Response: International Law and the Constitutive Virtues of Antagonism

by Jean d’Aspremont*

It is encouraging to finally read a piece that seriously debunks the narrative of the failure of international law and all the presuppositions that underpin it. And it is even more exciting to find such a repudiation being articulated in one of those top-tier scholarly journals where the idea of a failure of international law is so often invoked to justify reform or intervention.

In The Work of International Law, Monica Hakimi captures some of the key presuppositions that nourish the narrative of international law’s failure with the descriptive notion of the “cooperation thesis.” In her article, the cooperation thesis refers to the shared assumption that, in a chaotic and decentralized international arena, international law is meant to help global actors curb their disputes as well as promote their shared goals. Said differently, Hakimi uses the cooperation thesis to describe the common belief of international lawyers that international law deters, defuses and resolves conflicts while also advancing common aims. In Hakimi’s view, the cooperation thesis is not only the manifestation of some core presuppositions of 21st century international lawyers, but also functions as an evaluative tool whereby international lawyers continuously measure the performance of international law. The cooperation thesis enables international lawyers to portray existing and persisting conflicts as pathological cases of international law’s failure. As a result, the cooperation thesis (and the presuppositions it rests on) allows international lawyers to pinpoint some deficiencies of international law, thereby justifying their own reformist enterprises or interventions. After spelling out these scholarly ailments, Hakimi embarks on a repudiation of the presuppositions that form the cooperation thesis. She does so by navigating through an impressive sample of doctrinal and theoretical scholarly works, demonstrating an admirable mastery of contemporary debates about international law. Her charge draws on the idea that international law itself enables conflicts, which explains why existing and persisting conflicts do not necessarily reveal any failure or deficiency of international law. She concludes that conflict is simply part of how international law works and why global actors engage with it.

The argument is compelling. As far as the main claim is concerned, there is very little I would disagree with. I personally welcome this charge against the dominant ethos whereby international law is uncritically presented as both the antidote to conflicts and as a cooperation-enhancing pill. I have always believed that there are better ways to articulate (and vent) the dominant cosmopolitan spirit of international lawyers[1] than through liberal constructions that relegate disruption and antagonism to the periphery.[2] Yet—and this is where my criticism lies—I find that the courage and erudition of Hakimi could have been pushed further. I contend here that her compelling critique stops prematurely. What is more, because she falls short of bringing her charge to completion, it may be that she ends up rehabilitating the very attitude that she seeks to debunk.

My criticism about the incompleteness of Hakimi’s argument and its possible contradictions develops in two ways. First, I start with Hakimi’s claim that conflict is part of how international law works. In her view, international law “facilitates” and “enables” conflict while also providing a share vocabulary to disagree and “define, understand, and have a dispute.” She similarly stresses that international law provides the requisite ground rules for conflict and allows them to communicate their discontent. Whilst I find such contention incontestable, I think that the relationship between international law and conflict is not fully appreciated. In my view, Hakimi’s claim fails to recognize that international law and conflict are mutually constitutive. On the one hand, international law constitutes the social reality where it is meant to intervene[3] and thus the categories of how international lawyers and global actors experience and see the world.[4] This social reality constituted by international law is itself conflictual.[5] International law is constitutive of the very conflict in which it is invoked and meant to intervene.[6] It is no coincidence that those conflicts known to experts invoking international law are, to give but a few examples, between states over borders and exclusive economic zones, or with non-state entities about access to government or effective control over a territory, or with individuals whose rights have not been sufficiently complied with. On the other hand, the conflicts constituted by international law—and the antagonisms they epitomize—are constitutive of the argumentative practice of international law. Short of antagonism, international legal claims and discourses would have no raison d’être. If we take pains to articulate international legal arguments, it is because we seek to universalize our own interests when they seem compromised by competing interests. [7] It could even be said that the making of any legal claim presupposes antagonism and conflict without which there would be no need to seek refuge in the universality of international law. Hakimi’s claim falls short of acknowledging that the relationship between international law and conflict is not one of facilitation but mutual constitution.

Second, and most importantly, my criticism of Hakimi’s treatment of the cooperation thesis builds on what I perceive as being a contradiction which is itself the result of her charge being not pushed far enough as was explained above. Indeed, she claims that conflicts facilitated and enabled by international law may be beneficial and conducive to cooperation. She writes that “an intense or prolonged conflict is often an ingredient for such cooperation” and adds that enabling conflict is part of the project of suppressing it, concluding that conflict and cooperation are symbiotic and interdependent. The problem with her position is not that the causality between conflict and cooperation is undemonstrated. The problem is primarily that in positing a symbiosis between conflict and cooperation, she upholds the dichotomy between two idealized and objectivized situations, namely those of conflict and cooperation, and vindicates the possibility that the latter replace the former. I wonder whether this claim about the symbiosis between conflict and cooperation ends up doing exactly what the paper seeks to repudiate, i.e. embracing the presumption that part of international law’s project is to suppress conflict. The impression that the paper ultimately salvaged the ideal of a suppression of conflict by international law is reinforced by the celebration, at the end of the paper, of a new “research agenda” that allows international lawyers to study when “conflict help(s) stabilize the global order and reduce the risk of devastating war.” The line between this new “research agenda” and the necessity to suppress conflict found in the cooperation thesis seems very thin. All-in-all, the reader is left with the feeling that the paper eventually upholds the liberal foundations of the cooperation thesis by negating the constitutive power of conflict and vindicating the need to suppress it. It is my impression that, had Hakimi pushed her claim further, she would not have run the risk of rehabilitating one of the presuppositions at the heart of the cooperation thesis.

Notwithstanding my regret that the claim elegantly articulated by Hakimi is not pushed further at the risk of creating contradictions, the paper demonstrates a great command of doctrinal and theoretical debates about international law and usefully challenges discourses about the failure of international law. Yet, I am left with one ultimate and lingering question. After all, if we are not able to fully dispose of the cooperation thesis and of some of its presuppositions, as is unintentionally shown by the article, it is maybe because the suppression of conflict by international law belongs to these myths that nourish and perpetuate what we do and want to continue to do. In other words, it may be that the idea of a suppression of conflict by international law remains a necessary justificatory paradigm which allows international lawyers, on the entire spectrum of approaches, to legitimate their projects, critiques, reforms, and interventions as much as their modes of legal reasoning. Be they liberal reformers identifying insufficiencies within international law to justify their reforms or interventions, or be they critics in need of tautologies and contradictions to justify their post-structuralist skepticism, international lawyers may be condemned to keep these myths[8] alive,[9] whether or not they actually believe in them. What if the cooperation thesis was simply one of these foundational myths?

 Jean d’Aspremont is a Professor of Public International Law, University of Manchester, Professor of International Legal Theory, University of Amsterdam, and Director of the Manchester International Law Centre (MILC).

[1] See Sahib Singh, The Potential of International Law: Fragmentation and Ethics, 24 Leiden J. Int’l L. 23, 43 (2011) (“International law was animated by a cosmopolitan universalism, but international lawyers forgot the spirituality of this venture when universalism was demonstrated as an impossibility.”).

[2] On such an understanding of liberalism, see Chantal Mouffe, The Return of the Political 121 (1993).

[3] As far as the definitional power of international law is concerned, see Philip Allott, The Idealist’s Dilemma: Re-Imagining International Society (June 9, 2014), (“The whole of the law is a vast work of fiction, a masterpiece of the human imagination, creating its own entirely artificial reality. Lawyers—even practising lawyers—are creative writers, re-inventing the story of the law every day.”). See also Philip Allott, Language, Method and the Nature of International Law, 45 Brit. Y.B. Int’l L. 79, 118 (1971); James R. Crawford, International Law As Discipline and Profession, 106 ASIL Proceedings 471, 486 (2012) (“We are collectively part of the makers of that world”); Jack M. Balkin, The Proliferation of Legal Truth, 26 Harv. J.L. & Pub. Pol’y 101, 103 (2003) (“Law has power over people’s imaginations and how they think about what is happening in social life.”).

[4] See generally David Kennedy, International Legal Structures (1987). See also Balkin, supra note 3, at 104 (“It is a form of cultural software that shapes the way we think about and apprehend the world.”).

[5] Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship 30 (1999) (“We must accept the proposition that there is nothing natural about the legal order, that it is a constructed social world that could be constructed differently.”).

[6] The ability of law to define the very conflict it intervenes in has been recognized as one of the most critical forms of power. See Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings L.J. 805, 838 (1987) (“Law is the quintessential form of symbolic power of naming that creates the things names.”). See also id. at 837 (“What is at stake in this struggle is monopoly of power to impose a universally recognized principle of knowledge of the social world . . . .”). On the idea that Bourdieu and Foucault allowed us to better understand how lawyering is connected to knowledge production, see Nikolas M. Rajkovic, Rules, Lawyering, and the Politics of Legality: Critical Sociology and International Law’s Rule, 27 Leiden J. of Int’l L. 331, 335 (2014). This idea is now widely accepted in (international) legal scholarship. See Martti Koskenniemi, The Politics of International Law: 20 Years Later, 20 Eur. J. of Int’l L. 7, 11 (2009); Balkin, supra note 3, at 113 (“Law is most powerful when we see the world through its eyes, when its understanding becomes part of our understanding, and when its truth becomes part of our truth.”). See also S. Marks, International Judicial Activism and the Commodity-Form Theory of International Law, 18 Eur. J. of Int’l L. 199, 202 (2007).

[7] On the universalizing effect of legal claims, see Bourdieu, supra note 6, at 844; Martti Koskenniemi, Hegemonic Regimes, in Regime Interaction in International Law: Facing Fragmentation 305, 311 (Margaret A. Young ed., 2012). Compare with Balkin, supra note 3, at 108 (“What law does, and can do, is proliferate ideas, concepts, institutions and forms of social imagination, which can attach themselves to, reorganize, and even displace existing forms of social understanding, social practice, and social reality.”). Such universality is elusive. See Martti Koskenniemi, The Mystery of Legal Obligation, 3 Int’l Theory 319, 324 (2011) (“Law’s power and attraction lie in its offering what appears a universal point of view, its ability to raise mere opinions onto a status of what is (universally) right. And yet this universal standpoint constantly eludes us. Rules show themselves as mere interpretations, principles are challenged by equally powerful counter principles, etc.”).

[8] On the myth of Westphalia, see generally Andreas Osiander, Sovereignty, International Relations, and the Westphalian Myth, 55 Int’l Organization 251 (2001); Pärtel Piirimäe, The Westphalian Myth and the Idea of External Sovereignty, in Sovereignty in Fragments: The Past, Present and Future of a Contested Concept 64 (Hent Kalmo & Quentin Skinner, eds., 2010); Benno Teschke, The Myth of 1648: Class, Geopolitics, and the Making of Modern International Relations (2009). More generally, see David Kennedy, International Law and the Nineteenth Century: History of an Illusion, 17 Quinnipiac L. Rev. 99, 121 (1997); Martti. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 95, 143 (2001).

[9] See generally Jean d’Aspremont, International Law as a Belief System (forthcoming 2017).