The last two years have seen international law rise to the forefront of public debates. A permanent topic in parliaments, universities, demonstrations, and various other social contexts, international law now seems almost omnipresent. At the same time, international law’s failure to stop Russia’s aggression against Ukraine, Israel’s genocidal war in Gaza, the abduction of Nicolas Maduro by the U.S., and other events have led many to proclaim the death of the system altogether. From this perspective, international law is understood as a framework intended to limit, constrain, or restrict the actions of nation-states. Thus, death seems to be an accurate description of the current state of international law. How else could one describe a legal system that fails so miserably to fulfill its singular purpose? But such conceptions ignore that international law would have “died” countless times before. They become possible only through reduction: only when one omits that international law not only restricts but also enables power; when one overlooks that international law is made by states, not as a derogation from their sovereignty but as an expression of it; and when one drastically narrows the scope of what international law encompasses. Only then can one proclaim its death. Critical in appearance, this discourse is prone to shielding international law from criticism in moments when it is effective. International law allows both states and other actors to “do things” – things for which they should be criticized. In a recent piece entitled The Laws That Rule Us published in the New Left Review 154, Prof. Martti Koskenniemi addresses this myopia among many critics and shows how international law provides the global infrastructure of capitalism, sustaining an unequal world.
Martti Koskenniemi is a professor of international law at the University of Helsinki. His books include From Apology to Utopia: The Structure of International Legal Argument (1989/2004); To the Uttermost Parts of the Earth (2021) and The Gentle Civilizer of Nations (2001).
Gaza and Public International Law
Konstantin Kipp: The last two years have left many struggling with what to think about international law, often leading to claims that it is dead, obsolete, or irrelevant. Such claims are understandable, given how high the promise of “never again,” often associated with international criminal law (whatever exactly it may mean and whether desirable or not), stands, and how little protection it has offered to Palestinians. But without wanting to downplay any of the recent events, wars and horrific crimes have occurred throughout the entire history of international law. In a recent blog post, Arnulf Becker Lorca explained that “international law has always been both dead and alive.” In another blog post, Fuad Zarbiyev compared international law to Ernst Fraenkel’s concept of the “dual state.” In a dual state, a normative state and a prerogative state coexist. While the normative state has significant effects and governs society most of the time, it is contingent on not being suspended by the prerogative state. International law thus functions as a normative state that has important effects, but can be overridden by whoever is powerful enough on the global stage at any time — the prerogative state. What is your view on such arguments? A common response to the claim that international law is “dead” would be that legal systems cannot be assessed solely on occasions when they’re not respected. No one would argue that a domestic criminal code is “dead” because of the high number of murders being committed. However, Zarbiyev warns against “renormalizing” violations, most importantly because it leaves the impression that decision makers have at least considered international law, which does not always seem to be the case (an argument for death, then again). On the other hand, Becker Lorca points out many reasons why “crisis & renewal” is also not a narrative one should adopt in international law. That said, if we cannot consider the commission of brutal war crimes as “normal” under international law, nor as a “crisis” of international law, how are we then to make sense of the meaning of Gaza and many other situations for international law?
Martti Koskenniemi: I think Arnulf’s and Fuad’s arguments about the “duality” of international law are in the right direction, but I would like to specify this a little. I do this by making a distinction between international law as a set of institutions and international law as a “social fact”.
Examined from the perspective of its institutional realization, international law does seem, if not fully dead, at least in pretty bad shape presently. The actions of the US government and, even if in a different sense (to be explained later), the Russian aggression on Ukraine or Israeli bombings of Gaza have indeed ignored or sidelined the institutions of the UN and multilateral diplomacy.
States in general seem to be unable to agree on new treaties and to renew old commitments (e.g., in the trade, environmental, or disarmament fields). Massive violations of the laws of war take place and there is decreasing support for human rights in foreign policy. Moreover, all this is underwritten by tough talk from authoritarian political leaders. Such matters occupy prime time news and flood the social media. They create the impression that international law has become utterly ineffectual in the institutional practices of high diplomacy, the great matters of war and peace.
At the same time, however, international law has seldom, if ever, been invoked as much or as widely across the world as today. Everyone is constantly using labels such as “aggression,” “war crimes,” and “human rights violations” – lamenting their insufficient realization in institutional practice. International legal concepts give meaning to acts and events in the world; they make it possible to approve or disapprove the behavior of political actors.
Nobody – neither Trump, Putin, nor Netanyahu – has suggested that it is fine to kill one’s political adversaries, or attack neighboring states at will. Alongside existing as a set of institutional practices, international law “lives” and has reality in our lives as “social facts”, as parts of our shared perception of what it is that takes place in international affairs, indeed what “international affairs” are. A “State,” for example, is a social fact – a feat of imagination. Nobody has ever actually seen a State – what we see are men and women claiming to “represent” States and symbols and actions that we attribute to them. Legal words like “state”, “self-defense”, “property”, “treaty”, “human right”, and so on are social facts that give meaning to events in the world and suggest certain ways of dealing with them. It is law that enables us to see people as “representatives” of “states”, “combatants” or “investors”, “citizens” or “refugees” – indeed, it is an aspect of the power or powerlessness of certain people that we are persuaded by such attributions. They assume the existence of a huge amount of international law existing not as empirical but as “social facts”, shared understandings of the status of some persons, and their mutual relations. Likewise, ideas that “one should not use force apart from in self-defense,” that “innocent civilians should not be killed apart from in extreme cases,” and law-created social facts. They frame our understanding of what happens in the world.
It may be helpful to think of the distinction between the institutional and the conceptual (or “social fact”) power of the law by analogy to Christian (or indeed any) religion. The power of religion is sometimes manifested in the authority of its institutions (e.g., the Catholic church in the Middle Ages) but often quite independent of them (e.g., in the spread of variants of Protestantism). And sometimes the institutional and lay understandings of religion go quite different ways – just like the positions of the UN Security Council often appear strikingly different from those of lawyers or international audiences in general.
In your piece, you mainly focus on the fact that contemporary critiques about the ineffectiveness or selectivity with which international law is applied deal with too narrow a part of international law. However, even within this narrow part, there seems to be myopia regarding international law’s effects. People proclaiming the death of international law due to war crimes seem to ignore that perpetrators often not only violate but also use international law to justify their actions. One of the most obvious examples of this is the use of the notion of “human shields” over the last two years. For example, the former German Foreign Minister, Annalena Baerbock, has argued: “That is why I have made it so clear: when Hamas terrorists hide behind people and schools, we enter very difficult territory. But we will not shy away from this. That is why I made it clear to the United Nations that civilian locations can also lose their protected status.” In contrast to what Baerbock claims here, the notion of ‘human shields’ in international law does not function as a justification for certain actions but is a war crime itself. If Hamas uses Palestinian civilians as “shields,” then these civilians are victims of a crime. Janina Dill and Tom Dannenbaum have argued that claims such as Baerbock’s are a misinterpretation. The fact that Hamas commits a war crime does not free the state of Israel or its officials from responsibility for disproportionate attacks. I believe this example shows how, even with international criminal law, a critique focusing only on its purpose to limit state power — and its failure in this — is too narrow. Claims about the rightfulness of killing civilians being used as “shields” highlight that even states that in many instances appear to ignore legality simultaneously perceive international criminal law as something that allows, enables, and legitimizes the use of force. Nonetheless, in Western countries, it is often thought that international law on human rights or war is something essentially good and clear, and, most importantly, as you write, that today’s problems can and should be solved through such law. I believe Judith Shklar would call this legalism. In your piece, you state the law’s power lies precisely in its “connotation of objective neutrality.” Do you believe that this is a vital characteristic for international law to play any role? Would healing people’s myopia regarding this cause the legal system to become ineffective because people would see through it too much? While not explicitly stating it, it seems that you’re skeptical about the view that “the most important political conflicts are legal in character and must be dealt with by law and legal institutions.” That said, is freeing public international law of its connotation of objective neutrality what we should want, because in too many instances it creates effects that differ from its promises, and legalism prevents us from seeing it?
There are two different things here. First is the astonishing inability of academic international lawyers to see that international law is not only instrumentalized by the good guys, humanitarian and cosmopolitan activists, the kinds of people that international lawyers like, but also by their adversaries.
Every tyrant is accompanied by an international lawyer to tell them how they can reach their objective either without breaking the law, using some more or less-known exception, or by showing that the cost of a breach here can be well compensated by a benefit there.
In cases like the Kosovo bombing in 1999, international lawyers were themselves quite happy to argue in this way. As I explained many years ago in my From Apology to Utopia, international law can always be used to argue opposite cases. This is not owing to its semantic open-endedness (i.e. not a bug) but a feature of its rules needing always to be ultimately justified either by reference to sovereign statehood or something outside sovereign statehood so that once your adversary has chosen either one of these alternatives, you already have available a way to challenge it. Say, to take your example, you want to own a piece of territory and chase your neighbors away from it. So, you argue that they conducted an “armed attack” against (some of) your people and you engage in “self-defense” under Article 51 of the UN Charter. Which is what Russia and Israel have done. And you may find that utterly wrong, and you challenge their claim by making yours. In the absence of an authoritative institution, that is where the law leaves you – it has provided both of you with an understanding of the situation and the stakes.
International law does not, as idealist academics tend to think, “speak law to power”. It is not outside power but an aspect of power. It comes to us as a claim over something – a territory, a resource, a right of passage, a right to own something, or to determine that something should take place. In every dispute, both sides appeal to law. Sometimes the conflict is settled when there is an institution to produce such a settlement. But there are not many such institutions, at least not many institutions to settle the kinds of claims that today make front page news. But behind that flashy front, there are low-level institutions, public institutions and private institutions, international and domestic institutions, financial, commercial, environmental and technical institutions that routinely recognize some claims while not recognizing other claims, and justify their doing so by basic international law concepts.
And the second thing has to do with objectivity – what to think about it? I do suggest, as you say, that part of law’s persuasiveness lies in its connotation of “objective neutrality”. This does not mean that it would bring about decisions that are unbiased or cannot be challenged. Law is not about “truth” but about persuasion. As lawyers very well know, some claims are in particular situations more persuasive than other claims. They are felt “right” or constraining. What is it that creates such a feeling? Well, like with other human affairs, it depends. This may be because it is well argued, it seems familiar, it protects a valuable interest, it is made by a friend, or, quite simply, because it seems pointless or too arduous to challenge it. And specific institutions develop specific biases in deciding certain types of cases in certain predictable ways. Competent lawyers usually know those biases very well and can go “forum-shopping” so as to speak to audiences that are most amenable to seeing their reason.
Law and Politics
The example I gave before seems to be a case where political actors bend international law to their will and instrumentalize it for their goals. One might describe this as a political use of the law. In the piece, you argue that there are moments when this dynamic works the other way around: “princes rule, but interest rules princes.” You explain that, sometimes, the law defines what those interests are. The French professor of public law Émile Giraud, a legal advisor to the League of Nations during World War II, held that “the law represents the politics that prevailed.” It seems that for Giraud, the fact that law was forged through the political process legitimizes the fact that it defines the interests of the people subjected to it, that this is precisely what law should do. Once adopted law seems to take on a life of its own, outside of or at least different from normal politics. Such a conception seems to conflict with the critical legal studies claim, reported by Mark Tushnet, that law, if properly understood, is “indistinguishable from politics.” Critical legal studies might respond that a conception of law outside of politics seems to forget that, as many courts often state, law is “alive.” The meaning of law changes over time, with context, and, most importantly, with the person interpreting it. In that sense, adopted laws or ratified treaties do not leave the political arena, but rather appear to be part of everyday “dirty politics.” Therefore, the argument would be that “princes” do not let the law define their interests but rather let their interests define the law. However, your argument seems to be that even if they want to proceed in that manner, law is limiting them, because “only some things can be put forward as ‘valid law.’” Even if one doesn’t want a law, what one wants instead is still law (there is no such thing as “deregulation,” you write), and therefore one’s possibilities are limited. Such limitations might not be absolute but momentary, because the one who submits may simply lack the time or resources to contest them. However, restrictions will always be there. So, in a sense, both claims — law being outside of politics and law being indistinguishable from politics — seem untrue. Is it then that law and politics are distinguishable because they condition and limit each other, but also inseparable because neither can completely free itself from the other? Or does your argument that “[m]odern law is not a coherent whole to which a general view can be meaningfully taken” stand in the way of such generalization?
All use of law is also “political use of law” in the sense that it has to do with claims over which people differ, and that difference may be articulated also in political terms. Law represents a social hierarchy, as Giraud in your example stated. But it also allows challenging that hierarchy – though it is rarely successful if the expectation is that the institutions that represent this hierarchy should also deal with that challenge. But international law is often, perhaps usually, much more important as a set of claims that crystallize important political demands than as a demand addressed to some institution to resolve a dispute. The claim that every state makes that it is “sovereign” and that certain things follow from that sovereignty is an immensely important political and legal claim that is very rarely, almost never, submitted to dispute settlement. Still, that claim becomes a reality in thousands upon thousands of daily encounters between the “representatives” of a State and the outside world. This is both a political and a legal reality. It is possible to describe it from both perspectives and which description you use depends on what you are interested in seeing in it, rights or power?
Public and Private Power
Your critique of the global infrastructure of capitalism begins with a historical account of the relationship between public and private power, between sovereignty and property. Originally united, when the world was ruled by kings who owned everything on their lands, these forces separated with the decline of the nobility and rulers legitimized by blood or belief in transcendental authority. Nonetheless, they remained intertwined: once it became clear that inheritance alone could no longer safeguard the private property of the wealthy, they began leveraging public power to ensure its preservation. In this way, state sovereignty to create law was used to perpetuate economic inequality. This seems to align closely with Katharina Pistor’s argument in The Code of Capital. Public power came to serve the private interests of a few, establishing a world in which God-given monarchs and nobles have become increasingly rare, yet vast inequalities persist. Nevertheless, public power remained dominant. You illustrate how, although colonialism thrived on a combination of public and private power, Britain was able to assert that the East India Company, once the largest corporation in the world with its own army, belonged to the crown. Similarly, companies holding assets in the colonies relied on public power to ensure that the process of decolonization did not threaten their wealth. However, if I understand the rest of your piece correctly, we may now be living in a period in which the relationship between public and private power appears to be shifting once again. Private power seems not only capable of influencing legislative outcomes, but also able to evade legislative restrictions through special zones or even to create its own rules independently of public authority. Is it correct to say that private power is becoming increasingly less dependent on public power to protect its interests and may eventually sideline it entirely? If so, what are the underlying reasons for this? This may be a naïve question, but why is it that states can so easily ignore international criminal law, whereas they almost always comply with international trade law, even in cases where it appears highly detrimental to them, as many of the examples you describe suggest?
Yes. I think the very point of the neoliberal turn in the 1970s and 1980s was to diminish the say that public power had on the global organization of markets. Financialization of the economy further enhanced the ability of powerful private actors to create worlds of subordination and entitlement organized through global production chains and patterns of investment in resources that involved states – or public elites – as minor partners. The bargaining power of big economic actors has ensured that their penetration in the formally “sovereign” realm of States not only in the Global South but also in Europe, has been only minimally conditioned by forms of public regulation. You write that “States easily ignore international criminal law”. I am not surprised. The accused tend to see criminal investigations as war by other means – “Lawfare” – against them. The establishment of the ICC was the outcome of half a century of negotiations with the UN to deal with the European trauma of the Second World war by means of the domestic analogy – that is to say, the assumption developed among interwar lawyers that the international world was somehow analogous to domestic society and states its “citizens” so that it would also be ruled by criminal law of a similar type. Well, that was wrong.
“Sovereign equality” may provide a useful standard for organizing the General Assembly Hall in the UN. But it has no sociological reality.
In domestic society, criminal law regulates the routine behavior of citizens – in the international world, it is supposed to react to single instances of great political intensity. In domestic society, criminal law is supported by State authority – in international law, by diplomatic and financial resources of a handful of small European nations. I am agnostic about the popular historical assumption that the world is gradually developing into a unified community. But even if it were right, the ICC entered that history at the wrong time.
The Infrastructure of Neo-Colonialism
Not only does the global infrastructure of capitalism reorganize the world to benefit private power, but it also distributes wealth along “the colonial pattern.” Formal colonialism has been abolished, yet it has been replaced by a system that, while seemingly neutral, reproduces the same power relations. You argue that today imperialism operates by “reproducing abstract ideas about law and government connected with a specific set of legal-technical rules under which the same actors and interests typically prevail.” The crucial point appears to be that, although colonial rule formally ended, the resulting economic imbalances endured, creating a persistent hierarchy among national economies. Lena Salaymeh and Ralf Michaels have argued that this “actual power imbalance” then produces a hierarchy among legal systems. Rules and ideas from systems positioned higher on this hierarchy are “transplanted” into those lower on the ladder, making comparative law itself often “colonial” in nature. If I understand you correctly, this dynamic, both consciously and unconsciously, enables Western interests to prevail in former colonies because they can impose their own “code,” to use Pistor’s term. Once again, it seems that private power does not even rely on public power’s help anymore, as you note in your discussion of how the model of US law firms has spread globally. The result is that domestic law has become increasingly homogenous. Attempts by liberals to spread the rule of law throughout the world seem at least partly to have been fueled by the desire to create fertile ground for foreign investments. While the latter seems to be decreasing, today EU officials like to advocate the “Brussels Effect,” an argument according to which actors all around the world comply with EU regulation. Now, this might be a broad question, but do you have any advice on how former colonies can resist these dynamics from the West, especially in a time where private power is rising and public power is shrinking? Finally, many today argue that the West’s power is diminishing and that we are approaching a multipolar world. What do you think of these arguments, and how is this going to influence the global infrastructure of capitalism that, for now, seems modelled to benefit the West?
I hesitate to provide advice on how the Global South could finally rid itself of neocolonial dependencies. Two things seem clear to me, nevertheless. One is, as Adom Getachew and others have suggested, to pick up where the efforts at global solidarity ended with the demise of the New International Economic Order in the 1980s. Today, the interests of the countries of the South have diverged in many ways. The task would be to attain effective coordination so as to overcome those divergences in matters (such as the management of public debt) where they do seem aligned. The other has to do with the internal conditions of those countries, often ruled by undemocratic if not strictly tyrannical regimes, frequently coopted by Western private and public interests. A lot has to do with how civil societies in the Global South can organize themselves politically. The aftermath of the Arab Spring and present-day events in Iran suggest the difficulty of that task. Here, classical international law is often unhelpful in the way it tends to consolidate the domestic status of internationally connected elites. I am not optimistic, at least not in the short run.
The Future Role of International Law in Social Conflict
Overall, your piece contains a very critical report of today’s international law. It is inapt to prevent the commission of war crimes, and concerningly apt to entrench global inequalities while often sidelining democracy. Human rights are generally considered one of the greatest civilizational achievements, especially for strengthening civil and political rights. However, in your account, they suffer from a feature that undermines them. Their meaning is largely indeterminate; it depends on the discretion of legal institutions. Thus, they are prone to “becoming subordinate to the priorities and biases of those very bodies whose discretion they were meant to constrain.” So, for those who seek a voice for previously excluded groups and interests, not human rights themselves are the main civilizational achievement, but rather a political context that led to them being interpreted to enable inclusion? While they profit from laws’ connotation of “objective neutrality,” there is not much to human rights that can be considered an “objective core,” meaning that those seeking inclusion and equality via law and the courts might run into the trap of not realizing that the political context that once allowed for advancement has changed in the meantime? This reminds me of Samuel Moyn’s argument that, in the U.S., civil rights victories in the courts led liberals to forget that “law is just another domain of politics where their enemies enjoy power too.” Thus, the crucial question is not whether there is rule of law, but whose rule of law it is. Moyn argues that relying on the law to oppose Trump ultimately harmed the liberal cause. Do you think it is already, or will soon become, detrimental for those pursuing a more equal world to believe that international law can, on its own, deliver meaningful change? At the same time, you highlight the positive potential of recent ICJ decisions. So, do lawyers have a constructive role to play in dismantling the global infrastructure of capitalism, or should those striving for that goal look to alternative avenues instead?
I do not think international law carries, or can carry, any ideal form of human existence within itself. It is never enough to “follow the law” in order to get to a better society. While something like the “rule of law” can be useful to the extent that it seeks to prevent arbitrary use of great power – government power, power of ownership – by the strong against the weak, it is certainly no panacea. It can be accommodated with many kinds of social relations. It is the task of politics to organize the way we are ruled – with “rule of law” as a set of institutional safeguards to protect the weak. I am not sure I agree with Moyn that using law to check Trump’s excesses is a failing strategy. It is certainly not enough. But it is useful in giving voice to immigrants and minorities and other people in vulnerable positions. But then much more is needed to fight the authoritarian turn in US policy. The same, I think, can be said about human rights. They are open-ended and contradictory and in need of strong institutional backing to become effective. And they can be instrumentalized for many purposes. It is good to remember that the claim to property is, historically speaking, perhaps the most important human rights claim and the ideological basis of capitalist economic relations. But they also support and help organize activities critiquing capitalist excess and supporting all kinds of vulnerable groups.
But when thinking about the future role of international law – the theme of your question – I return to the distinction between its institutional role and its role as a “social fact”, ways in which we think about international relations. In institutional terms, international law supports a state-centric world of politics. Although this aspect has often been critiqued in the 20th and 21st centuries, it is still the case that legal institutions reflect the politics of state-centrism, including its imperialist dimensions. Even the US claim to Greenland is a legal claim, namely a claim of sovereign rights on a territory. And the Danes oppose it with a legal claim about their own sovereignty and indigenous self-determination. International law is part of statecraft. And we can have different views about its merits as such. But as regards the underlying conceptual system or powers, rights and entitlements – such as “sovereignty”, “self-determination”, “war crimes”, “self-defence” and so on – they are a historical product of modernity that cannot be wished out of existence. They continue to provide both the basic arsenal of the institutions of modern statecraft and the system of ideas and concepts that orient the way in which we all view the facts of the world, including the critique of the conduct of modern statecraft.
The problem of “rupture,” of which Canada’s Prime Minister spoke at Davos, is above all a political problem, a problem about change in the way statecraft has been conducted recently. It is not about giving up the “rule of law”. It manifests itself in new types of legal claims and once the dust settles, the emerging new order will appear again in more or less settled legal rules and claims. For better or for worse.
The questions for the interview were drafted by Konstantin Kipp at the end of last year.
