 Saving the prison company of Philip Ullett, Mr. Light, and the great Delight Sieven here, Martha Kosky named me as one of the most significant theorists in international law. The more than that, I don't say he's the greatest public intellectual in the world. I don't say he's the greatest international lawyer in the world, but he is without question the greatest international lawyer who is a public intellectual in the world. We had him here as a good heart professor some years ago, and it was the result of that that the partnership, I don't speak in too strong terms, which led to the Cambridge Companion to International Law developed, and that has been launched this evening at 5.30. You're all welcome to come through that. After the end of the lecture, you are, however, unless you're invited to the conference, not welcome to stay, and I will shiver you out because there's all sorts of logistic arrangements that have to be made. If you want to speak to Martha, there'll be an opportunity to do so this evening at the lunch. I should... is Tara here? She's right in the distance. You can have the flowers. While we're getting Tara, I'll give you the other notices that need to be given. I mean, there are any other notices. I'll go through these. The title of today's talk is The Politics of International Law. Marty has published a book. We authors, Ma'am, on the Politics of International Law, published by Hart, is available to you at a 35% discount, and we promise to sell four copies. You can alternatively use the brochure for the talk today and get a 20% discount directly from Hart, thereby missing out on a 15%. So you'd be most welcome to buy one of these things afterwards and there'll be someone available to take your cash. We'll give the flowers later on. So, Marty, it's a great pleasure to have you back to speak on the Politics of International Law, and I won't give you flowers. Well, it's a great pleasure to be back in Cambridge again, to see so many friends, colleagues, to see James, and the whole operation of the Lauterpath Center once again. So it's customary for speakers to congratulate themselves of the difficulty of the topic they've been given or they've given themselves. There's two specific difficulties with this topic. On the one hand, it sort of points me to summarize everything I've done in the course of my professional life. I wouldn't do that. I'm very bored and will still be sitting here next year. On the other hand, there's been a conference the morning on the Politics of International Law. So many of you are completely inside this topic, have a sophisticated framework being constructed in your minds by this and you will feel that I will just be repeating some of those issues that we discussed in the morning. But it is true that this is also a summary of what I've been saying in different forms in the course of the years. The book, The Politics of International Law, is a collection of essays. Some of you may know some of those essays. They all are obsessively focusing just on that one question about what does the political mean in international law? How does it operate? And how, or other people in this way, how does our intuitive understanding of the politics of international law get articulated in the various professional practices in which we are engaged? But I'm not going to summarize the book either. I'm just going to clear the way to explain to you what is the relationship, finally now, within these walls at this moment, what is the relationship between international law and politics? And I say a few words at the end on where I think the politics might now be going. Okay, so like all good things, or let's say like all intellectual things, this story also has to start in Germany. And it starts with the juxtaposition of two persons, Hans Mogenthal and Herr Schlauterbath. So Hans Mogenthal, the founder of the International Relations, famously in the United States after he migrated, published his dissertation, 1929, on the tasks and limits of international law in German. It was a Frankfurt dissertation. And in that dissertation, he asked himself the question, what is the role of law in the international political world? He particularly wanted to address the question which many German lawyers, including his own supervisor, Karl Strupp, had been asking, how can we accommodate or deal with the famous reservation of vital interests and honor in international arbitrations? Is there a way to professionally deal with that? It's a political reservation, clearly. And Mogenthal said, well, it cannot be delimited or delineated in any specific way, that whether we feel some matter that deals with our vital interests or honor is a function of how intensely we feel about that matter. Politics is an intensity field. We start to feel a thing being political when we feel intensely about that. There is no way we can map out the aspects of the world about which people feel more or less intensely. Which led him to suggest in this book that there is no way to define the limit of international law and politics. That would not be a political decision. So Hans Mogenthal, for him, everything in this... So here is politics, there is law. For him, law is whatever is left once the political has been delineated. The space of law, the little bit in this universe of things here is constantly conditioned by our understanding of the political or our desires and passions, what we feel intensely of. So what we are cool about and nonchalant about that's law and it's this little thing over here is what he said. Now, Herr Schlauterpat 1933 in Britain wrote the function of law in the international community precisely to refute this view. Lauterpat's function also starts with the query about the nature of the reservation of vital interest and honour. Can it be delimited? And he says like Mogenthal, for whom he had great appreciation you can find Lauterpat's review of Mogenthal's dissertation in the British yearbook in the early 1930s. And so Lauterpat looks in particular at three different questions. He asks the general, for the general question that he asks is what is the role of political in law? And he sees political intervene in three different ways. First is the vital interest and honour. He says well, it's true that it cannot be delimited by any criterion but we can all find a place to it in our imagination as legal professionals we have no difficulty in giving room to sovereignty. Sovereignty of which vital interest and honour are an expression is a legal notion and of course there's a role for sovereignty like there is for vital interest and honour but that role is completely delineated by law, by legal argument through judges on an everyday basis. The second question he asked was well, what about the famous distinction between legal rights and political interests? People were saying at this time if a matter deals with political interests lawyers should not touch it or deals with political rights. And again Lauterpat would say yes there is some truth to that but this doesn't mean that lawyers could not delineate a specific area where political interests that is to say sovereignty operates that area is delimited by law and in this way can be dealt with. And the third problem he dealt with was the problem of peace. Many people were saying not least because of the problems related to the Covenant of the League of Nations and the Paris Peace Treaty that peace is not a legal notion and we heard this in the Yugoslavia situation for example that when it's an issue of peace then it has to be dealt with by diplomats or by soldiers, lawyers really mix these things up make life more difficult. And Lauterpat said finally well this is an altogether stupid view of law lawyers are not that idiotic to overlook concerns of peace. If a concern of peace is real it can always be articulated as a legal concern. So Lauterpat was making the same argument about the impossibility the impossibility through a criterion of distinguishing the legal and the political. But what he was saying was that well through law we can always leave a space for political decisions for sovereignty. It's just a matter of the jurisdiction of the limitation undertaken by law. So you see at that early moment in the interwar era two German trained internationalists both addressed the issue of the relations of international law and politics. Both said there can be no delimitation but the conclusion that they drew was exactly the opposite. With Morgenthau saying politics determines whatever little role there is to law, Lauterpat saying law determines whatever little role there is to politics and sovereignty. So this leads me and I apologize for those students and friends who have seen this figure sufficiently often. So this leads me to now finally rid ourselves of the question and the problem what is the relationship between law and politics. This image which in the course of decades it has deteriorated very badly. I have to say the animal isn't really very well at present. But this is of course the famous Wittgensteinian duck rabbit. It's supposed to be a duck looking in this direction and a rabbit looking in that direction. So the final answer to the question of the relationship between international law and politics is that it is exactly the same as the relationship between the duck and the rabbit in this image. Now what is that relationship? What can we say about the relationship between the two? On the one hand we can say that the distinction is not something in this image in the world itself, in this image itself. The distinction is something that we operate in our minds. And we of course some of us are better and some of us are worse in this and when I show and as this is going to deteriorate in the course of further years if I still am able to teach this then it will become more and more difficult for audiences to imagine what's going on here. But especially if they followed my career in the past they will train themselves and they will see, they will train themselves to flip the coin and to see well duck, rabbit, rabbit, duck, rabbit, duck and so on. And if you ask small children you will often hear that or see that they don't have that kind of flexibility. They usually say well it's a duck and they say why can't you see the rabbit, can't you see the rabbit? And then slowly they get, oh right. And then they train themselves and then they become suave operators in the international world by being able to recognize from a discourse that they hear from a distance whether it's a lawyer or a political scientist that's speaking. So it's not out there and there is in this sense something quite nonsensical in asking the question about the relationship between law and politics if it's the question about the relationship between the duck and the rabbit. There's another important thing here. It's of course, this is a famous image of Gestalt psychology in which we look at how people visualize things. And the point in Gestalt psychology is that we always visualize things as holes. It's about the holism of our psychological lives. This means that when we see a duck or a rabbit we see always an animal as a hole. None of us sees a terrible monster who is a half duck, half rabbit. The psychological mechanism always makes the quite imperfect image hole. It makes an understanding of it. And this is also an important aspect of our professional lives. When we act as lawyers, we don't act as 75% lawyers, 25% politicians, or 50% and 50%. No, if we perform a legal task, then it's a legal task from the beginning to the end. It's a hole. And we can compare this with two languages. So there are the languages of rabbits and the languages of ducks. It might, of course, be possible to say that there is a language that's half duck, half rabbit. But this would mean that half of the populations of those animals would always end up misunderstanding or not understanding each other. When we speak a language, we speak a language as a hole. It would be idiotic for me here to start to insert Finnish words in my English sentences. It might be exotic, but it would not enhance our understanding of what it is that I'm saying. The point is that law and politics are whole professions. They are whole forms of our existential lives. They are languages. They have their own rules. They have their own professional engagements. They have their own interests. They have their own agendas. They have their histories, their sociologies, their psychological predispositions, their ways of behavior, their cultural patterns, their kinds of jackets that people wore, the bags they carry, the books they read, the love affairs they wait. All of this comes together as a whole image of what we recognize as what it is to be a lawyer or to be a politician. And we can, to finish with this, we can witness this in our students. And when they innocently come from schools and they all look the same. And then, after maybe six months, maybe one year, we start to recognize those who actually went to the law school. And they recognize that those who went to read political science, they start to seem different. They become different. Ducks separate from rabbits. From some understandable and meaningful standpoint, they are just the same. But from the perspective of their own understanding of themselves, they become different. They start to speak duck and rabbit. And they disagree about it with each other. And they have different preferences. Their politics is slightly different. And we all know how, in which ways, they are different. And this is the final word about the relationship between law and politics. And I could stop here. But as you know, I still have 40 minutes to go, so I can't stop here. And you all come here. So I need to continue. So there is a question, a further question to be asked. Well, why would one want to imagine oneself as a duck or as a rabbit? What specific interest is there for us to be rabbits today? Why are we rabbits? So we have this imagination about what it is that rabbits do in contrast to ducks. So there is a familiar understanding in all of us about what the world is like and what we should do about the world. And it's an image that's portrayed to us always in first year law classes, even at school, when we ask ourselves what this thing law is. So there is this narrative which says that once upon a time it was all dark and dangerous. It was a jungle out there we fought for our lives. It was a bellum omnium contra omnes in whichever vocabulary you want to say it. It was politics. It was dark and dangerous, passionate, uncontrollable, anarchic. It was really a tough place. Law came to take us away from there. So law is in this sense the other of politics. Whatever it is, law is those rules, those institutions, those mentalities, those ways of behavior which are opposite to this. Well, is there more to be said about this? Yes, there is more to be said about that. So there is this understanding about the relationship. But you must see this is a progress narrative. So this is not just a conceptual relationship. This is also a temporary relationship between the political past and the legal future. So one way of thinking of this, the danger of politics is that it's just facts, it's power. It's the tank that came into my country. It's the bomb that fell. It's the fist that hit my nose, etc. And so it's what happens. It's a sociological fact. Some people have power, others people don't have power. That's one understanding of politics, power politics. And so to get away from there, we need that which is not facts. So what's that? So that's ideas. The identity of law as ideas typically has rules, also institutions as principles. Rules such as non-use of force, pristine environment, good ideas, ideas which whatever content they have mark themselves by their contrast to the dark facts of power and present existence. So that's one way of understanding and many political scientists, realists, present this kind of an image, in part to radical law because of the weakness of ideas if we juxtapose them with tanks and fists and power over there. Now Hans Morgenthau is on this side. I am a man who stands strong in the dark jungle that politics is where as you, Hersh, Lauterpaat or we here at the Lauterpaat Center are men and women of ideas who can just be swept away by whatever happens over here. So that's one understanding. Law has some non-factual aspect to it which is, as I put it many times, normativity. That's an aspect that law has. To the facts of power, law poses the normativity of ideas. But there's another understanding of the relationship as well. And it is politics as socialism, capitalism, neoliberalism, old liberalism, law as ideologies, law as utopias in the, sorry, politics as utopias and political ideologies, party programs and so on. Why, in some ways the world could be ruled by ideologies. Why isn't it ruled by ideologies? Well because we think ideologies are dangerous. Ideologies are intangible. Ideologies are merely smoke screens for the passions and selfish desires of the speakers of the languages of those ideologies. So we can't rule the world. It's intangible. We can't rule the world through ideologies. So we need, instead, we need the police. We need facts. We need legal facts, institutions. We need a court system. We need the fact of there being a rule book in which we can find out what the law said instead of consulting Father Lenin about what it is, how we should live. And there are dozens of narratives that link to both of these stories. This is the story of law as wonderful humanitarian ideas that intervene in the dark jungle of power politics. This is the story of law as policemen order institutions of society that intervene against the endless blabber of ideologues. Now, of course, this thing creates a perpetuum mobile in which one of the things that can be said about it is that for every idea that the law presents, somebody is able to say that, oh, that's only ideology. That's your humanitarian or you an ideology. It's a constitutionalist ideology, in which case you fall into being just an ideologue from the perspective of that speaker and he or she can then juxtapose your ideology. With the facts of the politics. So on both sides we move with facts and ideas and on both sides we constantly juxtapose the opponent's ideas with our facts and the opponent's facts with our ideas. This was the perpetuum mobile that triggered or that was constructed in the course of my writing from Apology to Utopia now a very long time ago and that appears and reappears over and over again in the various essays of this more recent book on the politics of international law. Now why do we still feel that law is able to trump politics? Because of the reason that we think that law enshrines ideas that are valuable against the dark facts of politics. But also because we think that law has a concreteness, a solidity about it, a verifiability. Look at all these books which I hear in order to show the concreteness of the legal world in juxtaposition to the endless debates in parliament and at political rallies. To rely on this we are on safe ground just to go by what the politicians say. And so on. So law has this rhetorical power that seduces us over and over again to imagine ourselves as lawyers instead of as politicians. So why do we go to law? Law is the language of rabbits as against the language of politics, the language of ducks. Why should we want to choose one language over another? Well this is because languages are instruments or languages are ways of life through which we come to see some things very clearly. Law enables us to see society in a particularly sharp fashion. That's useful for us. Law's insights tell us about society things that non-lawyers do not know. We know this from everyday experience. Lawyers in some aspects of their phenomenological lives are more capable operators of the world than other people are. So that's a plus. But it comes with a minus. There's a blindness about law too. And we see this in some of the colleagues who even at moments of friendship in the evening we've already left our jackets we've had a couple of drinks and they keep on and on about these cases they've read and about the new legislation etc. The inability to look at life without the legal spectacles on. That's a huge human problem often but it's also I suggest a big social problem. We don't want lawyers to rule the world not because we wouldn't think lawyers would be as good as any others but they are after all lawyers they are the people who find a problem for every solution. We don't want them. We don't need other kinds of people. So the legal vocabulary enables us to operate but it also makes us hopeless operators in situations where we should just live. But we're also called upon to be lawyers to become rabbits instead of ducks because it offers us a profession and a profession empowers us to be a legal professional is or goes together with a number of things that we want to have. The paycheck is usually well it could be better but it's okay the places we travel the conferences we go to the way in which people listen to how we speak in moments when the lawyer speaks we enjoy that. So it empowers us. So that's the plus. Now what's the minus? Well it makes us irresponsible. So it enables us to say oh it's not me who decides it's you know the decision comes from this book and off you go 30 years to life or whatever it is we say so it's not we it's the law. That kind of an attitude in some social circumstances is precisely what we want to inculcate. But and the German history would be just one example it would not be the only mindset that we would want to inculcate. The legal mindset is a mindset of personal irresponsibility. So again a plus and a minus. Thirdly to become a rabbit is to choose a set of projects. Law in addition to being a vocabulary and a profession is also historically situated in the advancement of some projects. The lawyers preferences are not the common citizens preferences. Law comes with a definite normative baggage. In the international world we can mostly pick out very rapidly five six seven kinds of preferences. It's a constitutionalization project. It's an institutionalization project. It's a project for empowerment of particular kinds. There are bureaucratic practices that are being advanced of certain types. There is an optimization of social collectivities of a particular kind and so on. Law is instrumental towards these kinds of projects. My own historical research now looks at how the idea of an individual right emerged as spread and was attached to various kinds of social problems to various projects of exercise of power in the world. It's instrumental, but it's also limiting and many of us especially in human rights classes when we lecture students on David Kennedy's writings we lecture to them about the various ways in which the legal language limits our ability to operate and help out those whom we want to help. It's instrumental useful, but it's not a panacea. There's a final question about this aspect of law, the goods that law brings. It's a philosophical question. It's a question that is often raised in Europe, seldom elsewhere than in Europe, or at least, well, it's raised because the Europeans think they have some response to this and this concerns the inner value of law, that there is some morality that automatically is attached to rabbits, but that ducks lack. I'm agnostic about this. I think it's for all rabbits it's extremely important to imagine that they, alongside being rabbits, are also moral animals. That they read books, educate each other in moral vocabularies and imagine that the ducks vary business in the various ponds in which they exercise duck kind of authority. I realize I'm mixing now ducks and rabbits, which actually is a mistake, it's a terrible mistake that one should never do, but you get the point. So there is, I think, a value to it that lawyers think of their profession as having a morally articulable core or aspect to it. Now, but I do have something more to say about the legal project, and this something more has to do with why it is that I find it so difficult to think that rabbits, no, rabbits is lawyers. So that rabbits are actually engaged in a moral project, and that has to do with the narratives that rabbits tell about what the kind nature of the project is. And I already earlier pointed out that there's a chronology about it, that it's a progress narrative in which there is a starting point which is an experience and then there is an objective somewhere there. So as the saying goes, in a world of angels no law would be needed. We need law because we somehow feel that the present world is insufficient as it is, unacceptable in some aspects of it, and of course we widely differ in our sense of how intensely we feel that the world is unacceptable or disastrous or slightly problematic, however we want to put it. Anyway, we need law in order to get us away from that experience, the negative experience to some sort of a goal that's out there. Now, that's fine. That's an aspect of law. It's also an aspect of the fact that rabbits do think of themselves as moral animals where would they not be inculcated in this kind of a progress story, they would find it harder to think of themselves as acceptable as they come with the paycheck back home at the end of the month. But the experience that they have of the unacceptability of the world is problematic. Many people would say that the experience, this is a standard international law point, that the experience of unacceptability can be enshrined in sovereignty. Sovereignty. Hershlautopat was typically one of these people. Many human rights environmental activists, many people in the cause of fight against impunity feel that sovereignty is the problem. Sovereignty they feel is a problem because it's a kind of egoism. It's a way of turning inside. It's a way of keeping the world outside. It's just being obsessed about me and my power and my values and my preferences, however, whatever their nature. And if that is the negative experience, then of course the experience itself suggests what the project should be. The project should be community, international community. So we're all familiar with that kind of an understanding of the world. So here it is, we as lawyers are in the business of turning an unacceptable world of sovereign egoists into a wonderful world of communitarian sitting by the campfire and singing we shall overcome every evening. And if it were like that, if that were the way people felt about the world, then rabbits would be fine and all they would need to do was to get out there to the pond and transform the then egoistic small communities into a big community of the forest, for example. So not everybody feels this as the problem. As a matter of fact, many people feel that something they might call, for instance, empire is the problem. And this might be empire felt in many different ways. It would be the empire of, let's say, neoliberalism or American empire or the empire of capitalism, empire of a suffocating ideology of some kind, a totalitarian thing, some aspect of the world that doesn't allow us to express our identity, our identity in small groups or our identity as individuals. It's an experience that we are being not allowed to express ourselves. We suffocate inside this homogenizing world. And from this, we, of course, then this analysis of the situation, this malaise immediately suggests another project which is the project of autonomy. Now here it is, the international lawyers that we are feel the world in terms of two different kinds of experience. On the one hand, the experience of untrammeled egoism. They do just what they want there. We need to build a community. We need to tie us and take hands with each other. That's what we want to have. On the other hand, there are those people, well, there's too much taking of hands here, dammit. I want to take control of my own hands, of my life, of everything that's special about me. Of course, these are both part of the problem and part of the solution. The experience that we as human beings have of the world isn't homogeneous. It is different. We feel the world's weight in different ways. We feel the weight of the world as alienated individuals bumping into each other like ships in the night, only obsessed about themselves. Or we feel the world as this religious sect in which we are all compelled to sing the same hymns, to think the same thoughts, to dress the same way, etc. And those opposite experiences give us two opposite projects. Now, however, again, these opposite projects aren't transparent. It's not obvious what autonomy and community mean in their positive descriptions to those who aren't involved in the describing business itself. So every autonomy, every call for autonomy is a call for sovereignty. My personal sovereignty, the sovereignty of my tribe, the sovereignty of my country, etc. In which case it starts to feel terribly egoistic and a part of the problem. Every community will sooner or later start to feel suffocating. We feel the imperial weight descending upon us. Yesterday it was all fun, but we can't keep on singing this song day in, day out. There have to be other songs and other ways of life. And so the game starts all over again. Now, international law or being a rabbit is a wonderful experience to the extent that it allows us to think of a moment that's outside of our present existence. To think of ourselves as involved in a real effort, perhaps a collective effort in which the negative experiences of the present would be transcended in a future that's bright and shiny and into which our institutions are taking us. The problem with that is that we feel as I said, the world's weight differently. But in opposite ways, in ways that enable us collectively, but perhaps more interestingly, individually to both want and not want what we intuitively first would like to have as our world-changing project. So the awareness of this awareness of the ambivalence of the world and of myself, of every rabbit has made it for me impossible to think that there actually is in some way an internal morality to being a rabbit that would make being a rabbit somehow in some evaluative scale more important, meaningful than being a duck. So I said moments like for instance when you want to run away from somebody that you want to be a rabbit rather than a duck and then it's good fortune if you happen to have that education and those ears and you were able to go that fast, but it's not always like that. And if there's a pond and you have to cross then you know what you have to do. For best of my students I recommend that they are prepared to be both one and the other, that they can flip the coin that they can immediately see both sides of those professional alternatives that are being offered to them. There is one final thing I promise to say something about the politics of international law today. So I want to set up a use corgans prohibition to those of my left friends who in the course of the years together with me have insisting on the politicization of this or that. We know it's a regular left theme to look at the politics of international law of economics to say it's political. Having said that often enough and having gone through these images often enough it has, I can report to you come to transpire that that evocation of the political is meaningless. It doesn't mean anything. If you catch me still doing this in the future, well I'll give you 50 euros to put it no higher than that but so I want to invoke a prohibition of ever to look at the politicization of this because to call for the politicization of this or that would be to insist on it being a duck or a rabbit. But there are questions of of importance out there questions of preference questions of distribution questions of good and less good choices how do we go about them. So one prevalent phenomenon in my professional life has been the fragmentation of international law and I don't want to go into this in any detail but I've come to understand fragmentation as a professional worry among ambitious operators that the legal vocabulary that speaking rabbit no longer carries the kind of authority that it used to and therefore we have to speak trade law, economic law security law, human rights law environmental law sports law you have it. Now that development has been conventionally discussed in terms of the politics of expertise we become more and more technical in our expertise in our demand of expertise in our recognition of what is authoritative in the languages that parade in the international political field. Now it seems to me that the relationship between law and politics is not the only relational thing in the world that can be articulated in terms of an analysis like this what is environmental law what is the law of the sea what is chemical law for example. In the course of the fragmentation project I look at some examples and I found that for instance if one imagines a carriage of chemical substances in to take an almost random example in the Baltic sea one can articulate that in legal terms in nine different languages nine different if you wish rule schemes nine different professional sensibilities nine different frames law of the sea, human rights chemical law, Baltic law laws of the coastal states etc etc. And each of these articulations carried with it a slightly different suggestion as to how one should deal with that problem. I suggest to you that this problem is endemic and that everywhere every aspect of our contemporary lives can be recounted in easily half a dozen doesn't really matter how many expert languages and each of those languages comes with it's own cultural, sociological historical and of course economic biases. The task for active left leaning by not also not so left leaning lawyers to trying to operate in this world in a fashion that would be politically effective would today it seems to me call for what I've called the politics of re-description. Politics of re-description would be about looking at a problem out there in the world and describing or in this case re-describing the problem in terms of the language of which we, me and my friends feel that we are authoritative to deal with that problem in the way we want to deal with this. The politics of re-description is made all the easier because those who are responsible for the fragmentation for the rise of the rule of technical languages are usually committed to believing that each language is an ontology or addresses an ontological aspect of the world that each language is the authentic representative of what it is that it purports to represent. If there is one thing that rabbits learn in rabbit school it is that there are no such languages and that rabbits are that the special professional ability of rabbits is to jump from one language to another to be native language speakers in as many languages as they have political projects and I end with that ambiguous note. Thank you.