Annual T.M.C. Asser Lecture in The Hague

December 5, 2018

The 29th of November 2018, I attended the Fourth Annual T.M.C. Asser Lecture that took place at the Academy Hall of the Peace Palace in the Hague. Many people working in the human rights field in the Netherlands – not only in academia, but also people working at different Ministries, NGOs and other institutions – were present. I felt truly honored that I was invited by the Netherlands Network for Human Rights Research (NNHRR), and it was great to see so many colleagues.

The title of the lecture of Prof. Martti Koskenniemi was “International Law and the Far Right: Reflections on Law and Cynicism.” A few days before the lecture, an article was published in the Dutch newspaper NRC about this lecture, available here (in Dutch). However, before prof. Koskenniemi took the floor, prof. Ernst Hirsch Ballin (President of the T.M.C. Asser Instituut) delivered his opening address, after which prof. Janne Nijman, who is the Academic Director of the T.M.C. Asser Instituut, introduced prof. Koskenniemi as well as the topic of his lecture to the audience.

Prof. Martti Koskenniemi 

Prof. Koskenniemi is a professor of International Law at the University of Helsinki. He is well known for his critical approach to international law. I had the honor to meet him a couple of years ago during a conference in Venice, Italy. Back then, I had the chance to speak with him for 20 minutes about my PhD research. I remember that he was very critical about looking at cultural practices, like Female Genital Mutilation/Cutting (FGM/C), from a human rights or international law perspective. His opinion struck me and I started to read his academic work. I do refer to his academic articles in the introduction of my PhD thesis. His book From Apology to Utopia; The Structure of International Legal Argument (first published 1989) is his most famous publication, which presents a critical view of international law as an argumentative practice that attempts to remove the political from international relations. It asserts that international law is vulnerable to criticisms of being either an irrelevant moralist utopia or an apology for Realpolitik.

The Annual T.M.C. Asser Lecture

Although I attended quite some conferences over the past months, it was the first time this year that I took my Ipad to make elaborate notes. For a moment I felt like I was a student listening to a lecture of a professor at the university again. I found it such an interesting and thought-provoking lecture. And time passed so quickly! Some people said after the lecture that it was in fact not a lecture, but a play or performance. And I do agree: prof. Koskenniemi performed very well!

He started with the emergence of the law profession in the 1870s and gave a short overview of the history of international law. He explained that a main issue nowadays is that institutions became too bureaucratic. The protesters we see on the streets (to which he referred as “the protest movement”) are, according to Koskenniemi, not interested in the reform of these institutions. Instead, they are angry and there is anxiety. Furthermore, he explained that: “They are not angry because they are left behind, but because they are defeated.” I then asked myself the question: but who is “they”?  Koskenniemi answered that question quickly by referring to the lost of “white male privilege.” He explained that a new cultural hierarchy is emerging. The while male population have the perception that they are now at the bottom: “And what do you do, when you feel that you are at the bottom? You take back control!” In other words: the white male population aims to reestablish the cultural hierarchy that existed before. He argued that many people think that this is about economic deprivation. However, Koskenniemi disagrees and argued that it is about the loss of cultural hierarchy and wish to reestablish that. Then he referred to the concept of “cynism,” which Koskenniemi defines as “the gap between the expectations of people and the actual experience that people have.”

Then he stepped back in history again, and referred to – among others – Wolfgang Friedman, who was a German American legal scholar who wrote about the changing structure of international law (moving from co-excision to co-operation). He described why and how specialist regimes were emerging in the field of international law, for example: trade law, investment law, humanitarian law, environmental law, etc.. Also, a new morality was emerging, namely: human rights law.

Prof. Koskenniemi then moved to the 1990s and explained that this was a problematic decade, because of two major experiences:

  1. Problem of knowledge: International lawyers started to deal with fragmentation, because trade lawyers and security lawyers live in two different worlds. We know the world in too many ways. Knowledge is breaking up in different regimes that are fighting.
  2. Problem of politics: The proliferation of rights that were raised in 1970s in response to reasonableness, good faith, but allowing abuse by the administration. All our preferences were translated into rights of the rights holders and the European Court of Human Rights and the UN committees started to balance those rights: “Everything was a right, meaning nothing was a right.” Prof. Koskenniemi explains that justice was breaking up in rights, but that those rights were fighting against each other – and how do you choose?

Then, prof. Koskenniemi referred to some important authors to explain the above. First, he referred to Lauterpacht and his book “The function of law in international community” that was first published in 1933. Important aspects in Lauterpacht’s work are the condemnation of sovereignty and statehood. Secondly, he referred to Karl Polanyi’s book “The Great Transformation” that was first published in 1944. In this book, the question how nazism was possible and how fascism came up are relevant. According to prof. Koskenniemi, the birth of “cynicism” was in the 1990s, with the collaps of the European social democracy. He explained that a large group of people felt politically homeless: “Clinton and Blair are speaking the language of human rights to their audiences.” According to him, this is a failure of the left.

But what are the sources of cynicism? There are two important things, and this is exactly what the far right uses, according to prof. Koskenniemi. 1. Rejecting of expert knowledge: there is a gab between what is true and what is truthful, and between what is politically just. Kant has been saying this already: critique of knowledge, the just world. What do we think is right and where justice lies? As long as we are good human beings, we can deal with that. There is a difference between political moralist and a moral politician. Most important thing in our life is not to know what the technical correct response is. Political moralist: only to get their way in a negotiation. Moral politician: think about the world not only from own perspective, but perspective of other. It is not surprising, but it is the piece of knowledge that has been forgotten. 2. Rejecting politics: There is not authentic politics. We can’t asses society this way. Example of investment treaties and panel discussion with economists, lawyers, etc. even if you are an expert, you don’t really know.

According to prof. Koskenniemi, there are two ways to go around this. You need to be strategic: “It is a jungle out there. You cannot change the world without the knowledge. It is a question about personal strength.” However, he is also realistic and admits that we can’t leave it there. On the question: “Is it just tactics and strategy and how to go about it?” he answered: “No, but it is also about utopia in a particular sense.” He explained that law is about performance. Can we perform utopia? He explained with a picture of a painting of the French Revolution that there was a time that some people performed Utopia. It is a story full of performances: 1795. He then made a connection to the 1990s, where the reform of the security council failed. Then, prof. Koskenniemi came to the end of his lecture and concluded: “When the next protest march comes in, you should talk with them about justice, peace and equality and put that into practice. Because if you don’t, the only alternative is cynicism.”

After the lecture, there was a Q&A session, followed by drinks. It was so good to have time to meet all colleagues, have a drink and catch up. All in all, I absolutely enjoyed this afternoon. Thanks again for the invitation! Truly inspired I took the train back home from The Hague.

A short video of the event was created. You can watch it by clicking on the picture below. The a recording of the full lecture is available here.