The many faces of sovereignty. Introduction to critical legal thinking (M. Koskenniemi, журнал "Kutafin University Law Review", N 2 (Volume 4), October 2017)

The many faces of sovereignty. Introduction to critical legal thinking

M. Koskenniemi,

Professor of International Law, former member of the International Law

Commission (United Nations), Director, Erik Castren

Institute of International Law and Human Rights,

University of Helsinki, Helsinki, Finland

Журнал "Kutafin University Law Review", N 2 (Volume 4), October 2017, р. 282-291.

This essay uses the theme of sovereignty in order to produce a little introduction to critical legal thinking. By focusing on the indeterminacy of an expression such as "sovereignty" it highlights the rhetorical and polemical aspects of law and the nature of legal competence as the ability to project to such expressions with a meaning as desired in the context of legal argument and contestation. One of the conclusions to be drawn from such a view is that what "sovereignty" or indeed "international law" means cannot be detached from the way lawyers use such expressions. There is therefore no a priori reason to commit to them or to reject them. It is true that they have, in the course of history, come to stand for reasonably stable ideas or expectations. But this does not mean that those connotations might not change. It is therefore important, that lawyers are not enchanted by such expressions but, instead, view critically the values and interests that their use actually supports.

"Sovereignty" is one of international law's large words and a persistent source of anxiety for the field. On the one hand, the present international order does make much of state sovereignty. It is widely believed that "modern" international law is a system pertaining among "sovereign" states. The concept (or at least the word) is enshrined in the UN Charter and in countless treaties and other official and unofficial documents. The notion of a "Westphalian" order gives it a kind of quasi-sociological weight that often links it with a teleology of Western political history: from "empire" to independent statehood. On the other hand, ever since the emergence in the last third of the 19th century of international law as a specialist profession at law schools, foreign ministries and international institutions, its members have been extremely critical of "sovereignty", attacking it from a moral, sociological and political angle, pointing to its pernicious effects on what they have called the "international community". Sovereignty has been routinely associated with nationalism, militarism, protectionism, and xenophobia, violations of human rights and a policy of anti-internationalism that breeds conflict and makes everyone worse off. It may even be said that international law was born with the effort to surpass sovereignty with international and ultimately universal institutions*(1).

What should we think of this duality? Ought we finally to make up our minds about whether sovereignty is indeed good or bad, a necessary aspect of a stable international order or obstructive of any constructive pursuit? Should we align with the idealists or the realists, the "apologists" or the "utopians"? Already posing such questions suggests that there is something wrong with their underlying assumptions. Surely it is the case is that, like any legal word or institution, "sovereignty" may sometimes be used for good, sometimes for bad purposes. It does throw a protective veil over weak communities threatened by "imperialist" intrusion - but at the same time shields oppressive regimes and undermines political criticism. Sovereignty is like its obverse side, humanitarian intervention (or "responsibility to protect") - what view we take of them depends on how we view their application to particular situations: against and in support of what or whom are they invoked? It would plainly silly to celebrate or to condemn such words in abstracto, without thinking about their consequences. After all, who knows when we - or the community that is "ours" (whatever that might mean) - might be either threatened or supported by such words?

True, both expressions have a history from which we may learn. It may indeed be the case that the emergence of the idea of "sovereignty" in the context of the religious wars in the 16th and 17th centuries helped to re-order European politics (and eventually the map of Europe) in such a way as to diminish conflict and suffering. And no doubt, it has been an important polemical instrument in the hands of anti-imperialist actors, whether among 13th century European kings or 20th century third world revolutionaries. On the other hand, it also helped to stabilise the policies of absolutism and domestic oppression that grew from such initially beneficial movements. It has assisted nationalist agitation and continues to stir up violent territorial conflict. While the history of military intervention in "sovereign" rule has rarely been of unmitigated benefit, penetrating the wall of sovereign statehood through human rights, commercial integration and the overall movement of ideas and technologies has often contributed to increased welfare and democratic transformation.

I make these points - obvious though they may be - in order to highlight an important methodological lesson: big words such as

"sovereignty" or "intervention" do not carry essential meaning or fixed value. What they mean can be gleaned only once we know who uses them, and for which purpose. They do not, as Roberto Unger put it many years ago, contain any ready-made blueprint of a good society in themselves*(2). They mean what people make them to mean in the context of daily work and politics. It follows that international lawyers cannot reasonably commit to them in any abstract and definite way. They are important as legal words, of course. Competent jurists constantly use them to support or oppose particular policies or types of government. They are often shorthand for speaking about jurisdiction: who should be competent to decide on some issue? An international body or a domestic elite? "Sovereignty" and "intervention" are simply one of a great number of word pairs - principles and counter-principles, rules and exceptions - that allow international lawyers to argue in favour of some actors and against others as the situation may seem to require. In addition to "intervention", sovereignty is often juxtaposed with human rights, "justice", or environmental protection, for example. In an analogous fashion the binding force of a treaty is often juxtaposed with rebus sic stantibus or ius cogens, formal analysis of treaties with recourse to the "object and purpose", right of self-determination meets up with the uti possidetis, non-use of force with "self-defence", individual rights with the rights (e.g. of security) of the communities to which individuals are said to belong, environmental duties with the duty to respect the sovereignty of others, and so on ad infinitum. Such word pairs press lawyers choose between opposing pursuits, each equally supported by the available law. Hence they often have recourse to broad standards of "equity", "reasonableness", "proportionality" and so on, to temper the hardness of the opposite rules (including the rule of "sovereignty") and to find a "moderate" middle way where the tradition has been accustomed to finding it. All this has pushed the lawyers to think contextually about the best way to use words such as "sovereignty" and "intervention" and other conceptual tools in their (legal) toolbox*(3).

These arguments highlight the important critical point about the indeterminacy of international law, the fact that even as some rules might seem clear and uncontested, the legal system as whole will always remain open-ended so as to enable the production of legal positions for almost whatever one needs to argue. Far from being a problem that could somehow be "corrected", this is actually the secret of international law's success, the explanation for why international actors generally speaking (apart from revolutionaries wishing to collapse the whole system) subscribe to it. Nothing about the argumentative system undermines the values of policies of their clients or communities. Instead it offers them a vocabulary to support the interests and preferences they hold important - while simultaneously offering support to countervailing interests and preferences as well. That something is, or is not, a "precedent" lies in the eye of the beholder - as the debates on Kosovo and the Crimea illustrate. There is rarely any authoritative, final resolution of argumentative oppositions in international law. The conflict between the right of self-determination and the stability of territorial boundaries cannot be "resolved" in any general way: both express important values. Hence the tendency contextualise disputes and take a pragmatic view: how should we best deal with this issue? It is true that a general view may emerge on the relative weight of large principles - the importance of "human rights" and "free trade", for example, grew in the 1990s as a reflection of general political changes, and intervention was used to support international authority in many places*(4). But such shifts are always vulnerable to further changes in view of larger ideological and political transformations*(5). And they rarely undermine the need to think and resolve problems contextually.

"Sovereignty" is undoubtedly an important legal word. We use it all the time to support friends and to indict adversaries. It is neither good nor bad in itself, but can lend its support for better or worse causes. This fact highlights the inherently political nature of international law itself*(6). If it is true that its concepts do not have essential meanings, but what they mean is revealed in their use, then it follows that the operation of international law as a legal system is dependent on the choices that people who use it, make. The law, as it were, does not apply itself. Hence the importance of the international law profession, Oscar Schachter's famous "invisible college"*(7). How is it formed, what are its ideological commitments? New histories and sociologies of international law pay increasing attention precisely to such matters*(8). Despite the open-endedness of international legal words, they are used in more or less fixed ways in specific institutions. Patterns and general understandings emerge; legal institutions typically operate in foreseeable ways. Law does, after all, often provide stability and predictability. But the important point is that this does not follow from the essential, stable meaning of its concepts as much as what has been called the structural bias of the institution, the gradual pattern that has developed over time among the expert bodies of the institution*(9). This is why skilful lawyers can predict, with some reliability, how institutions decide the cases given to them and why it is that often the most important struggles within international law have to do with the allocation of a subject-matter to some institution. Once we know which institution will deal with a matter, competent lawyers will have a pretty good sense of just how it will be dealt with.

I noted above that ever since the emergence of the profession in late-19th century, international lawyers have had a negative view of sovereignty. But if sovereignty is in truth "indeterminate", capable of being used to defend both good and bad causes, then it might be useful to enquire into the reasons for such an attitude. Two historical factors are likely to have played an important role. First, if the project of international law arose to bind international actors, because the "international" has been assumed in some way "good" (for instance because it supports free trade, protection of the environment, advancement of human rights and global justice...), then sovereign boundaries seem simply obstructive of progress. Second, and connected, most international lawyers reacted to the disaster of the first world war as brought about by excessive reliance on sovereignty. Over again, lawyers have read the cataclysms of the 20th century as somehow produced by an excessive reliance or even worship of the "nation" and what it is supposed to represent. Of course, this has been a rather Eurocentric attitude, giving insufficient weight to the decolonization process and the persistent need of especially developing countries to struggle against various hegemonic powers. "Sovereignty" sees most valuable when one lacks it. This is the lesson learned by perhaps the 20th century's most insistent anti-sovereignty publicist, Hersch Lauterpacht, as he enlisted his efforts to support the establishment (and sovereignty) of the State of Israel in 1948. In this he joined a large group of activists in the third world, Latin America and Eastern Europe during the Cold War who saw the value of sovereignty as an argument to defend small communities against larger, imperialistically inclined actors.

A historical lesson speaks in favour of sovereignty that international lawyers have perhaps forgotten too easily. This forgetfulness, I suppose, emerges from the rush they feel about their historical project of building a truly universal community without distinctions of nationality; all would be equal as citizens of a "world state". This cosmopolitan - and "liberal" - utopia has always been an important part of the ideological constitution of international law. Perhaps understandably, international

lawyers have been inclined to think of the "international" as good per se and things "national" or domestic as less good, even dangerous. But I believe this utopia contains a fallacy - namely the fallacy of believing that things that liberals generally value (liberty, individual rights, peace, commerce and welfare) are necessarily part of an "international" set of laws and institutions. This may have been true for most of the 20th century. But it is dubious whether that association can still be made now when most forms of constraint individuals confront do not emerge from the domestic but the international scene. This is expressed in the strange alliance between the neo-nationalists in Europe and the United States (Brexit, Trumpism, alt-Right) and the (left) anti-globalization protest movements, finding each other in their grievances against unaccountable international institutions, experts and decision-making structures such as the WTO, the Bretton Woods bodies, transnational companies and free trade. "Austerity" has intervened in many lives as an international, and not a domestic project and the results of the expansion of international executive authority in the global south have been mixed at best.

So if there is an argument to be made for "sovereignty" today, it cannot be made as a principled commitment to that word or to the privileging of the domestic that it entails. It can only be made by throwing a cold, strategic eye on the world and trying to find out which of the alternative procedures and institutions, all things considered, would better advance the interests, values or preferences that one holds important, and what negative consequences might follow from such choices. The same attitude, critical legal thought has always stressed, applies to international law as well, understood as a specific set of institutions, priorities and policies that those who speak its language authoritatively endorse. This is not to condemn international law (or sovereignty), only to highlight the importance that lawyers and others engaged with international law are not enchanted by its institutions (or by nationalism) to the extent that they fail to see what consequences those institutions actually produce in the lives of human communities.

I cannot end this little introduction without thanking Larissa Zakharova and the other editors of Kutafin University Law Review for giving me an opportunity to respond to the comments that a number of colleagues kindly produced to my little essay on sovereignty*(10). I have written this introduction bearing in mind that "sovereignty" is as big a word in Russia as in many other places - though perhaps bigger than in those European countries (such as Finland) that now as members of the European Union have handed out to it many of their powers of decision - though still insisting that the original sovereignty remains with them. It is in fact one the many paradoxes of "sovereignty" that it seems compatible with the situation of State living in hermetic isolation from the rest of the world and one that has made the (sovereign) decision to hand out a great number of its powers to an international institution so as to enhance its welfare and security. There is therefore little reason to be obsessed about "sovereignty". Sometimes - perhaps usually - one is most "sovereign" when one is mostly intensively engaged with the international world.

References

Dezalay Y. and Garth B. (1996). Dealing in Virtue. International Commercial Arbitration and the Construction of a Transnational Legal Order. University of Chicago Press.

Kennedy D. (2016). A World of Struggle. How Power, Law and Expertise Shape Global Political Economy. Princeton University Press.

Koskenniemi M. (2001). The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960. Cambridge University Press. 11-97.

Koskenniemi M. (2005). From Apology to Utopia. The Structure of International Legal Argument (reissue with a new Epilogue). Cambridge University Press.

Koskenniemi M. (2011). The Politics of International Law. Hart/ Bloomsbury.

Koskenniemi M. (2011). What Use for Sovereignty Today? Asian Journal of International Law. 1. 61-70.

Lang A. (2011). World Trade Law after Neoliberalism. Reimagining the Global Economic Order. Oxford University Press.

Orford A. (2011). International Authority and the Responsibility to Protect. Cambridge University Press.

Roberts A. (2017). Is International Law Really International? Oxford University Press (forthcoming).

Schachter O. (1977-1978). The Invisible College of International Lawyers. Northwestern University Law Review. 72. 215-226.

Unger R.M. (1986). The Critical Legal Studies Movement. Harvard University Press.

Werner W., Hoon M. de, and Galan A. (2017). The Law of International Lawyers. Reading Martti Koskenniemi. Cambridge University Press.

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*(1) This is what I have argued in my The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960 (Cambridge University Press 2001), 11-97.

*(2) See Roberto Mangabeira Unger, The Critical Legal Studies Movement (Harvard University Press 1986).

*(3) A great many such examples, and the analysis underlying their use is detailed in my From Apology to Utopia. The Structure of International Legal Argument (reissue with a new Epilogue, Cambridge University Press 2005). The pros and cons of critical analysis in international law is discussed most recently in Wouter Werner, Marieke de Hoon & Alexis Galan, The Law of International Lawyers. Reading Martti Koskenniemi (Cambridge University Press 2017).

*(4) See Anne Orford, International Authority and the Responsibility to Protect (Cambridge University Press 2011).

*(5) The dynamics of legal contestation is well explained in David Kennedy, A World of Struggle. How Power, Law and Expertise Shape Global Political Economy (Princeton University Press 2016).

*(6) I have illustrated the different aspects of this in my The Politics of International Law (Hart/Bloomsbury 2011).

*(7) Oscar Schachter, The Invisible College of International Lawyers, 72 Northwestern University Law Review (1977-78), 215-226.

*(8) A classic discussion is Yves Dezalay & Bryant Garth, Dealing in Virtue. International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press 1996) describing the power waged by international commercial arbitrators. A new comparative analysis of the way international lawyers are trained is Anthea Roberts, Is International Law Really International? (Oxford University Press 2017, forthcoming)

*(9) A good analysis of how international trade institutions (GATT, WTO) have in the past half-century produced changing understandings of principles of free trade is Andrew Lang, World Trade Law after Neoliberalism. Reimagining the Global Economic Order (Oxford University Press 2011).

*(10) Martti Koskenniemi, What Use for Sovereignty Today? 1 Asian Journal of International Law (2011), 61-70.