Martti Koskenniemi and The Spirit of The Beehive in International Law

Global Jurist
Topics
Volume 10, Issue 2 2010 Article 4
Martti Koskenniemi and the Spirit of the

Beehive in International Law
Ignacio de la Rasilla del Moral∗
∗
Watson Institute for International Studies, Brown University, igna-
cio.delarasillaydelmoral@graduateinstitute.ch
Recommended Citation
Ignacio 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 2010
c The Berkeley Electronic Press. All rights reserved.
Martti Koskenniemi and the Spirit of the
Beehive 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 justifies
that this article opens with an explanation of the main theses of Koskenniemi’s pathbreaking From
Apology to Utopia at the time of its re-issue with a new Epilogue. Its doctrinal emplacement
as the book which “managed to convey to a wide audience the challenging, but hitherto rather
mysterious message of CLS for international law” invites an inquiry into the internal dynamics of
Koskenniemi’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 of
international 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 intellectual
mythology, 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 exists
in Koskenniemi’s opus, no renunciation and less oblivion of the baggage of his 90s’ insights, but
rather 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 law
when 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 and
the 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 the
critical Newstream’s epistemological and normative challenges to traditional international law and
Koskenniemi’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, Seville
University Pablo de Olavide. Visiting Researcher, Institute for Global Law and Policy, Harvard
Law School & Fellow Real Colegio Complutense in Harvard. Research Associate, Centre d’étude
et de recherche en droit international (Cerdin), University of Paris 1, Panthéon-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 Kennedy
for 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 international

law, culture of formalism
de la Rasilla del Moral: The Spirit of the Beehive in International Law
“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
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
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)
Published by The Berkeley Electronic Press, 2010 1

Global Jurist, Vol. 10 [2010], Iss. 2 (Topics), Art. 4
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
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
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
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
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
http://www.bepress.com/gj/vol10/iss2/art4 2
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
(2002). Michael Stolleis, Review, 73 Nordic Journal of International Law 265 (2004) ) (reviewing
OF INTERNATIONAL LAW 1870-1960 (2002). Douglas M. Johnston, Review, International
Journal of Legal Information 538 (2004) (reviewing MARTTI KOSKENNIEMI, THE GENTLE
(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).

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).
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

13
See 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.
17
Bruno 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)

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)
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.
24
Koskenniemi, 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.

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.
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

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
50
51
Id. at 610.
52
Id. at 610
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.

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.
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

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)
78
79
80
Id. at 563.
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

81
Anthony 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
84
Id. at 565.

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.
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.

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
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)
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.

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.
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.
132
Boyle, Ideals and Things, supra note 130, at 328.
133
Kennedy, The Disciplines of International Law, supra note 13 at 34.
134
Id. at 35.

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).
138
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)
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.
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)
143
It 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).

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
149
MARTTI KOSKENNIEMI, THE GENTLE CIVILISER supra note 5, at 1-10.
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.

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)
162
163
Id., at 25.
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

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.
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
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.

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.
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

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).
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.
198
Koskenniemi, 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.

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
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
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
208
Id., at 64.

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
212
Id., at 69.
213
Id., at 77.
214
Id., at 77.
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
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).
219
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
222
223
Id., at 72.
224
Id., at 77.
225
226

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)
229
Koskenniemi, Perceptions de la justice, supra note 143.
230
Id., at 413.
231
Id., at 415.
232
Id., at 416.
233
Id., at 418.
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.
235
For 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
238
Jack 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.

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)
242
Koskenniemi, 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.
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.

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)
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.

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
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
286
Id., at 15.
287
Id.,at 15.
288
Id.,at 16
289
Id.,
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.

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
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.
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.

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)
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_St
ern.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.

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

Martti Koskenniemi and The Spirit of The Beehive in International Law

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Martti Koskenniemi and The Spirit of The Beehive in International Law

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Global Jurist

Martti Koskenniemi and the Spirit of the

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

“Y la vida es misterio, la luz ciega y la verdad

Por eso ser sincero es ser potente; de desnuda

Rubén Darío (1867-1916)

Published by The Berkeley Electronic Press, 2010 1

dangerously resemble a contemporary walking symbol of international law’s

Published by The Berkeley Electronic Press, 2010 3

Published by The Berkeley Electronic Press, 2010 5

2. From Apology to Utopia - and vice versa - to the Turn to Theory in

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years ago it seemed intellectual necessary and politically useful to demonstrate

consequently, portrayed as a pattern of rhetorical legitimating of a politically

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what further shows how this immanent critique of international law’s

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outcomes or distributive choices to other outcomes or choices”.69 Indeed, the

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related to its sharp division into a relatively prosperous North and an

normative standards”81 came as a disciplinary cold shower or, as one international

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3. Sketch of the Portrait of a Generational Perspective

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Jouannet highlights the originality of Koskenniemi’s integration of the linguistic

international law as traditionally conceived. The parallel unfolding of debates in

Published by The Berkeley Electronic Press, 2010 19

Published by The Berkeley Electronic Press, 2010 21

function as a cover or polemic for particular interests”.135 Although it is partly due

evolution of Spanish international law141 in a politically environment that has

4. The Spirit of Jus-Internationalists

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self-reassuring ethical standards. Philip Allott - an author whose work

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Beyond the acuteness, however, of the descriptive value of the portrayal of

instances in which his production is in immediate consonance with the traditional

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In his challenging breaking away from the dominant narrative in

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5. The Apology of Formalism and the Formalism of Utopia

in Koskenniemi’s work between both; no renunciation, and less oblivion of the

Published by The Berkeley Electronic Press, 2010 33

Published by The Berkeley Electronic Press, 2010 35

Against this international realist sociological background, the author’s

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

inspired 234 national interest. The latter position is epitomized by two

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This is a clear exemplification of what Koskenniemi interprets as “a

Against this background, the author consequently stresses that “because

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Koskenniemi supports the potential of constitutionalism in international

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freedom”,290 is placed against its corresponding background debate, it appears

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articulate its reality”.304 It suffices to recall Koskenniemi’s disputatio of the

Published by The Berkeley Electronic Press, 2010 47

its contribution to the development of a number of critical-oriented trends as that

Published by The Berkeley Electronic Press, 2010 49

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