Interview: Martti Koskenniemi on International Law and the Rise of the Far-Right

[Martti Koskenniemi is Professor of International Law at the University of Helsinki and Director of the Erik Castrén Institute of International Law and Human Rights. He was a member of the Finnish diplomatic service from 1978-1994 and of the International Law Commission (UN) in 2002-2006. He is a member of the Institut de Droit International and a Fellow of the British Academy. His main publications include From Apology to Utopia; The Structure of International Legal Argument (1989/2005), The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2001) and The Politics of International Law (2011). He is currently working on a history of international legal thought from the late medieval period to the 19^th century. This interview was given complementary to a keynote presentation given at the Fourth Annual Lecture of the T.M.C. Asser Institute in The Hague on November 29, 2018.]

“I am just a person who cracks the mirror. It is for other people to see the light”

Last week in the Peace Palace, Prof. Martti Koskenniemi spoke about international law and the rise of the far right for the Hague-based T.M.C. Asser Instituut. “Economic reforms are of no concern to these protesters. And the more you try to reform, the more you will appear like a hopeless idiot.” An interview with Prof. Martti Koskenniemi on the backlash against globalism, fake expertise and the smoking gun in his historical work by Dimitri van den Meerssche.

At the Fourth Asser Annual Lecture you spoke about the current ‘backlash’ against international law and its institutions and the rise of the extreme right. You seem to have your own analysis on the nature of this backlash and where it stems from.

Yes. I am critical of this liberal understanding which tries to establish a sympathetic relationship with people who are assumed to have been, as the cliché goes, ‘left behind’, those lost somewhere in an ‘unavoidable process of globalisation’. This sociological and economic account looks at the way in which the economic benefits from globalisation have not reached a group of people. These people would be reacting to their relative deprivation, by being critical of elites and of life in the city. And by Brexit and by voting for Trump, and by kicking in the ass those people who they think are responsible for their deprivation and marginalisation.

I do not disagree with the economic and social facts. But I disagree with the understanding that, if only we were able to somehow bring those people ‘up to where we are’, the problem would disappear. Looking at this as simply an economic, an institutional or a sociological problem is a recipe for utter failure. Economic reforms are of no concern to these people. And the more you try to reform, the more you will appear like a hopeless idiot. One who ‘just does not listen to us, and who has no understanding of what life among the real people is’.

Instead, I want to think about this politically. My suggestion is that ‘taking back control’ is a reactionary theme, which very specifically wants to re-establish white male privilege. It is a cultural theme. It suggests that ‘all these people who since the late 1960s have risen to the elites and who dictate to us the way we want or should behave, have been in control for too long’. ‘Taking back control’ means for white male people to look back to the early 1960s, when women and gays and Jewish philanthropists like George Soros, and all kinds of minorities, ‘did not tell us what to do’. So now, finally, ‘we take back control of our lives’. The concern is not economic deprivation: it is a concern about loss of status.

Could you tell us a bit more about the loss of professional faith in the discipline of international law? You have called it ‘a change from the mindset of formalism to a managerial mindset’.

Yes. There has been a change in the way international law has understood itself. It began as a nationalist state-building enterprise in the 1870s when it combined the effort to spread liberal legislation in Europe with a certain formal imperialism. It emerged at the consolidation of an understanding of what statehood is, and how states relate to each other. By relating to each other through formal diplomacy, states strengthen themselves and create identities for themselves. We notice a state when a statesman speaks at the UN General Assembly. Oh, here is a state! A state makes a performance of statehood always in the international law realm. That is the old understanding of international law that is no longer valid. In the 1990s it turned from a state-discipline into an anti-state discipline pushing a number of global agendas. I believe the current “backlash” is a reaction precisely to the 1990s.

In the 1990s, international law was transformed into an expert discipline. It was taken onto the bandwagon of various managerial projects: ‘projects for managing the world trade’, ‘managing world environment’, ‘managing refugee problems’.

For international lawyers to feel cool in these years, they had to learn a technical vocabulary, a managerial vocabulary, so they could talk about international law as a ‘useful tool in the management of global problems’. All of this was part of the 1990s’ liberal imagination that we could finally ‘manage the world’.

But this worked against ideas that had originally been embedded in international law. The international law that had – perhaps somewhat naïvely – built on ideas about justice, for instance, that would be realised in self-determining nations that would live in peace and equality. The vocabularies of justice and peace are not easily transformed into the managerial mode of ‘solving problems’. In the 1990s, international lawyers became lost in a managerial world, where issues such as democracy or justice, can no longer be articulated. We talk about free trade and human rights, security and the environment – important issues – but in a way that is wholly distant from the contexts in which most people work and live. Austerity and human rights shake hands. And inequality grows. How can this not seem like “elites talking to each other while only consolidating their privileges?”

Having written a book called ‘The Gentle Civilizer of Nations, with the subtitle The Rise and Fall of International Law 1870–1960, I situated this “fall” somewhere in the 1960s. Part of that was due to the emergence of human rights law. This is not a critique of human rights law: it is just a statement that human rights law is different from international law. International law had to do with supporting states, whereas human rights see states as the enemy. The 1960s also saw the very robust and complex emergence of trade law, first in the GATT, then in the World Trade Organisation. So trade lawyers are people who move about in the context of trade and the globe. But justice and the good life is mostly created in the context of smaller communities, like states and often provinces…

Globalisation and nationalism are really complex, contrasting phenomena. But people want to think simply. So the solution would be either the nation or the globe. But of course these are extremes. Already the lawyers of the late 19^th century knew that nations were both good and bad. And so they spoke of a “more enlightened patriotism” – by this they meant a nationalism that appreciated other peoples’ nationalisms as well. There was something valuable in that understanding.

But for some perverse reason, most international lawyers have learned to think of states as the enemy, and that ‘the international is good and the national is bad’. In the 1990s they were somehow able to act on that presumption, and suggested that ‘everything should become international’, and that ‘the nation is really dangerous and harmful’ and ‘nationalism is really bad’. But it is not like that. They wanted to have a small state, a liberal night-watchman state; and have the global market do it. And here’s the result. This is why thinking politically is important: the choice is never just about whether to choose the domestic or the international. The choice should be: what kind of “national” or “international” should we have, and we should ask ourselves: who will win, and who will lose?

On the one hand you say that international law is full of false Universalist, cosmopolitan ideas that are always historical and political. But you also believe that international law can still be a voice of critical universalism, a ‘language of imagining better futures’, as you have called it. What explains your spiritually redemptive attitude vis-à-vis international law?

Ha! So I am a closet liberal after all! (laughs). And a romantic… I do not think that international law is intrinsically better or worse than other professional idioms. But it is what I know and that I can use. I know it sociologically, I know it historically. I do think it has a potential for expressing values and objectives that most people hold important. But international law is not in a very good state. I sat in the International Law Commission for five years often wondering whether any person’s life was made any better by what we did there. As David Kennedy has so often pointed out, we international lawyers are enchanted by the institutions with which we work. When we see a problem we suggest, oh let us have the UN deal with this problem. And when the UN then deals with it – passes a resolution, say – we believe something is already “being done”. Well, often this is not the case. I think the realisation of this has led to much of the “managerial” work in other global institutions. But maybe this was just going from the frying pan to the fire. By jumping onto the managerial bandwagon international lawyers lost connection to those issues of justice and peace for which the UN was once established.

So I am a closet liberal, a romantic, and not an optimist. I do not have a blueprint: I do not know how the world could be made better. And if a managerialist comes to me and says “well, Martti you do not have an alternative to my managerialism”, I have to say: ‘That is true. And I admire your self-confidence.’ But I also think that this self-confidence is part of the problem – because it is an unwarranted self-confidence. It is the cause not only of why so many people in the world suffer, but also why so many people have lost faith in managerial expertise. The problem is this: most people meet experts – such as myself – when they are asked to give solutions to the problems of the world. The expert will then have a 35 second interview to say how to solve the Middle East crisis, or the Eurozone crisis, or the Cyber espionage crisis, or the housing price crisis…. And although we are not really sure, we still speak as if we were – not least because the media is not interested in ifs and buts, all the reservations that good experts have about the character of their expertise. And the public knows that this self-confidence is a trick, that it is unwarranted. Their experience is: “whatever you say, it is us who always lose”. So I believe something about this culture that suggests that experts already “know” the solutions to world problems, has destroyed meaningful political contestation and debate. And the expert culture is wholly global. Thus the juxtaposition – a nationalist, reactionary backlash against what appears like fake expertise.

Should people in international law then perhaps become less specialised, more generalist, have a wider view?

Yes, I think people in general should read novels and go to see arthouse films and read bande dessinée (comics – ed), for which I am really a sucker. Novels are often much better than a 500 page introduction to international law for doing good things. It is important to learn sympathy, to take the perspective of others. What is it like to be a refugee in the jungle of Calais? How do other people feel? These are things we learn in novels, not from treaty texts. I know this is really a platitude: but in a managerial world it may still be important to remember this.

One of the problems in expertise is that it makes us forget that we already know quite a number of important things. We know that you should not hurt your neighbour. We know that people in distress ought to be assisted. We know that if we do not follow these simple pieces of advice that we received already from our grandmothers, our lives – and the lives of those who depend on us – will turn out badly. But as experts, we cannot say this. On the contrary, our expertise is precisely about rising somehow “above” such platitudes.

In the ‘Gentle Civilizer’ you use the idea of a ‘cultural formalism’ as a strategic posture, through which lawyers can exercise or make a strategic choice. Is the idea of ‘cultural formalism’ still something that you endorse?

I often wonder whether it was a good move to make, to bring “cultural formalism” at the end of that book. I originally toyed with using the term ‘ironic formalism’ but then decided otherwise. I thought of ‘cultural formalism’ as a paradox, or as an oxymoron. I thought: these two things are opposite to each other: culture, which is substantive, historical, and socially thick. And formalism, which is abstract and thin. If you put these together, people will understand that what you hint at is a paradox, an impossible position to be in. By this paradoxical formula I wanted to address the slipperiness of our professional practices: on the one moment you have to really be a formalist, and on the other moment you have to be really culturally embedded in, to be able to deal with something.

But I am not sure I was successful. Colleagues are really puzzled about that phrase.. On the other hand, perhaps it does address some malaise in the profession, a set of contradictory desires and an experience that is hard to put in more easily graspable language. We want to be socially embedded, we want the law to embody meanings that reflect who we are, and what we might strive for. But we also want the law to have distance from what goes on in society, to tell people what ought to be, instead of just what “is”. Perhaps the “culture of formalism” is just another way to give expression to that old tension in modern law.

Perhaps we can think of the ambiguity in “culture of formalism” as an effort to articulate a professionalism that would not be so self-assured, that would be more open about its uncertainties. Perhaps it could then come closer to the uncertainties all of us feel in the darkness of our homes, where we think: “Oh, I cannot understand myself. Now I think this, and yesterday I said that. How is it possible?!” I mean, this is what we are as human beings: complex, paradoxical, and self-contradicting. Not at all managerial about our lives. So perhaps international law at its best could give expression to that vulnerability, that naiveté – that sense that we need to talk about justice and equality and peace and harmony without cracking down laughing when we say that.

Peter Sloterdijk has this wonderful critique of cynical reason. At the heart of this critique is the idea that with modernity, we inherit a cynical mindset that enables us to articulate whatever principles and formulate a critique of those principles at the same time. The consequence of this is that we cannot believe in those principles any longer, and they have no effect on how we act in our lives. Now Sloterdijk thinks of this as a really tragic situation. I agree with him, but in a slightly more subdued tone. Yes, it is tragic. But tragedy may not be that bad, as tragedy can also be used to highlight a sense of vulnerability. And that is useful because with a sense of vulnerability you can identify with other people. You can feel pity, and you can understand others when they fail to live up to what they preach.

I think that some of the distrust of experts and the whole expert-culture has to do with the – correct – realisation that experts actually do not know things they pretend they know with such certainty. That their knowledge is vulnerable in a sense not that much different from the way “I” know “my” knowledge is. The best technicians and scientists know that all fields of knowledge have their orthodoxies and the critiques of those orthodoxies. They are split against themselves, and vulnerable in that sense. Perhaps if only expertise were allowed to show that vulnerability, that uncertainty, we might have less of a backlash today.

You took a turn to history as a strategy to understand how law shapes power, or how law enacts power? What brought you to historiography?

I am someone who is obsessed by power. I want to have it, of course, but I also want to analyse it. I want my friends to have it and I want to be strategic about how that might be possible. But I am also Foucauldian enough to know that ‘it’ is not really somewhere, but everywhere, and that “having it” is not really a possibility. So I chose to study the way in which other people have been understood to “having had” it. I am interested in the ways of power in the past.

But I do not come to historical materials in a neutral way. I come to them with the intuition and experience that the world today is pretty much a disaster. And I want to find out what it is that has made it such a disaster. My hypothesis is that this disaster is a product of power. Now how do you study the present as the accomplishment of power? By using present-day vocabularies you cannot do that, because those vocabularies are already infected by that power. So let us look at other times and other periods. How did our vocabularies come to have the meanings they appear to have? The hypothesis is that this is a result of how ambitious men then, used – legal – vocabularies to attain power, to justify power, and to critique power.

In this way, my historical work has become a kind of detective work. It asks the question ‘whodunit?’ How did these people develop those vocabularies through which they were able to persuade people that the solutions they proposed were the right solutions; that they had found the right way?

History is useful also because it is full of stories. Stories illuminate the dilemmas in the present in a very concrete, palpable sense. It shows human beings as actors in their own lives (I do not mean masters of their own lives, because that is not open to many people, so let’s say actors…). And as actors we try our best, but we often fail. The benefit of narratives is that readers can take from them what they want or need. Narratives do not preach. Narratives are ambiguous and allow room for reflection: “how does that relate to my experience, if at all”? A reader might be inclined to ask. That is why I am drawn to history.

What is the biggest lesson that you have learned by looking back?

It is hard to say what the most important lesson is. But let me tell you a story. I was a visiting professor at Cambridge in 2008 and 2009. And there is this wonderful university library which has a really good collection of the Spanish scholastics of the early 16^th century. There I found the lectures of the Dominican clergyman Francisco de Vitoria. In his lectures on trade, Vitoria, like the scholastic teachers do, posed a hypothetical question to his students. The question was this: “You are a captain of a ship full of grain, and you are headed to a port in a country where there has been famine for a long time. You arrive at the port and you see the people coming with their money in their hands, and they want to buy the grain that is in your ship. You, as the captain, know that in the distance of two days of sailing, there are tens of other ships on their way to this same port, loaded with grain as well. Do you have the duty to disclose to your clients what you know?”

So, the students of Vitoria trained to become priests. We’re in the 1530s, the protestant rebellion is under way. The Spanish king is waging war against the French. Lots of things are at stake, including the prestige and position of the Catholic Church. Vitoria was the most famous intellectual in the Catholic Church at the time. What was his response? He said this: “If you are ordinary men and women – well, of course there were no women in the class in those days-, but he said: “If you are ordinary men and women, then of course you have to tell these starving people that there are other ships with grain coming. This means that the price of your grain will go down, down, down, down. But that is your duty to the people closest to you…

But! But!, he says. ‘If you are a commerçant, a merchant, then, well, it is not that clear…..”

So this is a moment in history when all of a sudden people can start to say that there are two kinds of moral systems. There is the moral system that applies between you and me. And then there is the moral system that applies in commerce.

This probably is the most important finding of my historical work. Maybe you should not disclose this (laughs). But as I found this I could not believe my eyes! As I told you earlier: my historical work is to try to find the smoking gun. Here it was.

But I am also really interested in how authoritative speech migrates between technical disciplines – that, after all, is a large part of how power operates. One of the important moves was from law to economics. And there I am especially thinking of the life of Adam Smith. Smith started his work in natural law, imagining, in his famous Glasgow lectures in the early 1770s, that he was continuing the work of the natural lawyer Samuel Pufendorf. He wanted to modernise natural law. What Adam Smith ended up publishing instead was ‘The Wealth of Nations’, in 1776. So the ‘Wealth of Nations’ grew out of legal imagining; but it gave impetus to the emergence of a wholly different thing: economics. And gradually, ambitious men came to think that this is where authoritative speech lays.

As you can see from these two examples, there is a certain underlying narrative on which I draw. Some people would say “Oh Martti, he is writing a history of capitalism”. But I am not going to put it in those terms. I want to avoid words such as ‘capitalism’ because they have been so infected with all kinds of other associations. And I do not want to be vulnerable to criticisms that can be voiced against those. Although I appreciate the insights of world systems theory, and other Marxists derivations, I am not going to subscribe to any of them. I am just enigmatically going to tell stories that may (or may not) resonate with the things that my readers already know are true. But above all, I am just writing a history of international law (laughs).

Is your new book a response to your oeuvre? Is it a continuation of how you were thinking before?

We are the narrators of our lives but not the final authorities on them. Other people narrate our lives differently, and maybe with more insight. I am older than I was with those previous books, and old men write history (all laugh).

But the first book was a really strict structuralist analysis of something – namely international law. But that was the type of thing that you can only do once. So I then moved on to do a looser thing, in which I described international lawyers as human beings and as actors in their professional lives. That took me around the world lecturing about international law being about ‘men with projects’, and nowadays some women too. But that was narrow, and of course chronologically very limited (1870-1960). So this new one, takes the structuralist ambition of the first book, and the human interest in stories of the second book, and throws them into European history from the late middle ages and tries to see, well, what can be brought out from that voyage to those places and those times to the present.

If you look ahead and see disaster, and international law to be in a dire state, what is the vision that keeps pushing you forward through a ‘career of endless meetings and minor reforms’ as you’ve put it? How do you keep pursuing this romantic path?

I suppose I have given up mindless meetings and endless reforms by now. It lasted while it lasted. (…). So I now try to engage in critical thinking about the profession that does engage in such meetings and reforms. And what is “critical thinking”? On my best days I like to think that it is about enlightenment. And enlightenment – and I am embarrassed to make this really classical liberal point – enlightenment means the ability to think in other ways, to be disenchanted by things today that one was enchanted by yesterday. No longer thinking that the professional competences that we have, are all that we can have. No longer thinking that the institutions that we have will save us. This is not a substantive vision. Enlightenment is not about problem-solving or churning out blueprints. It is instead trying to look at the present with eyes wide open, trying to understand to what extent we have been enslaved by “truths” that we have learned from other people.

What did you teach the people that came to the Annual T.M.C. Asser lecture? How were they enlightened by your lecture on that evening?

The lecture was on how the far right has tried to capture the terrain of legitimate grievance. I try to separate the reactionary impulse that looks back at a time when white male privilege ruled and when people in Europe and the US were able to look outside and say to themselves “well, however bad our situation is, at least we are not like that” from legitimate disappointment with expert rule and global governance. I believe enlightenment today is about recognising mistakes that were made in the 1990s – especially the “disembedding” of a whole world of ruling from political contestation. A lot in my mind has to do with learning to be critical; it is not often easy: we want rapid solutions to problems other people have identified. One has also to un-learn the dogma that professional discourses and experts have the solutions and that these solutions exist somewhere outside political disagreement. It is necessary to learn that “political disagreement” extends to the inside of our knowledge systems; our experts disagree on everything that is important. Politics is about knowledge; ignorance is still not a virtue.

So, you know, the way is long and arduous and there is no guarantee of success… If you are in the mindset where you think you now need a mantra, you have already closed yourself, and critical thinking cannot enter, enlightenment does not come. There has to be a gap. Leonard Cohen says what needs to be said: “There is a crack in everything. That’s how the light gets in”. I am just a person who cracks the mirror. It is for other people to see the light.”

[About the Asser Annual Lecture: Each year the Asser Institute invites an internationally renowned jurist and outstanding public intellectual to take inspiration from Tobias Asser’s vision and to examine – as Asser did in his days – how to respond to ‘the condition of society’. Mutual trust and respect are crucial to the health of any society, especially when it is a heterogeneous one; this holds regardless of whether it is the international society, the European society or the urban society of one of the rapidly growing cities across the globe. A question that Tobias Asser handed down to us is ‘how can law and legal institutions contribute to the cultivation of such necessary trust and respect?’ – a question central to the Asser Institute’s Research Agenda.]