Orford, Anne --- "Embodying Internationalism: The Making of International Lawyers" [1998] AUYrBkIntLaw 1; (1998) 19 Australian Year Book of International Law 1
[*] Senior Lecturer, Faculty of Law, University of Melbourne. I thank my PhD supervisor, Hilary Charlesworth, for her comments on earlier drafts of this paper.
[1] JB White, Justice As Translation: An Essay in Cultural and Legal Criticism (1990) at ix.
[2] See, for example, MJ Glennon, “The new interventionism: the search for a just international law” (1999) 278 Foreign Affairs 2; FR Tesón, “International obligation and the theory of hypothetical consent” (1990) 15 Yale Journal of International Law 84; FR Tesón, “Collective humanitarian intervention” (1996) 17 Michigan Journal of International Law 323.
[3] See, for example, C Bellamy, Knights in White Armour: The New Art of War and Peace (1997); T Farer, “A paradigm of legitimate intervention” in L Fisler Damrosch (ed), Enforcing Restraint: Collective Intervention in Internal Conflicts (1993) 316; TJ Farer, “Intervention in unnatural humanitarian emergencies: lessons of the first phase” (1996) 18 Human Rights Quarterly 1; MR Hutchinson, “Restoring hope: UN Security Council resolutions for Somalia and an expanded doctrine of humanitarian intervention” (1993) 34 Harvard International Law Journal 624; L Minear and P Guillot, Soldiers to the Rescue: Humanitarian Lessons from Rwanda (1996); WM Reisman, “Some lessons from Iraq: international law and democratic politics” (1991) 16 Yale Journal of International Law 203; TG Weiss, “On the brink of a new era? humanitarian interventions, 1991-94” in DCF Daniel and BC Hayes (eds), Beyond Traditional Peacekeeping (1995) 3.
[4] See, for example, The World Bank, Governance and Development (1992); The World Bank, World Development Report 1997: The State in a Changing World (1997).
[5] See, for example, R Falk, “The Haiti intervention: a dangerous new world order precedent for the United Nations” (1995) 36 Harvard International Law Journal 341; JG Gardam, “Legal restraints on Security Council military enforcement action” (1996) 17 Michigan Journal of International Law 285; M Koskenniemi, “The police in the temple. order, justice and the United Nations: a dialectical view” (1995) 6 European Journal of International Law 325.
[6] M Foucault, The Archaeology of Knowledge (1972) 209.
[7] For a more detailed development of this argument, see A Orford, “Muscular humanitarianism: reading the narratives of the new interventionism” (1999) European Journal of International Law (forthcoming).
[8] For a useful rethinking of the “author-function”, see M Foucault, “What is an author?” in DF Bouchard (ed), Language, Counter-Memory, Practice: Selected Essays and Interviews by Michel Foucault (trans. DF Bouchard and S Simon) (1977) 113.
[9] On the political nature of the constitution of lawyers as “professionals”, see D Weisbrot, Australian Lawyers (1990).
[10] My treatment of the way in which international lawyers are produced draws on M Foucault’s conception of “technologies of the self”: LH Martin, H Gutman and PH Hutton (eds), Technologies of the Self: A Seminar with Michel Foucault (1988). See further the discussion in Part III below.
[11] T Threadgold, “Everyday life in the academy: postmodernist feminisms, generic seductions, rewriting and being heard” in C Luke (ed), Feminisms and Pedagogies of Everyday Life (1996) 280 at 281.
[12] Ibid.
[13] T Threadgold, “Critical theory, feminisms, the judiciary and rape” (1993) 1 Australian Feminist Law Journal 7.
[14] JE Grbich, “The body in legal theory” in M Albertson Fineman and N Sweet Thomadsen (eds), At the Boundaries of Law: Feminism and Legal Theory (1991) 61 at 69.
[15] Examples of those who have explored these issues with reference to their own experience include J Gallop, Thinking Through the Body (1988); D Halperin, Saint Foucault (1995); T Moi, Simone de Beauvoir: The Making of an Intellectual Woman (1994); PJ Williams, The Alchemy of Race and Rights (1993).
[16] JE Grbich, n 14 above, at 61.
[17] Ibid. at 9.
[18] T Threadgold, n 11 above.
[19] For a broader example of a description of international law as a problem-solving process, see R Higgins, Problems and Process: International Law and How We Use It (1994) at vi (“the acceptance of international law as process leads to certain preferred solutions so far as ... great unresolved problems are concerned”).
[20] L Minear and P Guillot, n 3 above, at 161.
[21] S Jeffords, “The patriot system, or managerial heroism” in A Kaplan and DE Pease (eds), Cultures of United States Imperialism (1993) 535.
[22] Ibid. at 536.
[23] Ibid. at 545.
[24] Ibid. at 548.
[25] Ibid. at 549.
[26] Ibid. at 548.
[27] Ibid.
[28] Ibid.
[29] Ibid. at 550.
[30] Ibid. at 550-1.
[31] For a discussion of the range of workers in militarised countries who are dependent on military spending for their livelihoods, see C Enloe, The Morning After: Sexual Politics at the End of the Cold War (1993) at 38-70.
[32] M Koskenniemi, “The place of law in collective security” (1996) 17 Michigan Journal of International Law 455 at 473-4, 476.
[33] Ibid. at 489.
[34] Ibid.
[35] Ibid. at 490.
[36] Ibid. at 479.
[37] Ibid. at 478. For arguments that the actions undertaken by forces authorised by the United Nations in Iraq breached international humanitarian law, see JG Gardam, “Proportionality and force in international law” (1993) 87 American Journal of International Law 391; J Gardam, “Women and international humanitarian law” in W Maley (ed), Shelters from the Storm: Developments in International Humanitarian Law (1995) 205; Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties and Violations of the Law of War (1991); R Normand and C af Jochnick, “The legitimation of violence: a critical analysis of the Gulf War” (1994) 35 Harvard International Law Journal 387.
[38] See generally C Bellamy, n 3 above.
[39] D Kennedy, “Spring break” (1985) 63 Texas Law Review 1377; D Kennedy, “Autumn weekends: an essay on law and everyday life” in A Sarat and TR Kearns (eds), Law in Everyday Life (1993) 191. The impact of Kennedy’s work in that area is greater than would appear from a survey of written responses or references to those articles. While the questions about the self-constitution of international human rights lawyers raised by those two articles on human rights activism have generated much discussion and debate amongst international lawyers informally, little has been written in response to those articles. The few written responses that have appeared tend to treat those articles as examples of narcissism rather than critical self-reflexion. See, for example, DZ Cass, “Navigating the newstream: recent critical scholarship in international law” (1996) 65 Nordic Journal of International Law 341 at 368.
[40] D Kennedy, n 39 above, (1993) at 195.
[41] Ibid.
[42] Ibid.
[43] Ibid. at 203.
[44] Ibid. at 197.
[45] This argument is made in A Orford, “Locating the international: military and monetary interventions after the Cold War” (1997) 38 Harvard International Law Journal 443. See also P Alston, “The myopia of the handmaidens: international lawyers and globalization” (1997) 8 European Journal of International Law 435.
[46] For a reflection on the relationship of international lawyers and governments, see O Schachter, “The invisible college of international lawyers” (1977) 72 Northwestern University Law Review 217.
[47] See, for example, the comments by O Schachter, SM Schwebel, TM Franck and SK Chopra, “In memoriam: Judge Manfred Lachs (1914-1993)” (1993) 87 American Journal of International Law 414; SM Schwebel, “Hersch Lauterpacht: fragments for a portrait” (1997) 2 European Journal of International Law 305.
[48] For example, in writing about the need for international lawyers to support a collective security system that privileges the interests of powerful States, WM Reisman, “The constitutional crisis in the United Nations” (1993) 87 American Journal of International Law 83 at 97, can argue that “[s]ecurity in the final analysis, is not a verbal exercise but the exercise of power in defence of public order. Without power, security is a word. The design of a realistic international security system cannot ignore how power is actually distributed”.
[49] M Koskenniemi, n 32 above, at 489-490.
[50] TG Weiss, n 3 above, at 8.
[51] Ibid. at 8, 15.
[52] FR Tesón, n 2 above, (1996) at 342.
[53] Ibid.
[55] Ibid. at 357.
[56] A Cassese, “Ex iniuria ius oritur: are we moving towards international legitimation of forcible humanitarian countermeasures in the world community?” (1999) 10 European Journal of International Law 23 at 25.
[57] S Tharoor, “The changing face of peace-keeping and peace-enforcement” (1995) 19 Fordham International Law Journal 408 at 413.
[58] TG Weiss, n 3 above, at 8.
[59] D Kennedy, n 39 above, (1985).
[60] Ibid. at 1402-5.
[61] Ibid. at 1404-5.
[62] Ibid. at 1402-5.
[63] LH Martin, H Gutman and PH Hutton (eds), n 10 above.
[64] D Halperin, n 15 above, at 76.
[65] M Foucault, “Afterword: the subject and power” in HL Dreyfus and P Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics (2nd ed, 1983) 208 at 213. Foucault’s studies of governmentality and the relation between the State or social identity and the individual have a slightly different focus. Foucault there analyses the “political technology” of individuals, or the ways in which individuals are led to recognise themselves as a part of a social entity, such as a nation or a State. His focus is on the techniques or practices of government which give rise to particular subjects, forms of rationality and relations between the society and the individual. See M Foucault, “The political technology of individuals” in LH Martin, H Gutman and PH Hutton (eds), n 10 above, at 145, 146, 153.
[66] M Foucault, ibid. (1983) at 212.
[67] Ibid.
[68] D Halperin, n 15 above, at 95.
[69] Ibid. at 19.
[70] Leading proponents of “positivism”, such as HLA Hart, have been influential in shaping generations of students of law. For an exposition of Hart’s view of positivism, see the essays in HLA Hart, Essays in Jurisprudence and Philosophy, (1983). Despite its continued place in legal education, positivism has been the subject of sustained critique over decades by scholars associated with traditions such as Natural Law or Legal Realism, arguing that the distinction between law, morality and politics is not sustainable. For the suggestion that legal positivism is “on the decline as an intellectually respectable approach to law and adjudication”, see TD Campbell, “Democracy, human rights, and positive law” [1994] SydLawRw 16; (1994) 16 Sydney Law Review 195 at 196.
[71] An analysis of the political nature of the drawing of boundaries between the inside and outside of law is made well by M Davies, Asking the Law Question (1994).
[72] See, for example, S Bottomley, N Gunningham and S Parker, Law in Context (revised ed, 1994) at Foreword, iii. That book is based upon a first-year course taught at The Australian National University, which introduces the study of “law in its political, social and economic context”. For particularly insightful critiques of such approaches to law, see I Duncanson, “Legal education and the possibility of critique: an Australian perspective” (1993) 8 Canadian Journal of Law and Society 59 at 69-70; A Rhodes-Little, “Review essay: who do we think ‘we’ are?” (1997) 8 Australian Feminist Law Journal 149, at 149-50.
[73] See, for example, O Schachter, n 46 above, at 218, 220, 224. Schachter, like most international lawyers, accepts that international law is not free from politics, understood as the politics of States, especially in areas like peace and security. However, Schachter believes in the capacity of lawyers to be objective and independent: while even “independent scholars will often appear to be reaching their conclusions on the basis of their preferences for a particular outcome rather than by the objective application of accepted principles”, somehow the “impression of relativism can be counteracted” through “reasoned application of competing principles, including those expressing fundamental values, validated by evidence of practice and consensus in international society” (ibid. at 220). Schachter also maintains a distinction between law and “matters of a non-legal character — political, economic, technical and so on” (ibid. at 224).
[74] Surprisingly little is written about the role of international law in legitimising and enabling imperialism and recolonisation. For examples of analyses that do take that approach to international law, see J Thuo Gathii, “International law and eurocentricity: a review essay” (1998) 9 European Journal of International Law 184; A Anghie, “Francisco de Vitoria and the colonial origins of international law” (1996) 5 Social and Legal Studies 321; A Anghie, “‘The heart of my home’: colonialism, environmental damage, and the Nauru case” (1993) 34 Harvard International Law Journal 445; C Raghavan, Recolonization: GATT, the Uruguay Round and the Third World (1990).
[75] See further the discussion in A Orford, n 7 above.
[76] The idealistic image of international law matches to an extent the utopian approach to the utility of international law identified by M Koskenniemi. See M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989).
[77] MH Adler, “International law’s contribution to security in the post-Cold War era: from functional to political and beyond” (1996) 19 Fordham International Law Journal 1955.
[78] The self-constitution of international lawyers as something other than activists is explored in D Kennedy, n 39 above, (1993) at 197 (“[f]or the activists, I might be law to their politics … I constituted the group against my identity as a lawyer, a generalist, an internationalist, above all, someone who legitimately didn’t know much about what was to go on”).
[79] H Charlesworth, “Feminist critiques of international law and their critics” (1994-5) Third World Legal Studies 1.
[80] Ibid.
[81] M Thornton, “Discord in the legal academy: the case of the feminist scholar” (1994) 3 Australian Feminist Law Journal 53.
[82] Ibid. at 55 (defining “benchmark men” in anti-discrimination law as “Anglo-Celtic, heterosexual, able-bodied, middle class, and who tend to espouse middle-of-the-road political and religious beliefs”); N Naffine and RJ Owens (eds), Sexing the Subject of Law (1997). For arguments that the bounded, impermeable, unified, Western sovereign State is represented as the masculine subject of international law, while the sovereign body of less powerful States is represented as permeable and thus female, see A Orford, “The uses of sovereignty in the new imperial order” (1996) 6 Australian Feminist Law Journal 63, at 75-81.
[83] A Rhodes-Little, n 72 above.
[84] M Thornton, “Portia lost in the groves of academe wondering what to do about legal education” (1991) 9 Law in Context 12.
[85] I Duncanson, “Broadening the discipline of law” (1994) 19 Melbourne University Law Review 1075, at 1081.
[86] Ibid.
[87] Ibid.
[88] Ibid. Duncanson compares the process to “the Anglophone determination to shout at ‘foreigners’ in English instead of learning their language. It is an aggressive and authoritarian practice, serving to accomplish, through the silencing of the other, the hegemonic position of the speaker”.
[89] Ibid. at 1082.
[90] A Rhodes-Little, n 72 above, at 151.
[91] I Duncanson, n 85 above, at 1078. Duncanson notes that, while “much is made of the need to produce competent technicians … this may be a coded way of speaking of people with the correct attitude toward official explanations of the world. Non-academic lawyers often want both to scrutinise the content of academic law courses in the name of relevance to their own professional preoccupations and simultaneously to tell their new recruits to forget their university training because it is irrelevant”. See also I Duncanson, n 72 above, at 80 (arguing that the bureaucratic managerialism and anti-intellectualism dominating higher education policy in Australia results in “a publicly reiterated philosophy of education that disguises a mistrust of nonconformity as a concern for ‘relevance’”).
[92] I Duncanson, n 85 above, at 1081.
[93] A Rhodes-Little, n 72 above, at 151.
[94] D Kennedy, “Legal education and the reproduction of hierarchy” (1982) 32 Journal of Legal Education 591.
[95] I Duncanson, n 85 above; A Rhodes-Little, n 72 above.
[96] For an exploration of the tendency to romanticism in the teaching of international law, see G Simpson, “On the magic mountain: teaching public international law” (1999) 10 European Journal of International Law 70.
[97] D Kennedy, n 39 above, (1993).
[98] Ibid. at 230.
[99] Ibid. at 231.
[100] Ibid.
[101] Ibid. at 232.
[102] O Schachter, n 46 above.
[103] Ibid. at 224-5.
[104] Article 38(1), Statute of the International Court of Justice, 26 June 1945, (1978) Year Book of the United Nations 1052.
[105] Anthony Carty argues that Article 38, and what it represents, has influenced the lack of theoretical debate in international law in England. See A Carty, “Why theory? — the implications for international law teaching” in P Allott, A Carty, M Koskenniemi and C Warbrick, Theory and International Law: An Introduction (1991) 75.
[106] S Jeffords, n 21 above, at 535; L Boose, “Techno-muscularity and the ‘boy eternal’: from the quagmire to the Gulf” in A Kaplan and DE Pease (eds), n 21 above, at 581; PJ Williams, The Rooster’s Egg: On the Persistence of Prejudice (1995).
[107] On the relationship between imperialism and cultural practices, see generally EW Said, Culture and Imperialism (1993); T Morrison, Playing in the Dark: Whiteness and the Literary Imagination (1992); K Ross, Fast Cars, Clean Bodies: Decolonization and the Reordering of French Culture (1996); A McClintock, Imperial Leather: Race, Gender and Sexuality in the Colonial Contest (1995); A Kaplan and DE Pease (eds), n 21 above.
[108] EW Said, n 107 above, at 158.
[109] Ibid. at 348.
[110] EW Said, The Question of Palestine (1992) 75.
[111] EW Said, n 107 above, at 8.
[112] Ibid. at 10.
[113] Ibid.
[114] Ibid. at 158-9.
[115] T Morrison, n 107 above, at 38.
[116] Ibid. at 44.
[117] F Fanon, Black Skin, White Masks (1967), at 110.
[118] H Bhabha, The Location of Culture (1994), at 86.
[119] Ibid. 90.
[120] Ibid. at 85-92.
[121] PJ Williams, n 106 above, at 204-8.
[122] EW Said, n 107 above, at xix.
[123] FR Tesón, n 2 above, (1996) at 323, 342.
[124] T Threadgold, n 11 above.
[125] FR Tesón, n 2 above, (1996) at 342.
[126] TG Weiss, n 3 above, at 15.
[127] EL Santner, My Own Private Germany: Daniel Paul Schreber’s Secret History of Modernity (1996) at 8.
[128] Many people are sensitive to attempts to engage in recolonisation due to their “memory of past imperialisms”. As EW Said, n 107 above, at 348, argues, “[t]here are far too many politicized people on earth today for any nation readily to accept the finality of America’s historical mission to lead the world”.
[129] H Charlesworth, “Cries and whispers: responses to feminist scholarship in international law” (1996) 65 Nordic Journal of International Law 557.
[130] A D’Amato, “Book review: R Cook (ed), Human Rights of Women: National and International Perspectives” (1995) 89 American Journal of International Law 840.
[131] Ibid. at 840-1. According to D’Amato, it is “a fact of nature that women are on the average physically weaker than men. Moreover, they pay the physical price for perpetuating the human species; during their child-bearing and child-nurturing years they are especially weak and vulnerable”.
[132] Ibid. at 840. D’Amato appears not to recognise that “we” are animals.
[133] Ibid. For an excellent analysis of the way in which such stories about animals and nature are produced in order to legitimate certain social hierarchies or methods of ordering, see D Haraway, Primate Visions: Gender, Race and Nature in the World of Modern Science (1989).
[134] As H Charlesworth, n 129 above, at 563, argues, by drawing a distinction between “highly industrialized” and “patriarchal” States, D’Amato attempts “to quarantine more generally the problem of women’s oppression to a few hot countries”.
[135] A D’Amato, n 130 above, at 843.
[136] Ibid. at 843.
[137] Ibid.
[138] I Brownlie, “The rights of peoples in modern international law” in J Crawford (ed), The Rights of Peoples (1992) 1 at 14.
[139] Ibid. at 15.
[140] Ibid. at 14.
[141] Ibid. at 12.
[142] Ibid. at 15.
[143] H Charlesworth, n 129 above, at 563-6.
[144] C Weber, “Good girls, little girls, and bad girls: male paranoia in Robert Keohane’s critique of feminist international relations” (1994) 23 Millennium 337. Cynthia Weber has explored the similar emergence of male paranoia as a response to feminist critical analyses within the discipline of international relations. Weber argues that male scholars respond to the paranoia engendered by feminist engagement with international relations by attempting to control and contain that threat, reasserting disciplinary boundaries and seeking to discredit those aspects of feminist and critical theory that cannot be contained. Weber argues that Robert Keohane’s critique of feminist international relations produces two bodies: “the feminist body of literature which is the text’s object of analysis and Keohane’s authorial body which views, writes about, and disciplines its object of analysis from an empowered subject position”.
[145] Ibid. at 347-8.
[146] See the discussion of representations of that threatened disorder in A Orford, “The politics of collective security” (1996) 17 Michigan Journal of International Law 399.
[147] DE Pease, “Hiroshima, the Vietnam veterans war memorial, and the Gulf War: post-national spectacles” in A Kaplan and DE Pease (eds), n 21 above, 557 (discussing the constitution of United States identity during the Cold War).
[148] M Klare, Rogue States and Nuclear Outlaws: America’s Search for a New Foreign Policy (1994); TM Franck, “United Nations prospects for a new global order” (1989-90) 22 New York University Journal of International Law and Politics 601.
[149] JJ Mearsheimer, “Why we will soon miss the Cold War” in P Williams, DM Goldstein and JM Shafritz (eds), Classic Readings of International Relations (1994) 477; CW Maynes, “America without the Cold War” (1990) 78 Foreign Policy 3.
[150] M Klare, n 148 above, 4.
[151] D Campbell, Writing Security: United States Foreign Policy and the Politics of Identity (1992) 5.
[152] Ibid. at 5.
[153] Ibid. at 195.
[154] Ibid.
[155] EL Santner, n 127 above, at xiii.
[156] Ibid.
[157] See L Boose, n 106 above; S Jeffords, n 21 above.
[158] M Rogin, “‘Make my day!’: spectacle as amnesia in imperial politics [and] the sequel” in A Kaplan and DE Pease (eds), n 21 above, 499 at 508.
[159] Ibid.
[160] Ibid. at 525.
[161] Ibid. at 505.
[163] Ibid.
[164] M Rogin, n 158 above, at 509.
[165] Ibid. at 527.
[166] Ibid. at 505.
[167] I Duncanson, “‘Close your eyes and think of England’: stories about law and constitutional change in Australia” (1996) 3 Canberra Law Review 123 (arguing that stories about human rights and constitutional change make globalisation palatable in the way that stories about “civilising centralisation and constitutionalism” operated to legitimise changing economic relations during the early modern period in England). For examples of those advocating an abandonment of sovereignty to enable greater intervention, see FR Tesón, n 2 above, (1996); MR Hutchinson, n 3 above; TM Franck, “The emerging right to democratic governance” (1992) 86 American Journal of International Law 46.
[168] See further A Orford, n 45 above.
[169] KJ Guest, “Exploitation under erasure: economic, social and cultural rights engage economic globalisation” [1997] AdelLawRw 6; (1997) 19 Adelaide Law Review 73.
[170] See further A Orford, n 45 above.
[171] The notion of charity also creates a sense that those in States subjected to intervention should be grateful to their rescuers. On the tyranny of demands for gratitude in such circumstances, see T Morrison, “Introduction: Friday on the Potomac” in T Morrison (ed), Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality (1992) vii.
[172] G Chakravorty Spivak, “Culture alive” (1995) 5 Australian Feminist Law Journal 3 at 6. See also the discussion in G Chakravorty Spivak and D Plotke, “A dialogue on democracy” in D Trend (ed), Radical Democracy: Identity, Citizenship, and the State (1996) 209 at 214.
[173] C Cohn, “Sex and death in the rational world of defense intellectuals” (1987) 12 Signs 687 at 707.
[174] Ibid. At 687-8, Cohn defines “defense intellectuals” as “civilians who move in and out of government, working sometimes as administrative officials or consultants, sometimes at universities and think tanks. They formulate what they call ‘rational’ systems for dealing with the problems created by nuclear weapons”.
[175] Ibid. at 707.