Thursday, April 2: Morning 125

tive power environment. Much of modern international law is the product of indi-
viduals performing the decision functions I reviewed. Individuals created the
human rights movement and the environmental movement. New Haven is con-
cerned with clarifying a jurisprudence for these innovators and those who wish to
join them.
That is, in brief, the view from New Haven.

SUBVERSIVE TRENDS IN THE JURISPRUDENCE OF INTERNATIONAL LAW

By Hilary Charles-worth*

The excitement and turmoil of recent developments in domestic legal theory has
taken some time to infiltrate discussions of the theory of international law. In
the last few years, however, there have been some provocative and challenging
attempts to rethink the basis of traditional international legal theories, drawing on
postmodern analyses of national legal systems. I will focus on two manifestations
of the postmodern mood: "critical" international legal studies and feminist analy-
ses of international law.

Critical International Legal Studies

Since the late seventies, critical legal scholars have challenged a view of the
law as rational, objective and principled by studying the indeterminacy of and
contradictions inherent in legal rules.1 The function of legal systems in legitimating
the political, social and economic status quo have been examined and the notion
of the "false necessity" or essential contingency of legal systems and legal truths
developed in a wide variety of contexts. A unifying theme in much critical legal
scholarship is the fundamental coincidence of law and politics and the futility of
attempts to carve out a separate, distinct sphere for legal truth.
At first sight, public international law may seem a particularly hospitable terrain
for these radical theories. International lawyers have long agonized about whether
their discipline can rightfully claim the epithet "law." The sustained critique of
the international legal order by developing nations has also contested the inevita-
bility or necessity of particular international law principles by asserting their cul-
tural bias and Western orientation. And yet most recent Western writing on
international law appears to remain impervious to the critical challenge and contin-
ues to assume a basic dichotomy between law and politics, a distinctive sphere
for international legal discourse, based either on natural law or positivist theories
about the authority of international law.
Some exceptions to this general lack of critical curiosity among international
lawyers have gathered (or been gathered) under the umbrella description of the
"New Stream."2 I propose to focus on the work of the Finnish jurist, Martti
Koskenniemi, as the most recent and most accessible current in the critical stream.
The essence of Koskenniemi's attack is contained in the arresting title of his
book, From Apology to Utopia: The Structure of International Legal Argument.

* Faculty of Law, The University of Melbourne.

'The literature on critical legal studies (CLS) is vast. For an overview, see MARK KELMAN, A
GUIDE TO CRITICAL LEGAL STUDIES (1987).
2
David Kennedy coined this term in A New Stream of International Law Scholarship, 7 Wis. INT-L
L.J. 1, 6 (1988). Nigel Purvis also uses it in a general descriptive sense in Critical Legal Studies in
Public International Law, 32 HARV. INTL L.J. 81, 88 (1991).

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 126 ASIL Proceedings, 1992

He claims that international law argument oscillates between apology—overlegi-

timizing explanations of international behavior—and utopianism, which is "inca-
pable of providing a convincing argument on the legitimacy of any practices." 3 It
is thus "singularly useless as a means for justifying or criticizing international
behaviour." Koskenniemi holds that the root of these contradictory tendencies in
international legal argument is the liberal assumption of Western international law.
Although international lawyers rarely explicitly acknowledge the liberalism of
much current international law doctrine, Koskenniemi unpacks the liberal founda-
tions of international legal principles such as self-determination, independence and
consent. Liberalism in an international context involves both the paramountcy of
state sovereignty, parallel to the centrality of individualism in traditional liberal
theory, and its concomitant, the impossibility of objective truth. The international
order is thus traditionally viewed as based on subjective, sovereign consent: "Out
of the separate decisions of individuals would emerge a social order which neces-
sarily reflected the separate ends and interests of each individual in the best possi-
ble way and which everybody therefore had good reason to agree with." 4 In
other words, liberalism claims to be a procedural, rather than substantive, political
theory, with sovereign liberty as its only commitment of value in the international
context.
How does the international community then resolve disputes between two sov-
ereigns, each invoking freedom of action? How does it reconcile "mutually oppos-
ing demands for individual freedom and social order?" The liberal notion of the
rule of law has the function of dispute resolution. Its essence is its objectivity and
neutrality, its promise of equal application of abstract principles, created through
the popular will. But the very notion of an objective legal order seems to conflict
with the liberal rejection of all but subjective, individual values. A fundamental
tension thus exists between the individualistic, sovereign-based nature of interna-
tional society and the communitarian justification for a legal system. Moreover,
the rule of law very quickly shows its unsatisfactory indeterminacy in resolving
international disputes.
From his analysis of this apparent logical contradiction in the liberal account of
the international legal order, Koskenniemi argues that international law cannot
live up to its promise of truly neutral objectivity and in fact is premised on a
number of substantive political values. For a start, the assumption that sovereign
states are the basic units of international society is a normative value. The major
problem identified by critics such as Koskenniemi is not that international legal
argument is basically highly political and value-laden, but rather that international
law achieves its authority precisely by denying its true nature, thus preempting
debate about the nature and desirability of the values it inculcates. Koskenniemi's
project is, then, to show that international legal argument cannot achieve the ob-
jective resolution of disputes, claimed as its principal virtue, with the aim of
"open[ing] up a possibility for alternative descriptive—and simultaneously
normative—characterizations of the world in which states live." 5 Once we can
observe the unstated political commitments of the present international legal
order, we are able to reimagine it. International lawyers must recognize, he says,

3
MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL
ARGUMENT 48 (1989).
4
Id. at 55.
5
ld. at xxiii. See also Nigel Purvis, supra note 2, at 482-83.

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 Thursday, April 2: Morning 127

that they must take a stand on political issues "without assuming that there exists
a privileged rationality which solves such issues for them." 6
What are the alternative, normative visions of the international community pro-
posed by critical scholars? Some critics have been wary of going beyond decon-
struction of traditional international legal argument because of their absolute denial
of any form of objective knowledge. Others, such as Koskenniemi, argue that
"critical-normative" practice is possible, although they are frustratingly vague on
what this actually entails. Koskenniemi argues that an international lawyer should
view his/her professional integrity not as a demand for " 'rigorous' legal analysis"
but rather "as a commitment to reaching the most just solution in the particular
disputes he [she] is faced with." This will involve going beyond legal argument,
to "sociological enquiries into causal relationships and political enquiry into ac-
ceptable forms of containing power . . . so as to grasp . . . issues [of international
concern] closer to what is significant in them." Koskenniemi describes an essen-
tially contextual, experiential justice, which makes no claim to objectivity:
The international lawyer should take seriously the partial character of his experi-
ence. He possesses no more objective information about what solutions to offer
than the parties in the conflict he deals with. . . . [He should] refusfe] to engage
in discussions about general principles or lawlike explanations of international
conduct. Rather than be normative in the whole (and be vulnerable to the objec-
tions of apologism-utopianism) he should be normative in the small. He can at-
tempt . . . to isolate the issues which are significant in conflict, assess them with
an impartial mind and offer a solution which seems to fulfil the demands of the
critical programme. . . .
Answers to the questions about what to do cannot be meaningfully given without
taking a stand on what is possible and good to do in the particular circumstances
in which the problem arose. And this involves venturing into history, economics
and sociology on the one hand, and politics on the other. . . .
[This project of practical reasoning] gives no intrinsic weight to solutions, once
adopted, and is ready to make constant adjustments once this seems called for. It
positively excludes imperialism and totalitarianism. Beyond that, however, it
makes no pretention to offer principles of the good life which would be valid in a
global way.7
How far Koskenniemi's alternative, contextualized, vision of the task of interna-
tional law truly escapes from objectivism can be debated. It also does not provide
any criterion to distinguish between competing understandings of the appropriate
resolution in any particular dispute. The audience Koskenniemi is addressing often
seems a very narrow one: his message appears to be directed more at Western
male international legal advisers to states than at international lawyers working for
nongovernmental organizations, minorities, Third World nations, groups without
formal international legal personality and women. The promise of the critical enter-
prise in international law is limited: to expose more fully the political nature of
legal argument and to explain its discourse, reminding international lawyers of
"[their] painful task of living and choosing in the midst of political conflict."8

Feminist Analyses of International Law

Feminism has taken even longer than critical theory to have reverberations in
international law scholarship. One reason for this must be the particularly male-

"Id.
7
Id. at 496-97.
g
ld. at 501.

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 128 ASIL Proceedings, 1992

dominated nature of our discipline in both its academic and practicing branches.
And the traditional stuff of international law, relations between nation-states, does
not apparently have the same immediacy of impact on women as, for example,
family or discrimination law.
Although the development of feminist legal theory is contemporaneous with and
in some senses parallel to the CLS movement, feminist legal theory has a more
focused, more powerful and more difficult project. (I am using the term "feminist
legal theory" in a very general way here and not doing justice to the range of very
different approaches it covers.)9 Feminist jurisprudence shares the CLS concern
with the political and contingent nature of liberal legal argument and the law's role
in reifying and justifying social, political and economic inequalities. But it adds a
quite different dimension to this project by arguing that liberalism is as much
gendered as it is cultured. Feminist legal theories tend also to be both much less
and much more ambitious than CLS. Feminist jurisprudence is less ambitious in
that generally its proponents do not aim to present a single, unified, seamless
theory about the law; indeed they delight in showing the seams. Feminists have
acknowledged that there are many different voices and experiences and realities
not reflected in the law. Feminist theory is more ambitious than CLS in the sense
that it is not consumed with avoiding objectivism and flies an unequivocal flag for
the fundamental value of women's equality with men.
A major issue for any feminist international legal theory (apparently irrelevant
to the New Stream vision of a very contextualized international law) is whether
women's voices can be identified in an international framework. Some feminists
of color and from developing nations have questioned whether it is possible to
universalize a particular understanding of feminism, charging white, Western femi-
nists with inappropriately assuming that their concerns are shared worldwide.
"Have we got a theory for you!"—the title of such a critique of Western femi-
nists—sums up the sense of a new, feminist brand of colonialism. Since the very
basis of feminist theory is the experience of women, there will be an inevitable
tension between universal theories and local experience in any feminist account of
international law. But patriarchy and the devaluing of women, although manifested
differently within different societies, is almost universal. As Peggy Antrobus, Di-
rector of Women and Development at the University of the West Indies, told last
year's Women and Environment consultation held in Florida:
[Although we are divided by race, class, culture and geography, our hope lies in
our commonalities. All women's unremunerated household work is exploited, we
all have conflicts in our multiple roles, our sexuality is exploited by men, media
and the economy, we struggle for survival and dignity, and, rich or poor, we are
vulnerable to violence. We share our "otherness," our exclusion from decision
making at all levels.
Although we can assume no monolithic "women's point of view," it is important
to acknowledge commonalities across cultures.
Critical international legal theories, such as Koskenniemi's, offer some valuable
insights for feminists. For example, Koskenniemi's observations on the notion of
statehood could be used to support a feminist analysis of the state:
The conceptual framework which sees the world as naturally divided into States
neither explains conflict nor justifies its solution. Competing descriptions refer us

9
For a helpful discussion of some of the strands in feminist legal theory, see Frances Olsen,
Feminism and Critical Legal Theory: An American Perspective, 18 INT'L J. Soc. L. 199 (1990).

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 Thursday, April 2: Morning 129

constantly to voices crying out for the realization of economic and spiritual values.
Statehood was merely a way to silence those voices. . . . Rethinking of contexts
will involve imagining social institutions which will no longer permanently privi-
lege some voices under a category of statehood which has no particular value by
itself.10
His closing admonition to international lawyers could encourage feminist scholars:
"It is not that we need to play the game better, or more self-consciously. We need
to reimagine the game, reconstruct its rules, redistribute the prizes."
But it is clear that Koskenniemi's project and those of feminists are very differ-
ent indeed. He does not observe the deeply gendered nature of the current interna-
tional law game: that the occasional woman may be allowed to compete, and even
win token prizes, "but [that] those who write the rules, assess qualifications for
participation, train the players, referee the game, own the concession stands,
announce the game, and evaluate the winners retain masculinist identities."11 It
is unlikely that Koskenniemi's reimaginings of the game will be any different in
this respect: gender is simply not anywhere on his agenda.12
Like other New Stream scholars, Koskenniemi has as his main concern the
discourse of international law, the recurring rhetorical structures of its doctrines
and arguments. Much more important for women is attentiveness to the silences
of international law and the production of silence from half the world's population.
Feminist international lawyers might respond to Koskenniemi's theory by pointing
to the role of patriarchy in generating an overwhelming silence from women.
Koskenniemi's ideal of contextualized justice, which avoids global prescriptions
for conduct, offers little to women: the subjectivity celebrated depends on exclud-
ing the feminine. His version of practical, experiential reasoning arrives at absolute
rejection of imperialism and totalitarianism in the international order; all other
forms of justice are seen as contextual. Giving priority to the eradication of imperi-
alism and totalitarianism does not address the ways women are oppressed
globally.13
If imperialism and totalitarianism are totally rejected in Koskenniemi's proposed
world order, why not also the much more universal phenomenon of male oppres-
sion of women? In this sense, the New Stream vision of international law is as
unsatisfactory as that presented by scholars in the liberal tradition. For different
reasons, both theories purport to avoid the endorsement of objective values; and
yet failure to take an explicit, normative position on the subordination of women
is implicitly normative through supporting the status quo.

10
Martti Koskenniemi, supra note 3, at 499.
11
Anne Runyon & V. Spike Peterson, The Radical Future of Realism: Feminist Subversions ofIR
Theory, 16 ALTERNATIVES 67, 89 (1991).
12
Koskenniemi's impressive familiarity with a great range of philosophical, political and sociological
literature does not appear to extend to standard feminist works, although feminism has been one of
the most lively and productive fields of intellectual enquiry for more than two decades. This gap is
manifested in a variety of ways. There is, for example, the consistent assumption that all international
lawyers and actors are men; all the author's analysis and counsel is of or addressed to the third-person
masculine. While women may be thoroughly used to their invisibility in traditional scholarly writing
about international law, they expect more of those who set out to deconstruct the vocabulary and
fabric of the discipline, who take on the task of analyzing the power of language, who recognize in
other contexts the influence language has on determining reality.
"The end of imperialism, for example, does not signal the end of discrimination or violence against
women. The complex and often contradictory position of women in nationalist movements and in the
decolonization process has been well documented.

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 130 ASIL Proceedings, 1992

How then do feminist legal theories translate into international law? Although
there has been some important work done on feminist analyses of human rights
law, work in the more mainstream doctrinal areas of international law has just
begun. One central feminist argument is that the international legal system has
developed in a lopsided and partial way and privileges a masculine reality. Interna-
tional legal processes are not gender neutral; they affect the position and role of
women in society and their relative position to men. An example of this is the
crucial dichotomy drawn between public and private spheres of action. This dis-
tinction has been central to liberal accounts of the law; it has been invoked as the
boundary for societal, legal intervention with the otherwise untrammelled liberty
of the individual and is reproduced in a variety of ways in international legal
doctrine. Thus the UN Charter makes the (public) province of international law
distinct from the (private) sphere of domestic jurisdiction; the acquisition of state-
hood or international personality confers "public" status on an entity; the law of
state responsibility sorts out (public) actions for which the state is accountable
from those "private" ones for which it is not; even international human rights
law, regarded as radically challenging the traditional distinction between interna-
tional and domestic concerns, targets "public," state-sanctioned violations rather
than those that have no direct connection to the state.
The distinction is not just descriptive: the public sphere is assumed to have
greater communal significance than the private because it is the appropriate site
for legal regulation. Although the line between public and private domains may
vary in different societies and cultures, there is a global pattern of identification
of the feminine gender with a private, lesser, sphere.
In Western domestic legal systems, the distinction drawn between the public
and private supports the sexual violence on which patriarchy is based. Most
women's lives are conducted outside the scope of traditional international law.
This is most striking perhaps in the area of human rights law. The core human
rights all protect individuals from public actions. But the most pervasive harm
against women tends to occur within the inner sanctum of the private
realm—within the family. As in domestic law, the nonregulation of the private
sphere legitimates self-regulation, which translates inevitably into male domi-
nance.
By failing to take the phenomenon of male domination of women into account,
basic principles of the international order such as statehood and self-determination
can reinforce oppression against women.'4 Feminist analysis needs to document
the ways in which statehood currently institutionalizes patriarchy, for example,
through its complicity in systemic male violence. It also must show how interna-
tional and national power relations depend on certain notions of masculinity and
femininity and that women's exclusion from power within states is an issue of
domination.
The task for feminist international lawyers, then, is to challenge the objectivity
of the existing male-defined international order so as to weaken its imaginative
grip; to point out the blind spots of more radical theories; and to insist on inclusion
in a new agenda for international law. Richard Falk's "Grotian moment" must be
seized by feminist scholars. The outcome of this project may be the most far-
reaching legacy of this Decade of International Law.

'••Self-determination, for example, is a right of "peoples," entities defined ethnically or culturally,

even if half the persons comprising the people have little or no power in that community.

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