as Oscar Schacter, Metaphor and Realism in International Law in STUDI DI DIRITTO INTERNAZIONALE IN ONORE DE GAETANO ARANGIO-RUIZ (Vol. 1) 211-216 (2004) 165 Id., at 8. For a conceptualisation of Koskenniemi as a “legal theorist”, see Beckett, Rebel without a Cause? supra note 2. 166 Including by reference to his own first-hand experience as practitioner, see e.g. his perspective on the internal functioning of the Security Council during the first Iraq War in Martti Koskenniemi, La place du droit au sein de la securité collective in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL 99 (2007), originally published as Martti Koskenniemi, The Place of Law in Collective Security 17 Michigan Journal of International Law 455 (1996) 167 Id. at 11. 168 Id. at 12. 169 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, International Court of Justice, General List No.95. Martti Koskenniemi, Faith, Identity and the Killing of the Innocent. International Lawyers and Nuclear Weapons 17 Leiden Journal of International Law 137 (1997). See in French, Martti Koskenniemi, La foi, l’identité et la destruction des innocents. Les internationalistes et les armes nucléaires in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL 145 (2007) See also Martti

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In his challenging breaking away from the dominant narrative in approaching the posited problematic, Koskenniemi’s apparition is similar to that of an anti-deus ex machina, a figure who rather than coming up with a happily deceptive solution to the plot, does enlarge and deepen the complexity of the comprehension of its previously mainstreamed logic. Although invariably premised on the previous showing of a strict masterly display of legal technique concerning the event and the examination of the legally available positions one can adopt towards it, such a display does not follow the descriptively didactic/dogmatic linearity one has come to expect from the commonality of international legal essays. Such disruption of the internal legal discursive path is exemplified by the essay at hand, one in which the author seeks precisely at demonstrating the limitations of a reason-oriented and objective international legal discourse’s ambition to escape from both passion and subjectivism that he, indeed, defines as characteristic features of the historically self-constitutive identity evolution of the international legal approach to its object. Principled aware, in methodological terms that international law is a social ideology that allows to develop an acuity of vision of certain aspects of reality while casting a shadow on others,170 Koskenniemi’s deepening and trans-disciplinary enlargement of the legal narrative171 is aimed, on this occasion, to the background of the question posed to the ICJ for the discharge of its advisory function. He sets consequently to demonstrate that the ICJ’s non liquet was the only response that “could leave room for the workings of the moral impulse, the irrational, non-foundational appeal against the killing of the innocent”.172As he evidences through an analysis of the problem of the indeterminacy of norms,173 and the paradox of norms and standards174 (both fundamental interpretative facets of his overall approach to international law) only the non recognition of the prohibition of the killing of innocents could prevent the outcome of the actual functioning of every legalization as a corruptive mechanism of law itself. Such a conclusion, accurately examined by Koskenniemi’s unstitching of the creases of legal reason is, however, but a prolegomena for a exploration of that very international legal reason in which the author again traps his audience’s cognitively hypertrophied

Koskenniemi, The Silence of Law / The Voice of Justice, in International Law, International Court of Justice, and Nuclear Weapons 488-510 (Philip Sands & Boisson de Chazournes, Eds.1999) 170 Koskenniemi, La dame fait trop de serments supra note 71, at 145. 171 A feature that distinguishes his contribution from ther rupturist, even to the extreme of reaching for counter-disciplinarity171 but admittedly not “nihilistic wing” of NAIL or not anymore nihilistic than any other’s take for that matter. For the use of the term in noting how by the culture of formalism Koskenniemi distinguishes him from “NAIL nihilistic wing”, Beckett, Rebel without a Cause? supra note 2. 172 Koskenniemi, La foi, l’identité, supra note 170, at 281. 173 Id., at 270-271. 174 Id., at 272 – 281 where the author explains it in connection with the reasoning of the Court.

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international legal mindset between the Scylla and Charybdis of his own tensional “tour de force” towards an inward self-conscious quest for attaining a form of personal innocence of knowledge. This is tantamount to the author’s own attempt at fusion, both in rational and sentimental terms, with what I define as the spirit of the beehive in international law, understood as the mythical non-space for the ever-regenerating forging of the international lawyer’s identity conceived pace Habermas as a project.

Jouannet highlights the a priori impossibility of finding a « fil conducteur » in his work that «is one that presents itself as an analysis of the internationalist practice of language, as a theory of society and politics, a critique of liberalism and modernity, as a re-interpretation of history of international law or even as an analysis of memory and truth ».175 Also exemplary of his engagement with topical issues and of Koskenniemi’s extented field of academic interests is how the author draws out the historical and dark sides of the project of international criminal justice in connection with the Milosevic trial initiated at the Hague in 2002. What he does by displaying a similar highly accurate doctrinally informed knowledge of the palette of argumentative background justifications provided to plea in favour of the desirability of international criminal justice176. Such project is conceived to oscillate ambivalently between a fight against the impunity re-shuffled by the 1990ies’ post-realist177 paradigm of the universalisation of the preeminence of the Rule of Law on the international plane (a key historically situational interpretative background facet of Koskenniemi’s work) and the risk of becoming a “show trial” that would, thereby, reinforce the vaunted truth of a hegemonic interpretation of the international world and depolitise the inherently contested political nature of the historical context within which it has taken place. In the wake of a logic geared at exporting liberal principled institutions from the domestic to the international plane, international criminal justice, therefore, appears placed between a rock (the avoidance of the acceptance of impunity as a self-inhibiting conclusion of the realists theorists pursuant to their acknowledgement that the legal process leads to a deformation of the political context) and a hard place (understood as the attempt at conciliating

175 Jouannet, Présentation, supra note 11, at 13. 176 These are respectively the due punishment of the individual after the elucidation of its personal criminal liability, its value as an instrument put at the service of the historical “truth” and “memory”, its potentially dissuasive role regarding the commission of future atrocities, its function as marking a re-starting point for the moral healing of the victims, and/or its role in allowing for a self- reaffirmation by the community as a viable “moral community”, see them threaded through the text in Martti Koskenniemi, Between Impunity and Show Trials, 6 Max Planck Yearbook of United Nations Law 1-35 (2002). Also in French in Koskenniemi, Entre impunité et procès spectacle in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL 227-263 (2007). 177 Koskenniemi, International law in a Post-Realist Age, supra note 114.

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the realist lesson of the need to integrate the context in order to avoid the danger of “show trial” and the charges of victor’s justice). Such an emplacement makes of it a doubled-edge sword in a new dramatically deepened and enlarged picture where the criminal process’ function of establishing the truth of the historical events178 acquires a land-marking significance. For all his didactically philosophical and historical perspective on the hidden face179 of one of the much vaunted developing frameworks of the international legal order since the end of the Cold War, Koskenniemi’s final assessment is, however, merely descriptive of the paradox in which international criminal justice becomes contemporarily trapped when playing its role as an instrument of historical truth180 rather than celebratory of what could, otherwise, be seen as the transgressory potential of the “différend” it engenders.181 If the previous historically didactic oriented essay might, thus, be grossly interpreted to exemplify the internal paradox created by an attempt of closing the Pandora’s box of realism with the screw top of a liberal

178 Martti Koskkenniemi, Entre impunité et procès spectacle, supra note 177. 179 Such examination is done whether by recourse to authoritative philosophical figures as Hannah Arendt in the examination of historical precedents from Nuremberg, and public opinion data regarding the sociological impact of it on the German Vergangenheitsbewältigung to the limitation of individual punishment in hiding the role of the structural factors and political and social normality in 1961 Eichman’s process and recent cases involving the fate of Vichy collaborators as K.Barbie and M.Papon judged in the 1990ies in France as well as during the first functioning years of ad hoc tribunals for the Ex-Yugoslavia and Rwanda to the examination of instances of transitional justice in the domestic plane, see Martti Koskkenniemi, Entre impunité et procès spectacle, supra note 177, at 228-238. For an inquiry into an historical related matter related to the legacy of “National Socialist" or "Fascist" legal doctrine in Europe by the author, see Martti Koskenniemi, 'By Their Acts You Shall Know Them...' (And Not by Their Legal Theories” 15 European Journal of International Law 839-851 (2004) (Reviewing DARKER LEGACIES OF LAW IN EUROPE. THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS (with a prologue by Michael Stolleis and an epilogue by JHH Weiler, 2003) 180 The author insists on the limitations of the criminal justice as an instrument of historic truth through historical examples as the one offered by the Nuremberg process in which “le régime nazi a été principalement jugé en tant que régime militaire agressif tandis que son caractère raciste et génocidaire a éte relégué à un rôle secondaire, voire invisible” (p.247). Its limitation on structural grounds are show against a procedural background that wants that “plus le contexte au sein duquel la responsabilité individuelle doit être envisagée est large, plus cette compréhension repose sur des inteprétations divergentes, et plus les limites de la procédure pénale pour établir la verité se font “évidentes” (p.238) so as to highlight how the key importance of the interpretative framework one’s adopt, makes the international criminal process the object of a différend in the Lyotard’s sense. Martti Koskkenniemi, Entre impunité et procès spectacle, supra note 177. 181 One derived by the didactic effect of the explotation of the referred différend by a Milosevic’s defence based on the notion of a “process of rupture”, which the author’s historically illustrates it by reference to cases as that of Gestapo’s member Klaus Barbie, where “la défense constitue une attaque contre le système représenté par le dossier du Procureur” (p.253) Martti Koskkenniemi, Entre impunité et procès spectacle, supra note 177.

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legal internationalist framework, this essay is far from being the single one where which Koskenniemi does engage with the double nature - as both fallacy and reality - of realism itself: an intimate conversation with the Devil’s advocate that deeply influences and marks the whole of his production.

An example of the latter is provided by Koskenniemi’s analytical efforts in the exam of the notion of collective security in the post-Cold war stage, which are oriented at presenting a critique of the pervading character of the empirical and instrumental framework of a traditional legal realism182 that cannot hide that the premises of its sociology of the international world become defined by their insertion in a normative context.183 Connected with this interest in the realm of the use of force is also the author’s examination of the influence of the instrumental core of realism over international law by means of what he defines as the deeply conservative “turn to ethics” of modern international law and its pull to introduce, in its attempt at providing international law with a more acute sense of policy-relevance, within the scope of its legal framework events that would have been considered beyond its realm during the realist mindset of the Cold War. This pull of the universalisation of the preeminence of the Rule of Law on the international plane, and its potential for generating international legal paradoxes, can be seen exemplified in the phenomenon of the deformalisation of international law.184 Koskenniemi’s own interpretation of his approach is exemplified by his tackling of the question of the legality-legitimacy of the 1999 NATO’s bombing of Serbia and the humanitarian intervention in the Kosovo’s crisis.185 This case is employed to illustrate the reaffirmation of the legal indeterminacy thesis vis-à-vis respectively a series of particular events in highlighting the essential moment in decision pace Carl Schmitt view’s “the irreducibility of the political decision to any anterior structure”186 in foreign policy even within a clearly demarcated legal

182 Koskenniemi, supra note 71. 183 Id., at 110-117. 184 See, e.g. Martti Koskenniemi, Formalismo, fragmentación y libertad. Temas kantianos en el Derecho internacional actual 2 Revista Internacional de Pensamiento Político 209 (2007) Re-published in 15 Revista electrónica de estudios internacionales 1 (2008) 185 Truthful to the previous displaying all positions available within or by reference to an strict international legal framework in this essay, the author presents a succession of eight argumentative movements traversed by the logic of the legal discourse vis-à-vis the case, from the “le droit formel strictu sensu” with its “fiat lex pereat mundus” overtones, to the demonstration of the subjective nature of the moral duty imposing itself by the adoption of a “decisionism/ethics of the responsibility (or love)” pace Weber which prevents Kosovo from becoming a precedent. Koskenniemi, La dame fait trop de serments supra note 71. 186 Koskenniemi’s deep interest in Carl Schmitt’s work is reflected at different reprises throughout his intellectual production as e.g. in Martti Koskenniemi, International Law as Political Theology: How to Read Nomos der Erde? 11:4 Constellations 492 (2004). See also KOSKENNIEMI, THE GENTLE, supra note 5, at 413-509 (2001). Jouannet consecrates a specific attention to the notion of “decisionism” in Koskenniemi, see Jouannet, Présentation, supra note 11 at 37-39 See also

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argumentative process. Also, this specific essay marks a turning point in the author’s production for the 21st century where Koskenniemi’s work will progressively evolve into as a powerful warning against the purportedly ethically oriented overstretching of international law through the association of deformalisation and - the very mala malaficiorum in Koskenniemi’s work- the instrumentalism of international law for Empire projects.

Koskenniemi’s so doctrinally vaunted defense of a “culture of formalism” - which in this essay makes its apparition as an interpretative framework in one of its earlier forms - is conceptualized, from the very onset as a strategy for taking advantage of the vulnerable point on the hegemonic position exposed by the instrumentalist-oriented “turn to ethics” so as to re-imagine international law as “a movement in favor of resistance and transgression”.187 According to Koskenniemi, in order to do so one cannot renounce, however, to the old good international legal chessboard – understood as a “flat subtanceless surface”188- because despite all the indeterminacy of its “notions and vocabularies (…) as part of a distinct professional tradition they are biased both against moral vocabularies of imperial privilege and economic techniques underwriting vocabularies privatized de facto relationships”. 189

5. The Apology of Formalism and the Formalism of Utopia Koskenniemi’s defense of a culture of formalism which, as has been noted by Jouannet, is not about « a formalist positivism, but an engaged, political and cultural formalism”,190 drives him into a deep analysis of the confrontation of anti-formalist and formalist approaches to international law. While the indeterminacy thesis constitutes the fundamental key interpretative lenses of Koskenniemi’s production in the 90ies,191 it - and its associated tropes - meet, and assemble with the paradigmatic lenses of the culture of formalism in his production during the 21st century. There is, therefore, no discontinuity or rupture

examining Carl Schmitt’s influence on Derrida and Habermas, (from which the quote is taken at 1089) Martti Koskenniemi, Book Review, 4:10 German Law Journal 1087-1094 (2003) (Reviewing PHILOSOPHY IN A TIME OF TERROR. DIALOGUES WITH JÜRGEN HABERMAS AND JACQUES DERRIDA (Giovanna Borradori, Ed., 2003) 187 Koskenniemi, La dame fait trop de serments, supra note 71, at 171. 188 Koskenniemi, A quoi sert le droit international? supra note 39. 189 KOSKENNIEMI, FROM APOLOGY, supra note 3, at 616. 190 Jouannet, Présentation, supra note 11 at 32. 191 See, in this respect, an intellectually-biographical account of the author’s approach to international law in the 90s, Koskenniemi, Le style comme méthode, supra note 143. See as representative Martti Koskenniemi, L’effet des droits sur la culture politique” in LA POLITIQUE DU DROIT INTERNATIONAL 175-201 (2007) earlier published as Martti Koskenniemi, The Effect of Rights on Political Culture in THE EUROPEAN UNION AND HUMAN RIGHTS 99 (Philip Alston,ed. 1999).

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in Koskenniemi’s work between both; no renunciation, and less oblivion of the previous acquired baggage of scientific insights which are, on the contrary, integrally transferred and applied so as to become integrated in one single, consistent and counter-intuitive emancipatory perspective of a historically contingent international law. Relying on “the emergence and operation of structural bias” - which he considers “the most significant addition to the original piece”192 - for Koskenniemi, “today’s critique will have to focus on the clash of different idioms – public international law is just one competitor among many to global authority - and highlight the way their competing descriptions work to push forward some actors or interests while leaving others in the shadow.”193

A starting point of this second stage is the historical-doctrinal genealogical study offered within The Gentle Civilizer of Nations194 on the evolution of the pedigree of anti-formalism, and its effects vis-à-vis international law in the US’ academy, from the work of realists as Hans Morgenthau and Carl Schmitt and back to its origins, “in a critique of German and French public law in the last two decades of the 19th century”.195 In this work, Koskenniemi highlights what “a culture of formalism cannot tolerate – the transformation of the formal into a façade for the material in a way that denies the value of the formal as such.”196This interest in the intrinsically configurative dichotomy of law’s instrumentalism and formalism in the context of the tradition of cosmopolitan legalism197 is present in the author’s examination of the question of what is international law for.198 Deeply aware pace Carl Schmitt pace Proudhon - and this might well be the single quotation more repeated in his writings - that “whoever invokes humanity wants to cheat”,199 Koskenniemi highlights the paradox of objectives of international law as one inherently consonant with the Westphalian foundational myth of the international legal system insofar as the latter does not impose a normative ideal external to the international society. The ensuing lack of existence of a teleologically informed international community, one whose aims should hence emerge as expression of the particular goals of the sovereign

192 Martti Koskenniemi, The Politics of International Law – 20 Years Later 20 European Journal of International Law 1 (2009), at 9. 193 Id.,11. 194 Id., at 494-509. 195 KOSKENNIEMI, THE GENTLE CIVILIZER, supra note 5, at 474. 196 Id., at 501 (emphasis in the original) 197 The book, that was granted the 2002 Certificate of Merit of the American Society of International Law, received a wide review attention, see supra note 5. 198Koskenniemi, What is International Law For? supra note 39 at 58. The very same question gave its title to the Paris 2nd Biennial Conference of the European Society of International Law, see: SELECT PROCEEDINGS OF THE EUROPEAN SOCIETY OF INTERNATIONAL LAW 2006 (Hélène Ruiz Fabri, Emmanuelle Jouannet and Vincent Tomkiewicz eds, 2008). 199 e.g. Id., at 333.

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members of the international society is consonant with the fact that those vaunted notions that are understood as aspirations of the system like international peace, security and justice “gloss over existing disagreement about political choices and distributional policies”200. Two types of problematic questions arise from Koskenniemi’s analysis of the formal law of Westphalia: those that have to do with the divergence of state’s objectives and those related to questioning of whether only state’s objectives should matter in international law. A dichotomy derives from the analysis of the first of them because in view of the non existence of a natural previous order, one needs whether to accept that the interpretative conflict over interests is consubstantial or to agree that there exists an underlying convergence between apparently contradictory interests that international law will procedurally reveal thus realizing in doing so the objective of international law. Against this background, the two very different answers provided by international lawyers to the realist theorists’ critique of international law’s ability to sustain an underlying convergence of state interests201 remains for the author of FATU of a limited explanatory value. This is so because although “responsive to different political sensibilities and different jurisprudential techniques”, nor only they often merge into each other but because, furthermore, either realism or idealism can be found permanently associated to any position or doctrine.

It is against this background that the author points out that in “a world that is there it is not one of pre-established harmony or struggle but of both cooperation and conflict simultaneously”202 for many international lawyers, international law is not devoid of a normative direction. It is possible to picture this so-conceived form of ethics as the “inner morality of law” or alternatively (but in parallel) as one that characterizes international law as a process of education and civilization through which, in relying on the principles of international law, states gradually come up with their common goals and their own identity.203 In order to grasp Koskenniemi’s argument “that there is often a 200 Koskenniemi, What is International Law For? supra note 39 at 58. 201 The first summarised general answer is responsive to the realist’s criticisms in that it does accept that power leaves a marginal place to law and appears is represented by the author as leading way to two variants respectively embodied by Carl Schmitt’s acceptance “that only a marginal scope is left by power to law and defined and existing legal regimes as variables dependent on central power” and McDougal or more recently Goldsmith and Posner who “have developed purely instrumental accounts of the use of force in the defence of particular interests or preferences” The second general answer remains faithful to its counter-design through the elaboration of a more sophisticated theory of interdependence and globalisation aimed at reflecting the idea of harmony of interests as it is the case of a constructivist explanation of the impact of international law over States. Koskenniemi, What is International Law For? supra note 39, at 60. 202 Id., at 63. 203 See this as part of the moral faith of the men of 1973 who projected international law as a professional practice in connection to a culture of formalism in KOSKENNIEMI, THE GENTLE, supra note 5 at 502

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reason to adopt a formalist view on international law that refuses to engage with the question of its objectives precisely in order to constrain those in powerful positions”,204 or, to put differently, that “international law operates – and should operate – as an instrument for advancing particular claims and agendas as well as a relatively autonomous formal technique”,205 it is crucial to examine Koskenniemi’s complementary twofold background analysis of how the Westphalian myth does not offer a truly justification of why should only state’s interests matter.

In tackling this problematic, the author stresses how despite the historical pedigree of criticisms against state centrism and the inter-statism of the international system - one which has seen itself intensified by sociological, functional and ethical critiques in a post-Cold war setting marked by Globalization and the crisis of sovereignty - the global institutional system remains attached to a Westphalian model that continually attempts to guide aspirations within its sphere of control and action. Likewise, Koskenniemi highlights how international politics linger far away from the equalitarian ideal of the Westphalian system itself. If the system remains internally dominated by the West,206 its natural realm appears, furthermore, increasingly marginalized by the informal processes and the economic, technological and cultural influxes of globalization that, under the guise of what is usually called “governance”, strengthens the political leverage of the most powerful actors vis-à-vis the weakest ones. To round off this background picture, Koskenniemi insists on how the weakest states remain awkwardly attached to a conservative defense of the attributes of sovereignty that only undermines new avenues for non-conformist trans-governmental actions emanated from the evolution of the international civil society brought about by globalization. This is the backdrop that allows Koskenniemi to note that while “there is room for conflict and consensus both within and beyond the Westphalian system and little political worth lies in deciding a priori in favor of either”207 there is, equally, reason to defend a legal formalism that can help remove “the question of “what is international law for? from the context of legal routines to the political arenas where it can be used to articulate claims by those who are sidelines from formal diplomacy and informal networks”.208

204 Koskenniemi, What is International Law For? supra note 39, at 64. 205 Koskenniemi, What is International Law For? supra note 39, at 63. 206 as e.g. exemplificatory evidenced by the author in the determination of what counts as a crisis in the world – the global war on terrorism after the 3000 deaths of NY and Washington vis-à-vis the 6 millions children dead by malnutrition. 207 Koskenniemi, What is International Law For? supra note 39, at 63. 208 Id., at 64.

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Against this international realist sociological background, the author’s defense of a “culture of formalism” appears, therefore, grounded on a detailed comprehension of both the power and the dark sides of instrumentalism understood “a pragmatism that views international law only in terms of the immediate objectives it serves”.209 The power of instrumentalism lies in its appeal to the law’s raison d’être or, if preferred, in the consubstantially instrumental logic of law that magnifies the instrumentalist interpretative role of formal law over the perceived ineffective form of the law in a manner that allows to attain “legal” aims as they do fit the interests of an instrumentalist oriented interpreter. Moreover, the power of instrumentalism rests upon a strong historical critical tradition and the inherent call for transformation that anti-formalism - earlier defined in Koskenniemi’s work as a “culture of dynamism”-210 has traditionally channeled as a move towards pragmatism to support a dynamic political change that has generally been championed against a pejoratively conceived static formalism. For Koskenniemi, the dark side of the instrumental appeal is the non-stoppable logic that drives it towards the enthroning of an instrumentalist mindset that “creates a consistent bias in favor of dominant actors with many policy alternatives from which to choose and sufficient reasons to carry out their objectives”.211As such, in “its permanent look for reasons, instead of rules”, instrumentalism risks becoming the ultimate betrayal to “the political significance of formal law”, the definitive undermining of its role as expression of “the universalistic principle of inclusion at the outset (which makes) possible the regulative ideal of a pluralistic international world”.212

The political importance that Koskenniemi ascribes to legal form as a “flat substance-less surface” - one that explains why for Koskenniemi one of international law’s objectives “is always international law itself” - 213 does not prevent him, in his defense of the virtues of formalism, to highlight the lineage of formalism as a mechanism traditionally reflective of a status quo supportive of particular interests and privileges. Indeed, the author goes on to note that, as a way of advancing “the repertory of substantive values, preferences and practices that those in dominant positions seek to realize in the world”,214 formalism can be seen as an ally of the powerful. Therefore, presuming his likely agreement with one of Rousseau’s most famous saying - “the strongest is never strong enough to be always the master, unless he transforms strength into right, and obedience into

209 Id., at 64. 210 KOSKENNIEMI, THE GENTLE, supra note 5 at 496. 211 Koskenniemi, What is International Law For? supra note 39, at 66. 212 Id., at 69. 213 Id., at 77. 214 Id., at 77.

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duty” - 215 Koskenniemi’s culture of formalism is not one that ignores that “as a historical matter, (formalism) has often provided a recipe for indifference and needs to be accompanied by a live sense of its political justification”,216 or, to put it differently, that “a formalism sans peur et sans reproche is not longer open”.217

It is, therefore, key in Koskenniemi’s assessment,218 that despite the existence of “a constant push and pull in the professional world between a “culture of instrumentalism” and a “culture of formalism“219 and the fact that both the respective logic of instrumentalism and formalism behind the Rule of Law are under-determinate,220 the practice of formalism - one which “cannot be reduced to a jurisprudential doctrine” - 221 is a “regulative ideal”222 in which “decisions invoke as their justification, and thus offer as valid points of criticism, an idea of international community beyond sectarian interests or preferences”.223 In acknowledging that the object of law’s intrinsic instrumentality “cannot be fixed outside the political process of which it is an inextricable part“224 Koskenniemi distinguishes his perspective from the instrumentalist indifference to the fact that “law itself – independently of the objectives projected upon it- has authority”. This authority comes from a language of community standards that the community recognizes as its own because of the aspirations of universality embedded - not in objectives appropriated as such within a process of hegemonic contestation staged in the “flat substance-less surface” of law - but in the legal form itself which is “a space for something beyond the merely particular”225 that justifies the existence of international law “as a promise of justice”.226 Such is therefore, here grossly synthesized background, the background perspective that explains how for Koskenniemi “universality (and universal community) is written in the culture of formalism as an idea (or horizon) unattainable but still necessary”

215 JEAN JACQUES ROUSSEAU, THE SOCIAL CONTRACT (1762) 216 Koskenniemi, What is International Law For? supra note 39, at 77. 217 KOSKENNIEMI, THE GENTLE, supra note 5, at 495. 218 That he - truthful to his style - constantly illuminates and enriches each theoretical assertion by recourse to a varied exemplifying international legal practice. For one of the latest example of an extremely accurate analytical use of varied recent international legal practice, see Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics 70 Modern Law Review 1-30 (2007). 219Koskenniemi, What is International Law For? supra note 39, at 77. 220 Id., at 72. This is to say, the objectives of the instrumental logic always lead to a number of possible choices, the form of law is always realized in particular rules or decision that always institute a bias in favour of some substantive preference. Id., at 71. 221 KOSKENNIEMI, THE GENTLE, supra note 5, at 504. 222 Koskenniemi, What is International Law For? supra note 39, at 70. 223 Id., at 72. 224 Id., at 77. 225 KOSKENNIEMI, THE GENTLE, supra note 5, at 501. 226 Koskenniemi, What is International Law For? supra note 39, at 77.

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and how “in the gap between positive law and justice lies the necessary (and impossible) realm of the politics of law”.227

6. From the Iraq War’s Debate to the Constitutionalist Revival

Contextually part of the author’s contribution to the extensive debate on the deep doctrinal transatlantic divide that surged in the aftermath of 11-9 and the US’ led invasion of Iraq,228 the “culture of formalism” championed by Koskenniemi has known an important doctrinal echo. Parallel to the author’s constant analysis of the profession, is his inquiry of the different perceptions of justice by European and international lawyers and its effects on their respective approach to international law. Koskenniemi analyses the current confrontation of the European and US’ models in terms of two different perceptions of international justice born out of the testing of two diverging universalistic perspectives of their own respective relation with the external other. This leads respectively to two broadly defined psychological international legal types; the first, an instrumentalist approach to law animated by a missionary zeal in its desire to find - and if necessary to impose - a self-identifying mirror in the other; the second, a formalist approach to law inspired by the disengaged reaffirmation of one’s identity through which the other’s identity is restored.229 If for the first of them, “« legalization » is a policy-choice, not an a priori moral commitment”,230 but instead just another instrument within the available tool-kit for the pursuit of an universal imperial drive, for Koskenniemi those representing the second approach are « default universalists ». 231 These “default universalists”, while prone to the “positivism of fear”232 and masters in the drafting of “contracts of mutual indifference”,233 are also the administrating heirs of a wisdom of prudence that, by weaponizing the invincible defeat of formalism, might well embody the promise of a more inclusive form of republican activism.

This antagonistic framework sees itself further developed through the preliminary assimilation, for testing purposes, of the European approach with the project for unity, the ascending project of an international community identified with law and institutions. This assimilation accompanies the identification of the US’ model with the project for diversity, the descending project that channels unconditional sovereign freedom as an instrumental vehicle to serve a morally

227 Id., at 78. 228 See among others: Martti Koskenniemi, The Empire(s) of International Law: System Change and Legal Transformation 8 Austrian Review of International and European Law (2004) 229Koskenniemi, Perceptions de la justice, supra note 143. 230 Id., at 413. 231 Id., at 415. 232 Id., at 416. 233 Id., at 418.

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inspired 234 national interest. The latter position is epitomized by two neoconservative legal thinkers like Goldsmith & Posner’s “rational choice”. This position is interpreted to predicate a form of hegemonic contestation unconstrained by formalism thanks to a progressive turn to “a political science inspired language of governance, regulation, compliance and legitimacy”235 that allows to determine what actors should think of as “in their interests” in the first place”. Part of a general trend that Koskenniemi defines as a “managerial mindset”,236 and its related jargon of effectiveness, optimization and compliance, Goldsmith & Posner’s state-centric “general theory of international law” pretends to identify the limits of international law by arguing that international law is a product of self-interest, or to put differently an endogenous outgrowth of individual state interests, and not an exogenous constraint on state behavior that could run contrary to the state’s interests embodied by the preference of their government leaders. These authors portray their approach as representative in generational terms “of how the standards of analysis are shifting in international legal scholarship”237and argue that nations do not comply with international law for non-instrumental reasons, whether grounded on “a sense of obligation to comply (opinio iuris), the so-called international law’s normative pull, or the absorption of international law into one’s nations internal values”.238 234 On the normative basis of the realist framework, see Koskenniemi, A quoi sert le droit international? supra note 39, and Koskenniemi, La place du droit, supra note 71. 235For a critique see Martti Koskenniemi, Legitimacy, Rights and Ideology: Notes Towards a Critique of the New Moral Internationalism, 7 Associations Journal for Legal and Social Theory 349 (2003), 349. The author does make it extensive to his analysis of “legal pluralism as an abstract response to the emergence of multiple regimes” in Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics 70 Modern Law Review 1-30 (2007) at 20-25. 236 Koskenniemi, Formalismo, supra note 175. 237 Id., at 466 238Jack L. Goldsmith& Eric Posner, The Limits of International Law (2005) This work has received a high level of critical review attention, including but not limited to the symposium on Jack L. Goldsmith and Eric A. Posner’s The Limits of International published by The Georgia Journal of International and Comparative Law, Vol.34., No.2, 2006 pp. 289-484 including the following: Kenneth Anderson, Remarks by an Idealist on the Realism of the Limits of International Law 253-284; Daniel Bodansky, International Law in Black and White, 285-304; Allen Buchanan, Democracy and the Commitment to International Law, 305-33; David Golove, Leaving Customary International Law Where It Is: Goldsmith and Posner's the Limits of International Law 333-379; Andrew T., Guzman, Reputation and International Law, 379-392; Margaret E. McGuinness, Exploring the Limits of International Human Rights Law, 393-422; K.Raustiala, Refining the Limits of International Law, 423-444; Peter J. Spiro, Negative Proof of International Law, 445-462; Goldsmith, Jack, Posner, Eric A New International Law Scholarship : A Response,463-484. Besides them, see also e.g. Anne, Van Aaken “To Do Away with International Law? Some Limits to the “The Limits of International A New International Law Scholarship : A Response. 34 Georgia Journal of International and Comparative Law 463, 464 ( 2006). Law” in European Journal of International Law, Vol. 17, No. 1, pp. 289-308, 2006.

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This is a clear exemplification of what Koskenniemi interprets as “a hegemonic move on the part of international relations experts as an effort to occupy the voice of normativity previously held by lawyers”.239 For Koskenniemi “there is undoubtedly something right in such analysis”240of unity vs. diversity241 that is one that captures “the logic of (American) nationalism: the unquestioned authority of my (liberal democratic) country as the sole normative standard”, 242 independently of whether it represents a “rational empire” or a “cynical empire”.243 Yet - he argues - it is “much harder to accept the (conservative) characterization of Europe as the representative of international law against American hegemony”.244 Faithful to his indeterminacy thesis - according to which “there is not substantive legal system that could be distinguished from unilateral assertions of power”245 - instead of approaching international law as strictly opposed to hegemony, Koskenniemi discusses it as a “hegemonic technique” through its characterization as a “process of articulating political preferences into legal claims that cannot be detached from the conditions of political contestation in which they are made”.246 In this process of “hegemonic contestation”, that derives from the acknowledged “paradox of the objectives of international law”, 247 the “objective of the contestants is to make their partial view appear as the total view, their preference seem like the universal preference”.248 Hathaway, Oona, A,. Lavinbuk, Ariel, N. “Rationalism and Revisionism in International Law” 119 Harvard Law Review 2004,pp. 1404. See, among the many book reviews a) Jibecke Jönsson and Jean-Marc Coicaud’s book review of The Limits of International Law, Jack L. Goldsmith and Eric A. Posner. Oxford, New York: Oxford University Press, 2005 at Global Law Books accessible at http://www.globallawbooks.org/reviews/getFile.asp?id=209 (last visited 15th August 2007); b) Rajagopal, Balakrishnan , "Review of 'The Limits of International Law' by Jack Goldsmith and Eric Posner" . Ethics and International Affairs, Vol.19, No.3, pp. 106-109, Fall 2005; c) Silverburg, R.,Sanford Review of The Limits of International by Jack Goldsmith and Eric Posner, Law and Politics Book Review Vol. 15 No.4 (April 2005), pp.336-339 accessible at http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/goldsmith-posner405.htm (last visited 25th August, 2007) 239 Koskenniemi, The Fate of Public International Law, supra note 82. 240 Martti Koskenniemi, International Law as Political Theology: How to Read Nomos der Erde? 11:4 Constellations 492, at 505 (2004). 241 Especially, if the catagorised as American Nationalist School of International Law as depicted by Lorite Alejandro Lorite, Cultural Relativism the American Way: The Nationalist School of International Law in the United States 5 Global Jurist 1 (2005; becomes the “neo-conservative theory of international law”, Ignacio de la Rasilla, Apuntes Críticos para una teoría neoconservadora del Derecho internacional 18 Révue Québécoise du droit international 1 (2008) 242Koskenniemi, International Law as Political Theology supra note 240, at 506. 243 Id., at 505. 244 Id., at 506. 245 Id., at 506. 246 Id. at 205. 247 See, Koskenniemi, What is International Law For? , supra note 39. 248 Id.

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Against this background, the author consequently stresses that “because neither sovereignty nor world community has any fixed content the choice between the two” – defined as hegemonic in their aspiration to project their preference as the universal preference - “cannot be made as a principled commitment, only as hegemonic strategy.”249. After presenting an exemplificative account of five great issues – force,250 fragmentation,251 commerce,252 human rights,253 globalization254- where political choices are currently articulated in legal claims in order to show how “ although international law, in this way, is a hegemonic politics” 255 and that, as a consequence, there is not “much reason to expect international law to play a more beneficial role in the future than it has played in the past”,256 it remains nonetheless “ a form of politics that has some particular virtues “.257 This is so because - consonant with the interpretative framework of the culture of formalism - “in law, benefits and burdens that belong to particular individuals or groups are universalized by reference to membership rules».258 Thus, for Koskenniemi, the respective archetypically conceived American and European paradigms vis-à-vis international should be seen as embodiments of a form of “différend” in the Lyotard sense, which can only be profitably tackled “in pragmatic terms as a series of questions about the legitimacy and effectiveness of present domestic and international institutions”.259

The author does not deny that the manner in which the neoconservative branch260of the “managerial mindset” displays its doctrinal legal positions (whether in the inner realm or constitutional law, border realm, or the outer realm - foreign policy- 261, but always in line, or even furthering the official positions adopted by the late Bush Jr. administration), can be generically portrayed as the contemporary paradigm of an hegemonic legal strategy. Yet, Koskenniemi’s definition of the controversy in terms of hegemonic contestation allows him to

249 Id. 250 Martti Koskenniemi, International Law and Hegemony : A Reconfiguration 17 Cambridge Review of International Affairs 117 (2004) Also in Martti Koskenniemi, Droit international et hégémonie: une reconfiguration in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL 291, at 300-304 (2007) 251 Id., at.304-306. 252 Id., at 306-308. 253 Id., at 309-313. 254 Id., at 313-317. 255 Id., at 319. 256 Id., at 317. 257 Id., at 319. 258 Id., at 319. 259 Koskenniemi, International Law as Political Theology, supra note 240, at 507. 260 Analytically interesting is in this respect Guglielmo Verdirame “The Divided West”: American and European International Lawyers’ 18 European Journal of International Law 553-580 (2007). 261 See Lorite, supra note XXX and De la Rasilla, Id.

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uniquely distance his position from the European pretension – both archetypically and antagonistically conceived - of representing the ultimate embodiment of international law or - at least, the world’s last best hope262 of it - in “a lawless world”.263 Koskenniemi’s approach to the constitutionalization of international law – lately uphold by Jurgën Habermas at a time and age witnessing the advocacy of the “liberal ethos of a superpower as an alternative to law”-264 dramatically widens the gap between his own perspective, and the latter pretension. Yet, even a sketched view of Koskenniemi’s perspective on the European trend in favor of constitutionalization of international law265 cannot be judged without placing it, not only “as a reaction against (…) “Empire” 266-, but, also, against both forms of mutually reinforcing functional differentiation, otherwise “fragmentation and deformalization”.267 One needs to go back again to the flight from diplomacy and politics as the insufflating ethos of international law, and the effects that has it triggered in a politically favorable environment of a post-Cold War era defined as post-realist age in order to briefly examine why Koskenniemi’s arguing for a “culture of formalism” as a progressive choice” - with the proviso that “whatever virtue this might have, it must be seen in historical terms”-268 can barely be interpreted as having set the ground for an appraisal according to which “legal post-modernism had begun by a critique of a positivist and objectivist understanding of international law, only to embrace it by the end as the only means against neoliberal politics”.269 The latter appraisal is not merely grounded (as noted by A.Wendt) on the fact “positivism is the other to critical theory’s self”,270 but also due to Koskenniemi’s own understanding of the notion of the “constitutional mindset”.

262 See in this respect Koskenniemi’s commentary to the respective reactions to 11/9 of two “distinctly European thinkers” who are also the main representatives of Critical Theory and Deconstruction in the academy: Martti Koskenniemi, Book Review, 4:10 German Law Journal 1087-1094 (2003) (Reviewing PHILOSOPHY IN A TIME OF TERROR. DIALOGUES WITH JÜRGEN HABERMAS AND JACQUES DERRIDA (Giovanna Borradori, Ed., 2003) 263 PHILIPPE SANDS, A LAWLESS WORLD (2OO5) 264 Jurgen Habermas, “Does the Constitutionalization of International Law Still Have a Chance?” in JURGEN HABERMAS THE DIVIDED WEST 115, 116 (Ciaran Cronin, Ed. and transl.,2006) 265 See also Ignacio de la Rasilla del Moral “The Unsolved Riddle of International Constitutionalism” International Community Law Review (2010, forthcoming) 266 Martti Koskenniemi, Constitutionalism as a Mindset: Reflection on Kantian Themes About International Law and Globalisation, 8 Theoretical Inquiries in Law (2007) 267 Id. 268 KOSKENNIEMI, FROM APOLOGY, supra note 3, at 616 269 Andreas L. Paulus, International Law After Postmodernism: Towards Renewal or Decline of International Law?, 14 Leiden Journal of International Law 727 (2001), 270 Alexander Wendt, What is International Relations For? Notes for a Post-Critical View, in CRITICAL THEORY AND WORLD POLITICS (Richard Wyn Jones, ed., 2001)

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Koskenniemi supports the potential of constitutionalism in international law as a disciplinary opposition to the managerialist’s attempt at changing the vocabulary of international law into “coordinating governance through empirical political science”.271 To appreciate the full implications of the problematic the latter brings with it (and how neither a theoretical substantive constitutionalisation nor a formal constitutionalisation of international law constitutes an alternative to it but, as legal pluralism itself, only represent “matters of narrative perspective” in Koskenniemi’s view),272 it is necessary to refer back to how, in the author’s appraisal of it, such managerialist pull has benefited from the international legal new stage brought about by the effect of “thinking of international law in apolitical and technical terms“. 273

This should be done against the background of the post-Cold War’s hopes put on the spreading of international law on the global stage, in other words, the emergence, as a consequence of the spread of international institutionalization, of multiple specialized regimes, and how its consequences - fragmentation and deformalisation – have favored the transformation of international law into “a technique of governance”.274 Koskenniemi examines “how especially European international lawyers have sought to combat this through the vocabulary of constitutionalism” conceived as a response to how public international law has been “sliced up into regional or functional regimes that cater for special audiences with special interests and special ethos”275“broken down into boxes, each of them (…) solipsistic and imperialistic.”276 However, Koskenniemi does not project much faith neither on the possibilities of either a substantive constitutionalism as “if fragmentation and deformalization have set the house of international law on fire, grasping at values is to throw gas on the flames”,277 or on what he considers to be “a more plausible” formal constitutionalism. As for the formal variant of constitutionalism is concerned, the one suggesting that “no special regime has ever been understood as independent from general law“278, he recalls that “the agreement that some norms simply must be superior to other norms is not

271 Martti Koskenniemi, The Fate of International Law, supra note 82, at 29. 272 Id., at 25. 273 Id., at 29. 274 Id., at 30. 275 Martti Koskenniemi, International Law: Constitutionalism, Managerialism and the Ethos of Legal Education 1, at 2 European Journal of Legal Studies (2006) 276 Id., at 4. 277 Koskenniemi, International Law: Constitutionalism, supra note 274, at 5. 278 Id., at 5. This is confirmed by the ILC Report on “Fragmentation” prepared by Koskenniemi that stressed that “international law is a legal system” See: Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, International Law Commission, fifty-eight session, UN General Assembly, A/ CN.4/ L.682, 4 April 2006.

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reflected in any consensus regarding who should have final say on this”, 279 or to put differently, “that there do not exist definitive hierarchies to resolve conflicts between such regimes”.280

Against the background of his analysis of the lack of plausible alternatives to the transformation of international law into a global governance ruled by a “managerial mindset” in which “international law is conceived as a professional technique for the management of values, purposes, ideals,”281 Koskenniemi has retraced his own “critique of values and purposes drawing attention to their conflictual and indeterminate nature, and to the hubris involved in thinking they could rule the world”,282 to the core of Immanuel Kant’s “attack on both the empirically oriented natural law of Pufendorf (…) and the abstractions of Wolffian scholasticism”283“against which Kant conceived universal law in the first place”.284 From the contemporary inescapability of a “managerialism that thinks of the legal judgment as a product of regime rationality, and thus one attributable to the institution or technique”,285 Koskenniemi pace Kant argues for “law as a mindset with which the law-applier approaches the task of judgment within the narrow space between fixed textual understandings (positivism) on the one hand, and predetermined functional objectives (naturalism) on the other, without endorsing the proposition that the decisions emerges from a “legal nothing” (decisionism).286 Koskenniemi’s defense of what defines as the “spirit of the legal profession”287 and the necessary distance “from the preferences expressed on the conflictual nature of the boxes available (…) and the indeterminacy of each of those boxes” that are understood as “more or less firmly rooted vocabularies, preferences institutionalized as part of what lawyers do”,288 and the concomitant lawyers’ personal responsibility “to seek to encompass the whole” is in line with the author’s understanding of the international law’s project as a “practice of moral politics”.289

Once Koskenniemi’s recent articulation “of the case for the constitutional mindset that is not a priori bound up with any determinate institution, a mindset building on a tradition understood from a Kantian perspective as a project of

279 Koskenniemi, International Law: Constitutionalism, supra note 274, at 7. 280 Id., at 7. 281 Id., at 12 282 Id., at 13. 283 Id. 284 Koskenniemi, The Fate of International Law, supra note 82, at 28. 285 Koskenniemi, International Law: Constitutionalism, supra note 274, at 14. 286 Id., at 15. 287 Id.,at 15. 288 Id.,at 16 289 Id.,

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freedom”,290 is placed against its corresponding background debate, it appears more clear why Koskenniemi claims today to “totally approve of the political move to re-define the managerial world of international institutions through constitutional or administrative vocabularies – not because of the intrinsic worth of those vocabularies, however, but for the critical challenge they pose to today’s culture of a-political expert rule, and perhaps for the appeal of the (Kantian) perfectibility that they set up as a regulative goal for human institutions”.291 Yet, as the author has also suggested “the call for constitutionalisation we hear in Europe today may give direction to an anti-imperial Left political programme – but it may equally well consolidate types of authority that seek to perpetuate Europe’s comparative advantage”292. Indeed, the positivist constitutionalist international law’s self-constitutive bias towards community-order finds itself contemporarily criticized with special relevance in the contemporary constitutionalist debate in terms of an international law’s bias against the Third World. There exist, therefore, a main focus of contemporary doctrinal tension between those who see that contemporary international law is, and continues to be, shaped by the colonial encounter and post-colonial re-encountering, and those who minimize this phenomenon from the perspective of the contemporary constitutionalist-oriented “school of the international community” in defending that the “universality of international law was reached” with “the advent of self-determination and its factual realization”.293

Thus, although the author’s latest Kantian historical oriented latest published work294 seems to indicate the progressive establishment of a firm scholarly setting ground for his awaited prequel of The Gentle Civilizer of Nations,295 this should not obscure the fact that Koskenniemi’s position in this controversy cannot be separated from his assessment that “by focusing on war and great crises—the great power perspective—international law will continue to be implicated in the marginalization of problems that touch by far the greatest and the weakest part of the world’s population”.296 Koskenniemi’s non-conformist perspective on the ultimate status quo brought up by the system, as well as his conception that “the fate of international law” is that “of re-establishing hope for

290 Martti Koskenniemi, Constitutionalism as a Mindset, supra note 265, at 23. 291 Koskenniemi, supra note 30, at 17. 292 KOSKENNIEMI, FROM APOLOGY, supra note 3, at 616. 293 See Tomuschat supra note 278. 294 Martti Koskenniemi, Constitutionalism as a Mindset, supra note 265. Koskenniemi, International Law: Constitutionalism, supra note 274 at 14. Koskenniemi, The Fate of International Law, supra note 82, at 28. Martti Koskenniemi, Formalismo, supra note 175. 295 MARTTI KOSKENNIEMI, THE HUMAN UNIVERSAL: LEGAL THOUGHT AND INTERNATIONAL POLITICS 1500-1870 (forthcoming) 296 Koskenniemi, Droit international et hégémonie, supra note 73, at 318.

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the human species”297 as well as his stress on the need “to redeem international law as a political project“298 will allow us one to dwell briefly back in fine to the normative scope of Koskenniemi’s intra-disciplinary attention to the “spirit of the ius-internationalists”.

The author’s original aim of injecting a critical self-awareness in the spirit of jus-internationalists, 299 to demystify a discipline, because as has been rightly noted “of all legal disciplines, international law might be the one area where this uncritical embrace of the law holds most true,”300 has found a nurtured soil as well as a fundamental ally in the emergence and development of a critical Newstream of scholarship in recent decades. Such Newstream’s regenerative flux is consonant with Koskenniemi’s diagnose of how, in trying to overcome the fact that when “compared with the sophisticated techniques of domestic law, international law seemed primitive, abstract, and above all political, too political”,301 international law might be dying from the success of its drive for technicality. Attempts to address the evolution of a mass of critical legal scholarship, retraceable to the 80ies in the US’, have explanatory taken the path of dividing it in an internal or epistemological and an external or normative trend.302 Such a tendency has continually been counteracted by critical legal scholars themselves. These scholars have regularly considered “that anchoring Newstream writing to the label and practices of NAIL for too long would ultimately defeat its objectives”.303 This perspective is shared by Koskenniemi who, although acknowledging that his own work might be classed under the banner of New Approaches to International Law (NAIL), considers that “in fact new writing in the field was so heterogeneous, self-reflective and sometimes outright ironic that the conventions of academic analysis about “method” would inevitably fail to

297 Koskenniemi, The Fate of International Law, supra note 82, at 30. 298 Id.,at 29. 299 This aim is present since its origins in From Apology to Utopia where it is explicitly noted that “by providing an insider’s view to legal discourse, such an approach might produce a therapeutic effect on lawyers frustrated with their inability to cope with the indeterminacy of theory and the irrelevance of doctrine”, Koskenniemi, supra note 3, at 13. 300 Mario Prost, Born Again Lawyer, supra note 2. 301 Koskenniemi, The Fate of International Law, supra note 82, at 1 302 The tendency appears initiated by J.H.H. Weiler and Andreas Paulus, The Structure of Change in International Law or Is There a Hierarchy of Norms in International Law? 8 European Journal of International Law 545-565 (1997). See also Paulus, International Law After Postmodernism, supra note 8. Jean Pierre-Cot, Tableau de la pensée juridique américaine 3 Révue Générale de droit international public, 587-589 (2006) and Bachand, La critique en droit international supra note 2. See also Anne Peters, There is Nothing More Practical Than a Good Theory: An Overview of Contemporary Approaches to International Law 44 German Yearbook of International Law 25-37 (2001) 303 Skouteris, Fin de NAIL, supra note 13, at 417.

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articulate its reality”.304 It suffices to recall Koskenniemi’s disputatio of the liberal design of the “shopping-mall approach” of the symposium on the Methods of International Law organized by the American Society of International Law that “flattens out difference and neutralizes critique”305 so as to stress “its dangers, discontinuities and mechanics of exclusion”.306 In his letter to the organizers, Koskenniemi highlighted the new challenges posed by the non-scalability of subjectivity in confronting a practitioner’s work where a “contextually dependent style – and not a legal method, bracket(ing), therefore, the question of law referential reality”307- imposes its unavoidable reductionism to the pretension that resolutions to social problems can be derived from legal theories.

The label of New Approaches to International law308 was initially described by Kennedy in 1988 in reference to his own work as one that “borrow from recent linguistic and literary theory and from the work of contemporary critical legal scholarship – which has itself drawn on the European legal traditions of structuralism and post-structuralism – in order to reformulate the relationship between law and politics in rhetorical terms”.309 This project got gradually constituted around a series of conferences and academic events and has overlapped with a number of other projects including “Third World Approaches to International Law”, “International Legal Feminism”, the “Feminism, Law Sexuality and Culture project” (FLASC), “the New Approaches to Comparative Law Project”, the “Poscolonialism and Sexuality Project”310 as well as a number of fields and strands of research as international legal history, international economic law and regulatory policy, critical race theory, rethinking of human rights, new social movements, a resurgent of interest on Marxian perspectives on international law, law and development.311 It would go beyond the scope of this work to analyze the unfolding of the evolving conforming doctrinal moves of Newstream, whether under the light of a number of explanatory set of conceptual, methodological and strategic levels of challenges312 towards traditional understandings of international law. There is no space either to highlight enough 304 Koskenniemi, Le style comme méthode, supra note 143, at 392. 305 Id., at 393. 306 Id., at 407. 307 Id., at 407. 308 For precedents of the US’ lineage of the counter-traditional spirit in terminological coincidental terms, see examining the main methodological orientations in the United States’ academy as being policy science, functionalism, systems theory and phenomenological perspectives: Richard A. Falk New Approaches to the Study of International Law 61 American Journal of International Law 477-495 (1967). 309 Kennedy, A New Stream, supra note 12, at 7. 310 See with corresponding bibliography. David Kennedy, The Disciplines of International Law and Policy 12 Leiden Journal of International Law 9 (1999) at 15 311 See the representative diagram appearing in Id., at 36. 312 Cass, Navigating the Newstream, supra note 8.

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its contribution to the development of a number of critical-oriented trends as that of Third World Approaches of the so-called second generation (or TWAIL II) with so gifted authors as B.S. Chimni, Antony Anghie and J.G.Ghattii or its contribution to new fields of doctrinal interest like than embodied in the historic turn of the discipline.313 It might suffice to stress that the spread of critical scholarship has greatly contributed to the democratization of international legal scholarship “through its opening to the most recent developments in philosophy, anthropology, social sciences or historiography” as an attempt to progressively filling-up ”the void created by pragmatism”. 314 In doing so, NAIL and associates has also greatly contributed to the democratic responsiveness of the international legal project315 that is an aspect that is in deep consonance with Koskenniemi’s defense of a culture of formalism “premised on a need for democracy’s constant expansion”.316

7. Conclusion In the same manner as nothing might turn to be more intellectually untrue that Isaac Newton’s remark according to which Pigmaei gigantum humeris impositi plusquam ipsi gigantes vident317or as, similarly noted by Samuel Coleridge, that "the dwarf sees farther than the giant, when he has the giant's shoulder to mount on",318 nothing could be, indeed, more damaging to the accuracy of the perception of Koskenniemi’s work than relying on any argumentative sketch as the one here presented. Although, perhaps, loosely indicative as a launching pad for the neophyte, the former does not amount, but to a grossly scratch on the surface of the author’s work, a telegraphic interpretative synthesized version of the solid extreme richness of his complex interpretative lenses and of the didactically emancipatory value of his intra-legal trans-disciplinary approach to contemporary international law. The lucid spiritual strength of Koskenniemi could not have, furthermore, be possibly captured in an explanatory sham account of it. If the only truth remains that spirit does per definitionem still happens to transcend the realm of pure reason, Koskenniemi’s opus is permeated by that despaired committed

313 See: Martti Koskenniemi, Why History of International Law Today? 4 Rechtsgeschichte 61-66 (2004) 314 Galindo, Martti Koskenniemi and the Historiographical Turn, supra note 5, at 10. 315 “The more there are alternative ways of looking at international law, the more democratically responsible the international law project might become” as noted by Akbar Rasulov, International Law and the Post-Structuralist Challenge 19 Leiden Journal of International Law 799-827 (1996) at 821 316 KOSKENNIEMI, THE GENTLE, supra note 5, at 506 317 ISAAC NEWTON CORRESPONDENCE TO ROBERT HOOKE (February 5, 1676) 318 SAMUEL COLERIDGE, THE FRIEND (1828)

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form of ultimate grace that one may only find intellectually associated with love itself.319

For each and every international lawyer, therefore, his own personal appointment - and now, also, rendez-vous -320 with testing at the level of its inner own conscience the impact that an immersion on Koskenniemi’s work might well have on her own identity as a legal scholar, one that the author pace Habermas understands as a project.321 This, as every inner transformative experience, would do well to be lived and not attempted to be immediately judged against one’s own parameters of previous comprehension of the discipline, or set against the mean calculus of one’s own acquired intellectual gains. As the author himself notes in disputing the shopping-mall approach to the methods of international law, “style is method”, and his, independently of every brilliant deconstruction in a set of useful interpretative principles and axioms one might come of it, is bound to enshrine itself - for his attentive reader - at a deeper subconscious level independent of any voluntary thirst of emulation. Against the successfully challenged background of the dogmatic theology of a reason-oriented and objective international legal discourse that the author throws as a broken toy into a vertiginous ever-rising unveiling of the lucid complexity of adopting any legal positioning, the previous disparate notes have not, therefore, pretended to have reflected but the personal torn veiled remnants of the inner picture that a reader’s ticket to a selected part of the work of one of the fundamental international lawyers of the end of the 20th century and early stages of the 21st century may provide.

Koskenniemi quotes Rousseau’s famous saying “l’homme est né libre, et partout il est dans les fers”322 and his work acts, indeed, as a powerful acid to dissolve the intellectual chains that tie the contemporary international lawyer’s mindset. Yet, the truth remains that most of men freely chose to tie themselves with chains and that, to that rule, international lawyers are not exception. Yet, no final crude assessment of the actual impact of the author’s academic inner quest to emancipate the international lawyers’ psychological approach to the object of

319 A word rarely found in international law writings, but consistently used in his work by the author himself Martti Koskenniemi, Les droits de l’homme, la politique et l’amour in MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL 203-224 (2007). Originally published as Martti Koskenniemi, Human Rights, Politics and Love, 19 Nordic Journal of International Law 33-45 (2001) See, nonetheless, Jean Michel Jacquet (ed.) L’Amour du droit international, Propos Croisés autour de Brigitte Stern, Graduate Institute ePapers available at http://www.graduateinstitute.ch/webdav/site/iheid/shared/publicationsNEW/Cahiers/eCahier_1_Stern.pdf 320 MARTTI KOSKENNIEMI, LA POLITIQUE DU DROIT INTERNATIONAL (2007) 321 Koskenniemi, La foi, l’identité supra note, at 170. 322 JEAN JACQUES ROUSSEAU, THE SOCIAL CONTRACT (1762) quoted at Koskenniemi, La dame fait trop des serments, supra note 71, at 165-166.

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their discipline, no further recalling that the merchants will always return to the temple because they are also called to officiate among the self-appointed and unaccountable priests of the order who is supposed to veil for “that kind of secular faith” charged with “re-establishing hope for the human species”323 should obscure that international law is a discipline of thought which politics will always be tantamount to the spirit of international lawyers on Earth as it is in Heaven.

323 Koskenniemi, The Fate of International Law, supra note 82, at 30.

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martti koskenniemi and the spirit of the beehive in international law

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