The Fate of Public International Law: Between Technique and Politics

TLDR

Public international law oscillates between cosmopolitan ideals and technical specialization, fragmenting into functional regimes such as trade, human rights, and environmental law, yet neither constitutionalism nor pluralism adequately explains this evolution, and treating law merely as a mechanism for state policy overlooks its role as a constructed narrative. International lawyers must employ international law’s language to express the politics of critical universalism rather than adopt new managerial jargon.

Abstract

Public international law hovers between cosmopolitan ethos and technical specialization. Recently, it has differentiated into functional regimes such as ‘trade law’, ‘human rights law’, ‘environmental law’ and so on that seek to ‘manage’ global problems efficiently and empower new interests and forms of expertise. Neither of the principal legal responses to regime‐formation – constitutionalism and pluralism – is adequate, however. The emergence of regimes resembles the rise of nation States in the late nineteenth century. But if nations are ‘imagined communities’, so are regimes. Reducing international law to a mechanism to advance functional objectives is vulnerable to the criticisms raised against thinking about it as an instrument for state policy: neither regimes nor states have a fixed nature or self‐evident objectives. They are the stories we tell about them. The task for international lawyers is not to learn new managerial vocabularies but to use the language of international law to articulate the politics of critical universalism.