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Orford, Anne --- "Custom, Power and the Power of Rules: International Relations and Customary International Law by Michael Byers; Positivism and the Power of International Law" [2000] MelbULawRw 19; (2000) 24(2) Melbourne University Law Review 502


Review Essay

Ositivism And The Power Of International Law

Custom, Power and the Power of Rules: International Relations and Customary International Law by Michael Byers

(Cambridge: Cambridge University Press, 1999) pages i–xxii, 1–250. Price A$34.95 (paperback). ISBN 0 521 63408 3.



INTRODUCTION

The break-up of the Soviet Union prefigured major transformations in international law and international relations. With the end of the Cold War, scholars in these disciplines began to make great claims about the potential for achieving a new world order. The end of the stand-off between two major powers, the Soviet Union and the United States of America, which supposedly represented opposing ideologies, was seen by some commentators to offer an opportunity for achieving a liberal alliance of democratic states committed to global free markets and the protection of individual rights.[1] For others, the post-Soviet era threatened abuses of power by international organisations and powerful states and a new freedom for those with the power to impose grandiose visions of a liberal, capitalist order in the absence of any effective opposition.[2]

The end of the Cold War has also led to a less celebrated rapprochement between the two disciplines of international relations and international law.[3] The Cold War fuelled a division between the two disciplines that had depended since the 1930s upon each discipline projecting a negative image of the other — international lawyers criticised realist international relations scholars as apologists for state power, while international relations scholars dismissed international law as hopelessly old-fashioned, dangerous and utopian.[4] In the changed conditions of the post-Cold War period, where liberalism has again been confidently heralded as the end of history,[5] international relations scholars can afford to embrace the normative, while international lawyers can afford to admit that law was the stuff of (liberal) politics all along.

The interdisciplinary project which Michael Byers seeks to develop in his ambitious book, Custom, Power and the Power of Rules: International Relations and Customary International Law,[6] can be located in this post-Cold War climate. The intellectual landscape that shapes Byers’ approach is the world of positivist international lawyers and the realists and regime theorists of Anglo-American international relations. He aims to engage international relations scholars in a conversation about the role of power in the process of creating and changing customary international law rules. Through that conversation, Byers seeks to reveal the way in which pre-existing rules of customary international law that govern the process of rule formation constrain the capacity of powerful states to shape the law in their own image.

There is much to commend in this book. I am very much in agreement with Byers’ argument that international lawyers need to enter into conversation with other academic disciplines. While his imagined audience in this book is international relations scholars, his concluding chapter reveals his dream of a broader conversation that includes scholars from the disciplines of history, economics, sociology, linguistics and theology.[7] In addition, his call for international lawyers to start thinking more carefully about the relationship between their discipline and the operation of power is timely. My criticism of this project, however, is that the positivist assumptions that ground Byers’ understanding of the goal of interdisciplinarity and the nature of power constrain the scope of his analysis. His stated commitment to the trinity of statism, positivism and realism[8] limits his vision of interdisciplinarity, his conception of power and his understanding of the relationship between power and international law.

II THE CHALLENGE OF CUSTOM

Byers seeks to explain the development and change of customary international law, while positing a set of principles that create a stable, autonomous legal framework. The challenge for Byers in attempting to persuade a realist international relations audience of the constraining effect of customary international law on power is one that would be familiar to those 19th-century international lawyers who attempted to articulate a positivist foundation for their discipline.[9] Positivist international lawyers have long been haunted by the ghost of the English legal philosopher John Austin, who argued that international law is not law ‘properly so called’.[10] The essence of the well-worn Austinian argument is that law is the command of a sovereign in the character of a political superior, backed up by force and habitually obeyed. Austin was quite specific in his assertion that international law was not law. Despite the fact that international law emanated from sovereign states, those sovereigns could not bind each other. International society lacked an overarching sovereign and, thus, ‘an imperative law set by a sovereign to a sovereign is not set by its author in the character of political superior.’[11] Nor could international lawyers rely on the claim that customary international law resembled forms of domestic law such as the common law, as Austin was equally definite that customary law did not constitute law. He argued that so-called customary law owed its origin to mere customs or ‘rules set by the opinions of the governed’, rather than the commands of a political superior.[12] For Austin, customs are only transformed into positive law once ‘they become the reasons of judicial decisions upon cases, and are clothed with legal sanctions by the sovereign’.[13]

Those 19th-century lawyers such as Thomas Lawrence and John Westlake, who sought to ground international law in positivism rather than natural law, saw themselves in conversation with Austin.[14] Their answer to his challenge shapes the discipline to this day. These international positivist theorists differed from their domestic counterparts in arguing that both sovereignty and society were central to creating a positivist foundation for international law. Sovereignty remains central to the positivist conception of international law, because law is still represented as emanating from the will of sovereign states who make up international society. However, in the absence of a single sovereign authority as a source of law, 19th-century positivists used the metaphor of an international society or community as a central element in their definition of law.[15] International law is the body of rules that can be derived from observation of the interaction of members of that international society — legal rules embody those claims which are held to be enforceable in that society, are commonly observed and are enforced by sanctions.

Tying together the two elements of sovereignty and international society is the notion of ‘consent’.[16] Positivists argue that states can clearly be said to consent to treaties on signature and ratification.[17] States also consent to be bound by customary international law through their participation in the process of formation of customary law. The idea of a society of states resolves the question of whether and how states consent to be bound by laws that existed before they came into existence or by the rules governing the whole process of creation of customary international law in general. States consent to be bound by the general system of formation of customary international law by participating in the society of states. This provided positivist international lawyers with what they could feel to be a satisfyingly rigorous and objective scientific method by which to determine whether customary international law had crystallised in a given area of international relations. For customary international law to arise, international lawyers had only to study the objective fact of the behaviour of states to determine whether that behaviour, when combined with the requisite opinio juris, gave rise to a new norm of customary international law.

However, for some members of the discipline, these answers were not adequate. Those who felt more comfortable with the image of an all-powerful sovereign of the kind imagined by Austin continued to be concerned about the ‘power’ of international legal rules. Byers describes the moment in the history of the discipline of international law when a number of these scholars broke away and formed the parallel discipline of international relations.[18] He suggests that the immediate spur for that schism was the inter-war challenge to the positivist international law project posed by the revival of a natural law approach. That approach envisaged international law as a tool for achieving peace and security through international organisations committed to free trade, collective security and disarmament. For the new ‘realist’ international relations scholars such as E H Carr[19] and Hans Morgenthau,[20] it did not seem at all clear that international law had the capacity to constrain abuses of power by powerful states or to create order out of the anarchic state of international relations.[21]

Custom, Power and the Power of Rules is an attempt to bridge this divide. Part one of the book (chapters one to three) sketches the interdisciplinary perspective that Byers aims to bring to bear on his study of customary international law. Chapter one provides Byers’ account of the relationship between law and power. Byers explains that his ‘working assumptions’ are drawn from a trinity of ‘isms’ — statism, positivism and realism.[22] His focus is statist in that he assumes that ‘[s]tates are the principal actors in the process of customary international law.’[23] This shapes his study of the interaction of power and customary international law, in that he is interested only in the question of how the process of customary international law ‘transforms external expressions of State interest into rules of customary international law.’[24]

Byers’ analysis is positivist in his assumption that international law is the product of the will of sovereign states. In his account, states do not generally become subject to international legal obligations without their consent, although in the case of customary international law this may take the form of ‘system consent’ (general consent to the process of customary international law) rather than of consent to specific rules.[25] Byers sketches an essentially positivist account of the relationship between ‘law’ and ‘non-law’.[26] In so doing, he paints a clear distinction between the two. The process of creating law involves ‘transforming applications of power into legal obligation, of turning “is” into “ought” or, within the context of customary international law, of transforming State practice into customary rules.’[27] The obligatory nature of legal rules distinguishes them from the ‘arbitrary commands of powerful States’.[28]

Despite his positivist sensibility, in a number of places in both this introductory chapter and the conclusion Byers seems almost ready to abandon the strictures of a positivist conception of law. For example, he comments that ‘the basis of obligation is located anterior, not only to individual rules of international law, but even to the processes that give rise to those rules.’[29] This statement seems to promise a more far-reaching analysis of the nature of the foundation of ‘law’ — a project for which the interdisciplinary commitment of this book would seem appropriate. Indeed, Byers notes that

the question of how applications of power can generate obligation cannot be answered by international lawyers operating strictly within the confines of their own discipline. Instead, this question would seem to require international lawyers to consider non-legal factors and non-legal relationships ... and to apply concepts and methods which, although familiar to other disciplines, are largely alien to their own.[30]

The need to explore the nature of the foundations of legal authority — how law gains its legitimacy or authority — is one which has concerned a range of critical legal scholars, and the inability of positivist theorists to provide a ‘legal’ foundation for law is perhaps the most persuasive criticism of that theoretical tradition.[31] Byers seems to accept that it is not possible to say finally whether the foundation of law is within or outside the legal system, quoting Brigitte Stern to the effect that the foundation of customary international law’s obligatory character ‘cannot be resolved on a strictly legal plane’.[32] Yet rather than open up his study of power, law and obligation to the ‘interdisciplinary’ questioning that such an insight might suggest, Byers finishes this section on the basis of obligation by returning to his positivist commitments: ‘Instead of exploring the basis of obligation in international law, this book assumes that States are only bound by those rules to which they have consented.’[33] Like the classical 19th-century positivist international lawyers, Byers resolves the question of the ‘legality’ of international law by arguing that it is the social character of inter-state relations that provides the basis of obligation in international law.[34]

Finally, Byers’ analysis is ‘realist’ in that he assumes ‘that States act in more-or-less self-interested ways and that the primary way in which they promote their self-interest is through applications of power.’[35] The kind of power with which realists are interested is the kind of centralised, top-down power which Michel Foucault describes as the juridical or ‘sovereign’ model of power.[36] Byers’ contribution to realist thinking is his thesis that the process of creation, maintenance or change of customary international law operates to maximise the long-term interest of most states ‘by creating rules which protect and promote their common interests.’[37] While powerful states will often find it easier than less powerful states to engage in practices that will affect the development, maintenance or change of customary international law rules, even powerful states are constrained in their capacity to influence the customary process by the existence of key principles of law which govern that process.

Part two (chapters four to seven) explores how four key ‘principles’ of international law — jurisdiction, personality, reciprocity and legitimate expectation — constrain the power of states to develop or change rules of customary international law. Byers argues that the existence of these four key principles shapes how states can participate in the customary process of transforming power into legal obligation in the form of customary rules. By constraining powerful states in their attempts to develop, maintain or change other customary international law rules, these principles promote the stability of the international legal system.[38] In this part Byers attempts to demonstrate that

the influence of powerful States on customary law-making is not always decisive, that the ‘power of rules’ sometimes affects how even the most powerful of States behave, and what they are able to accomplish, when they seek to develop, maintain or change rules of customary international law.[39]

While Byers’ analysis in these chapters is a creative attempt to expand the way in which international lawyers think about the relationship between power and customary international law, it nonetheless illustrates some of the broader limitations imposed by his acceptance of a conception of power informed by positivist, statist and realist assumptions.[40] For example, chapter four is concerned with jurisdiction as a principle limiting the operation of power in the customary process. Byers defines jurisdiction as ‘the authority to engage in activities of control or regulation within a certain geographic area.’[41] Thus, for Byers, jurisdiction is always closely linked to control over territory.[42] A state has more power over those areas within its territory because of the capacity of the state to dominate those areas using military or similar forms of power.[43] Byers argues that a state’s capacity to exert power, particularly that derived from military capability, is dependent upon ‘geographic proximity’:[44]

A State is most powerful within the confines of its own borders. Although States are able to project power outside their borders, the strength of that projected power will normally wane further away from the State, and will generally be weakest within the territories of other States. These differing degrees of power are the result of control over territory, itself directly dependent on power, but that control over territory is legitimised and given effect in the international legal system by the principle of jurisdiction.[45]

Byers argues that the principle of jurisdiction provides an advantage to those states that have control over territory in the shaping of new customary international law rules concerning activities which occur within that territory. For example, where the customary rules in question are ‘internal rules’, which Byers defines as ‘those rules which one State seeks to apply to another State within the first State’s jurisdiction’, the state with jurisdiction has a power advantage even over more powerful states when those other states lack jurisdiction.[46] As a result, the principle of jurisdiction alters power relations between states, qualifying the application of power within the customary process by rendering powerful states relatively weak.[47]

Some of the broader problems raised by the way in which Byers thinks about power are illustrated by his use of foreign direct investment law as an example of the effects of the principle of jurisdiction.[48] Byers considers the case of the customary rule concerning the standard of compensation required where foreign-owned assets have been expropriated. He argues that ‘non-industrialised States’ were able to shape the development of this rule away from that of ‘prompt, adequate and effective compensation’,[49] and that this was a result of the fact that many such acts occurred within their territory and thus their jurisdiction.[50] Those ‘Western industrialised States’ which were the traditional source of such investment were not able to recover the expropriated property directly, short of military intervention, and thus were constrained in terms of their capacity to influence the standards that were to apply in such cases. The post-Cold War era has seen a weakening of the position of non-industrialised states due to the demise of the supportive Soviet Union, and a resulting proliferation of bilateral investment treaties embodying higher levels of compensation than those available under customary international law. Byers suggests that such treaties may operate as state practice to return the customary standard to that of prompt, adequate and effective compensation. He concludes that this is a result of the operation of the principle of jurisdiction, as those treaties ‘transfer a significant proportion of the State practice relevant to this rule outside the territories of the non-industrialised States.’[51] Those treaties are negotiated outside the territory of the state where the investment is to be made, and are concluded prior to the investment being made and property acquired. This, for Byers, means that the site relevant to the question of jurisdiction has moved. Similarly, he suggests that ‘international arbitral decisions concerning the standard of compensation for expropriation appear to have shifted the locus of adjudication of this issue out of the jurisdiction of non-industrialised States and into the international arena.’[52]

For Byers, jurisdiction here comes to mean the site of negotiation or adjudication about the relations to be entered into, rather than the geographical site of the activity being regulated. This argument seems to unsettle Byers’ earlier insistence on the relationship between power and geography. Indeed, Byers implicitly recognises this in his later discussion of the link between diplomatic protection and the principle of personality.[53] Byers there notes that states have obligations to other states concerning the treatment of their nationals, through the application of the concept of diplomatic protection. These obligations can extend to the treatment of corporations incorporated in one state and investing in another. Byers argues that the principles of diplomatic protection play a part in the development of norms relating to the appropriate standard of compensation for expropriation. As most investing corporations were incorporated in industrialised states, which could make claims based on diplomatic protection, those states were able to exercise greater weight in the development of norms relating to the standard of compensation. Thus, the operation of the principle of personality effectively functioned to extend the territory of the state.[54] This ‘at least partly counteracted the qualifying effect of the principle of jurisdiction, and did so in favour of the industrialised States.’[55]

Gradually, then, jurisdiction becomes abstracted in Byers’ formulation, so that in the end it is no longer linked to geography or control over particular areas of land. Jurisdiction comes to mean that which a particular state controls. Powerful states are constrained in their ability to develop rules of customary international law relating to a specific issue unless they are able somehow to define that issue as within their legitimate sphere of control, in ways that are less and less dependent upon geographic links. This is a conclusion which makes sense, but only if one adopts a more subtle conception of power.[56] In particular, his argument would be strengthened by a consideration of the extent to which the exercise of power has been decoupled from control over territory.[57]

Chapter five covers the principle of personality. By this, Byers means both the capacity to hold rights and be subject to obligations within the international legal system, and the entitlement to participate fully in the processes of law creation. Byers suggests that personality has a qualifying effect on the application of power in the process of customary law formation by particular states.[58] For example, all states, no matter how powerful, have full legal personality and are equally entitled to participate in the process of creation of customary international law. In the development of customary law relating to the right of self-determination, Byers sees an example of a situation where a large number of less powerful states were able to expand the scope of a rule despite the fact that a smaller number of more powerful states were opposed to that change. A second way in which Byers sees the principle of personality as a constraint on the operation of power is through the imposition of limits on participation in the customary process.[59] For example, the principle of personality excludes powerful entities, such as corporations, from direct participation in the process of customary law formation.

Again, this section would benefit from a more nuanced account of power. In particular, a consideration of the colonial history of international law would seem to be of interest to a study of the relationship between power and the principle of personality. The anxieties about who should count as international legal subjects generated by the 19th-century colonial enterprise were central to the ways in which questions about legal personality were posed and answered.[60] The doctrinal attempt to define the ‘proper subjects of international law’ was fuelled by the political imperative of European lawyers seeking to find a way to distinguish ‘sovereigns proper from other entities that also seemed to possess the attributes of sovereignty, such as pirates, non-European states, and nomads.’[61] The natural law of earlier jurists, such as the Spanish theologian Francisco de Vitoria, did not prove useful, as natural law thinking was premised on the notion that all societies, whether European or ‘barbarian’, were bound by a universal law expressed in Christian doctrine and the Roman law of nations.[62] The answer for positivists such as Lawrence was to create a distinction based on cultural differences between sovereigns and others.[63] Sovereignty and, by implication, legal personality were based on control of territory, understood as involving the enforcement of the form of property rights recognised in European legal systems. Historically, the refusal to recognise non-European peoples as ‘sovereign’ greatly constrained their capacity to shape the development of rules of international law. This brings into question the capacity of international law to achieve justice today. The ongoing struggle by indigenous peoples to be recognised as peoples entitled to self-determination and as subjects of international law is one of the contemporary manifestations of this history. On the other hand, the exclusion of corporations from direct participation in the development of customary international law appears to do little to limit their power in shaping the development of international law in ways that protect their interests. For example, attempts within the United Nations to develop a code of conduct for transnational corporations have foundered,[64] along with much of the agenda of the New International Economic Order (‘NIEO’).[65] Even if, as Byers argues, corporations are not able to shape the development of customary international law, they are major actors in the development of new treaty regimes. For example, states increasingly act as agents of multinational corporations in their negotiation of multilateral trade and investment treaties and their use of dispute settlement mechanisms at the World Trade Organisation (‘WTO’). Thus, it is far from clear that the principle of personality acts as a meaningful constraint on the exercise of power broadly conceived.

Part three of the book (chapters eight to eleven) is concerned with linking some of the major theoretical problems in the positivist conception of customary international law to an analysis of power based on realist international relations scholarship. In chapter eight Byers describes what he sees as the four fundamental problems of customary international law.[66] The first, the ‘chronological paradox’,[67] concerns the requirement that for a rule of customary international law to exist, lawyers must be able to point to a consistent and general practice among states, together with the ‘psychological’ element of opinio juris — the consideration by the states concerned that they are acting in conformity with a legal obligation.[68] The ‘chronological paradox’ that arises where a new rule of customary international law is created is that states must believe that the rule already exists and that their practice is already in accordance with law in order for the rule to develop. The second fundamental problem, that of state practice, concerns the debate about what forms of behaviour constitute state practice and whether that behaviour includes all or only some forms of state practice, such as acts, statements, treaty ratifications and votes for or against the resolutions and declarations of international organisations.[69] The third, the ‘epistemological circle’,[70] concerns the nature of the evidence that can be used to establish the element of opinio juris if statements are taken to constitute state practice. The fourth, the problem of ‘inferred consent’,[71] relates to the general positivist assumption that rules of international law do not bind states against their will. While the issue of ‘consent’ is fairly straightforward in the case of treaties, states rarely explicitly consent to rules of customary international law. Lawyers tend to rely on the notion of acquiescence or ‘inferred consent’ to explain why states are subject to customary law obligations.[72] This notion is difficult to explain within a positivist framework based on the will of states, as it seems to presume that states are bound by a new rule of customary international law unless they behave in ways that indicate their intention not to be bound. The approach which Byers seems to favour is that states give a form of ‘system consent’,[73] accepting rules about the development and change of customary international law, including the rule that acquiescence can be interpreted as acceptance of a customary international law.

In chapter nine Byers uses a theoretical framework based on international relations regime theory and institutionalism to read the process of customary international law as a means of determining the common interests of states, and protecting and promoting those interests through legal rules.[74] Byers suggests that this reading helps to resolve problems such as those described in chapter eight. Customary law can be understood as a process that is based upon a ‘“collective knowledge” or set of shared understandings ... which enable States to distinguish between legally relevant and legally irrelevant State practice.’[75] Byers argues that an interdisciplinary approach allows us to understand opinio juris as referring to these shared understandings of legal relevance. This reinterpretation of opinio juris then reveals that customary international law is inherently stable, involving as it does an ‘inherently social aspect’ which makes shared understandings ‘largely immune to short-term manipulation by individual States, or groups of States.’[76] Law can still be seen as derived from the consent or will of states to the extent that such understandings are part of the ‘shared “conceptual universe”’[77] of all states, present and future. This argument promises to open law up to discussions about the ways in which these shared understandings are imagined and constituted, although this is not a direction in which Byers takes his argument.

Some of the problems inherent in this framework for a positivist theory of law can be seen from Byers’ discussion of the notion of ‘conspicuous common interests’.[78] One shared understanding that Byers points to is that state practice concerning a potentially legal issue provides an indication of the extent to which states support, oppose or are ambivalent towards a particular legal outcome.[79] According to Byers, an interdisciplinary approach allows this weighing of state practice to ‘be seen as a facilitative, and not as a compulsory, exercise’, directed towards determining the common interests of states.[80] Where that common interest has a ‘conspicuous character’, a lower behavioural threshold may be required in order to create a rule supporting those interests. Those rules relating to fundamental human rights or prohibiting genocide or aggression express such conspicuous common interests and, thus, require less supporting practice to develop and continue. Martti Koskenniemi suggests that such rules are determined by an ‘anterior — though in some respects largely shared — criterion of what is right and good for human life.’[81] Byers’ recognition that such interests shape the customary international law regime unsettles his positivist conception of the place of the will of states in the development of international law. The way in which the criteria governing what is right and good for human life are determined is important to study, and becomes part of law through being its foundation. Byers avoids such a discussion, arguing instead that the existence of these conspicuous common interests ‘is an objective, and not a subjective, phenomenon.’[82]

Chapter ten, entitled ‘Related Issues’, is a general consideration of the relationship between customary international law and treaties, the concept of persistent objection, the nature of jus cogens norms and the relationship between jus cogens and erga omnes rules. While it involves an interesting description of the doctrinal rules governing these areas and relationships and an attempt to resolve all technical questions to which they give rise, Byers makes few attempts to link this chapter to the overall argument of his book.

In a somewhat puzzling concluding chapter, Byers appears to distance himself from the assumptions of statism, realism and positivism upon which he has based his analysis, despite the fact that this trinity shapes the universe he imagines in these pages. His disconcerting conclusion imagines a future which seems to me to be the past. For example, Byers suggests that ‘[a]lthough this book has adopted a statist assumption for the purposes of its analysis, the dynamic character of international society may eventually render this assumption inappropriate even for methodological purposes.’[83] Many scholars would argue that this has been the case for some time.[84] Similarly, Byers describes a future in which it may be necessary to think about power in different ways:

[W]ere international society to change, the term power could easily be applied in an expanded manner to include all non-legal forms of power ... Although the sources of power which are of greatest importance to the customary process today involve the economic and military abilities of States, and legal obligation in the form of rules and principles of international law, the relative importance of different sources of power could also easily change. Indeed, they will have to change, should the State-centric character of international law be redefined.[85]

Yet, critical theorists have been arguing for decades that it is necessary to study power using new methodologies and that the relative importance of different sources of power had changed by the 19th century.[86] By making his statist, positivist and realist assumptions the starting point of his analysis, Byers can forever defer the arrival of this future of methodological change.[87] In the remainder of this review, I want to sketch some of the ways in which a broader conception of interdisciplinarity can open international law up to a different set of questions about power and responsibility.

III THE POSITIVIST VISION OF INTERDISCIPLINARITY

In his concluding chapter Byers returns to the theme of what the ‘interdisciplinary enterprise’ can offer international law. He suggests that international lawyers need to develop a ‘“sociological imagination” if we are to understand fully the complex processes which have given rise to, and continue to change, the social world in which we live.’[88] While Byers here seems to suggest that he is committed to using interdisciplinary methods to broaden his understanding of the world, his book, in fact, does not attempt to call into question any of the central tenets of positivist, realist or statist orthodoxy. Rather, interdisciplinary work seems useful to Byers only to the extent that it can help provide answers to the questions that these theoretical traditions throw up. In this sense, Byers is following in the footsteps of 19th-century legal positivists. In order to answer Austin’s criticisms and to ground their discipline in rigorous scientific principles, positivist international lawyers of the 19th century sought to develop a sociological approach to studying the members of the international society, their behaviour and their relations with other members of that society.[89] Byers, too, is concerned to engage in interdisciplinary conversations with international relations scholars to the extent that this supports the positivist project of developing a sociological account of international society and customs:

Such a social process, in this case the social dynamic of customary international law, is difficult, if not impossible, to explain on a traditional, positivist basis. It requires the adoption and application of social science-type conceptions ... Only by stepping back from the study of ‘law as norm’ can one begin to account for the full complexity of the interaction of power and obligation in the process of customary international law.[90]

The nature of Byers’ interdisciplinary commitment is carefully confined. His interdisciplinary work is very much limited to the traditional positivist goal of developing objective data relating to the behaviour of states. He makes clear that interdisciplinary material is only of use once the key working assumptions and questions of the project are in place. Byers comments that his statist, positivist and realist assumptions are

analytical aids which may later need to be discarded or modified in order to accommodate further complexities or changes in international society, or in our understandings of it — but only once the essential aspects of the relationship between power and obligation in the customary process are understood.[91]

This is the reason for the ‘book’s effort to keep its initial examination of the relationship between power and obligation within the confines of traditional conceptions of international relations and international law.’[92] However, Byers’ ‘understandings’ of international society or his perception of what are the ‘essential aspects of the relationship between power and obligation’ do not exist outside his ‘working assumptions’ — they are necessarily produced by those assumptions. Thus, despite Byers’ concluding claim that his book has departed from earlier work on power and law ‘by breaking out of the positivist mould and seeking to explain the customary process as a complex interaction of power and obligation’,[93] his approach to these questions can be seen as very much within the positivist tradition.

The end to which Byers’ desire for interdisciplinarity is directed limits those with whom he seeks to be in conversation. This leads to a narrow conception of the field of international relations. For example, by failing to acknowledge that the discipline of international relations includes scholars who are informed by, amongst other influences, literary theory, postcolonial theory, cultural studies and feminist theory, Byers misses the opportunity to develop a far more nuanced account of the way in which power interacts with international law. While he bemoans international lawyers’ ‘lack of knowledge about the methodologies and conceptual tools used by the discipline of international relations’,[94] his work could equally be criticised for the lack of knowledge of the methodologies and tools of those outside the regime theorists and institutionalists he favours.

Similarly, Byers engages only in a limited fashion with those international lawyers whose work might be characterised as interdisciplinary in character. While Byers notes that a range of critical and feminist legal scholars have begun to question the relationship between power, the state and international relations, he suggests that this work is of no relevance to his study of the relationship between power and the customary process as these theorists do not address the process of formation of customary international law. He comments that

Critical Legal Studies scholars, feminist scholars and writers from the non-industrialised world have, for the most part, only exposed the importance of power; they have yet to explain how power operates within the international legal system to affect the creation of law.[95]

This does not seem to explain why Byers’ own attempt to develop such an explanation is not informed by the broader ideas about the relationship between power and law developed in this body of work. This failure to engage with a broad range of international relations scholars and international legal theorists limits the ways in which Byers understands the relationship between power and internationalism.

A similarly constrained view of the ends of interdisciplinarity is evident in other international legal writing that self-consciously presents itself as being in conversation with international relations scholarship. For example, Kenneth Abbott’s contribution to an American Journal of International Law symposium on legal method divides the discipline of international relations into realist theory, institutionalist scholarship, liberal international relations theory and constructivist theory.[96] For Abbott, these approaches are useful to lawyers in performing three intellectual tasks: ‘description, explanation and institutional design.’[97] Abbott thus sees the goal of interdisciplinary exchange and, indeed, of international law more generally, as purely instrumental: ‘[B]y situating legal rules and institutions in their political context, IR [international relations] helps to reduce the abstraction and self-contained character of doctrinal analysis and to channel normative idealism in effective directions.’[98] This approach assumes that international relations theory will provide international law with context, giving lawyers a better view of the realities of politics within which they operate. Yet, as Martti Koskenniemi comments:

When Kenneth Abbott in his contribution speaks about acts of massive injustice and responses to them in terms of ‘atrocities regimes’, not only language but also the world undergoes a slight transformation. ... [L]anguages create worlds and do not ‘reflect’ them.[99]

This approach to interdisciplinarity can be contrasted with the view that such work is of value because of its potential to unsettle existing disciplinary assumptions. The purpose of interdisciplinarity need not be to seek to merge areas of knowledge (such as international law and international relations) for the purpose of strengthening a discipline’s claim to truth or expertise. Rather, an interdisciplinary approach might enable scholars in each discipline to recognise the partial nature of their discipline and its dependence on other areas of knowledge.[100] David Kennedy suggests that, at its best, this is what interdisciplinary work may promise, the disruptive edge of each discipline ‘vibrating excitedly with the other’.[101] Interdisciplinary work understood in this way would offer international lawyers and international relations scholars the chance to increase our self-reflexivity and to confront the ways in which we have been disciplined by our intellectual training and how we attempt to discipline others, in particular, our colleagues and students. This requires a willingness to engage with those who have been disciplined in ways that make their concerns uncomfortable or unfamiliar to us, rather than simply entering into interdisciplinary conversations with those whose concerns mirror or reinforce our own.[102]

IV THE POWER OF INTERNATIONAL LAW: FROM SOVEREIGN TO SUBJECT

One challenge that a broader interdisciplinary conversation might pose is to push international lawyers to think more extensively about the relationship between power, the state, sovereignty and international law. The model of interdisciplinarity adopted by Byers illustrates what I see as a broader barrier to rethinking this relationship. Traditional international lawyers and international relations scholars focus on a world of state and international organisations and systems. The use of cultural, feminist, poststructuralist or postcolonial theory to think about power relations remains controversial, both for international lawyers and within the social sciences more generally. Yet these theoretical approaches are needed to engage with an international relations that is now increasingly conducted or situated ‘in the domain of communication, signs and culture.’[103] Much of the scholarship that I find most useful in thinking about the relationship between power, law and international relations does the hard work of subjecting the products and processes of militarism,[104] imperialism,[105] globalisation[106] and monetarism[107] to feminist and critical readings. Those who criticise or ignore this body of cultural and critical theory reproduce a division and privileging of labour, where the real work of dealing with power and its effects involves an exclusive focus on a ‘public’ sphere of states, corporations and capitalists, while the soft option of dealing with fantasy, desire, pleasure and identity is done in a ghetto of devalued scholarship.[108]

For example, Byers is concerned to address the question of whether and how power is constrained by the operation of customary international law rules. Byers describes his project as an examination of ‘the relationship between international law and power, in its most general sense’.[109] In his concluding chapter Byers explains that ‘“power” has been dealt with here as the ability of a State or States to control or influence directly how other States behave.’[110] This is extended to include not only ‘non-legal power’ such as wealth and military might, but also the ‘power of rules’.[111] He thus distinguishes his analysis from that of the New Haven school of international law and realist international relations scholars, which he sees as concerned with power but not law, and from most international lawyers, whom he sees as concerned with law but not power.

Yet, despite claiming to think about power in its most general sense, Byers’ ‘working assumptions’ limit his capacity to think broadly both about the nature of power and about the relationship between power and international law. For example, his ‘statist’ orientation makes it difficult for him to address the role that actors other than states play in the development of customary international law. Similarly, he does not consider whether the activities of non-state actors, such as transnational corporations, render customary international law either less relevant as a means of constraining the operation of power or less important as a part of international regulation in the 21st century. Byers thus misses the opportunity to engage with a range of recent analyses relevant to the relationship of power and international law, including the argument by Anne-Marie Slaughter that theorists need to ‘disaggregate’ the state in order to understand the operation of law in the ‘real new world order’;[112] the view of Philip Alston that a focus on the traditional doctrinal concerns of international law blinds international lawyers to the ways in which economic globalisation has radically reshaped the ground upon which the discipline is operating;[113] or the insight of Antony Anghie that the way in which positivist international lawyers write about and imagine state sovereignty is itself a product of colonial power relations.[114] This limitation may be partly caused by Byers’ decision to limit his disciplinary conversation to the structural realists and regime theorists of international relations. Cynthia Enloe argues that ‘mainstream’ international relations scholars have an unnecessarily limited notion of the role of power in the world of states.[115] She comments on how far many authors of analyses of international politics ‘are willing to go in underestimating the amounts and varieties of power it takes to form and sustain any given set of relationships between states.’[116]

Byers’ narrow understanding of the relationship between power, the state, sovereignty and subjectivity can be contrasted with the far more interesting debates about this relationship that have been going on in international relations scholarship for some time. While traditional international relations theorists may continue to assume that the relationship between sovereignty and subjectivity can only be resolved within the state, critical theorists like Richard Ashley,[117] David Campbell,[118] R B J Walker[119] and Cynthia Weber[120] have been concerned to explore the way in which representations of sovereignty function as a means of disciplining or ordering populations. Internationalists narrate the story of the rise of the state in Western Europe as a triumph of reason and order over tribalism and religion.[121] The moment of secularisation in these narratives is usually figured by the Peace of Westphalia in 1648.[122] Westphalia marks a clean break between the social formations of Christendom and subsequent sovereign communities. Despite that dominant internationalist narrative of progress from superstition to secular rationalism, ‘the state project of security replicates the church project of salvation.’[123] The sovereign state, like the church it replaced, has relied upon a discourse of danger to induce subjects to accept sovereign control. David Campbell argues that danger can be understood as ‘the new god for the modern world of states ... because it replicates the logic of Christendom’s evangelism of fear.’[124] In the words of R B J Walker, ‘claims about the sovereignty of states ... replace the angels as a marker of the margins of human existence.’[125] The promise that security and salvation can operate to secure identity amongst disorder serves to discipline human beings and, thus, to effect political order.[126] In particular, the process of securing an ordered self and an ordered world, both for the church and for the sovereign state, involves defining elements that stand in the way of order as forms of danger or ‘otherness’.[127]

This way of thinking about the practice of representing sovereignty, security, identity and danger suggests that the work of international relations and international legal scholars in describing and explaining the world is itself an exercise of power, rather than a mere observation of the way in which powerful actors such as ‘sovereign states’ behave.[128] Byers, however, does not ask how sovereignty and subjectivity are intertwined. Nalini Persram’s criticism of the broad failure in realist and social constructivist international relations literature to engage with these issues could equally be addressed to Byers’ analysis:

There is no fundamental questioning of how power operates through subjectivity, nor of the means by which the semblance of sovereignty is made persuasive. Instead, there is an assumption about power, and with that assumption, power risks assuming another form and another direction.[129]

A second methodological limitation of the positivist focus is the acceptance of a hierarchical top-down model of power. The model of power developed in the work of positivist legal theorists like Austin and H L A Hart assumes that power is centralised, operates in a top-down fashion and is essentially repressive rather than productive.[130] Positivist international legal scholarship in turn assumes that power is a commodity that can be held by particular entities or individuals, whether those entities be superpowers exercising power over the new world order, sovereign states exercising power over their peoples, international organisations at times managing to exercise such power over failed or disordered states during successful interventions, or the disciplining power of the market over states that have failed to organise their economic fundamentals. International law is primarily understood as either service to, or an attempted constraint on, such powerful entities.[131] The principal disciplinary question relating to power is how to orient international law to power, or how best to deal with the realities of the operation of power in the international sphere. As a result, international lawyers focus most of their attention on analysing the ways in which international law can assist in constraining, disabling or negotiating with those who are imagined as holding power, such as economic or military state superpowers or those groups with control over weapons and military force.

International lawyers do not on the whole question that this is the way in which power operates, even if international law itself does not have access to that kind of power. International lawyers, it should be stressed, do not usually conceive of international law as embodying or enacting such sovereign power. Indeed, the question, ‘Is international law really law?’, a question that haunts international legal theory, is a manifestation of the sense that international law lacks this sovereign force.[132] Yet while international lawyers recognise that international law does not emanate from a single, sovereign authority, they do not question that such power vests somewhere, usually in those sovereign states who, as a society, are the source of international law. The question as to whether international law is really law is never meant as a question about the utility of the model of law and the sovereign as a means of understanding the uses of power, but rather as a question about whether international law conforms to an otherwise self-evidently realistic model of power.

The work of feminist scholars, postcolonial scholars and queer theorists provides a way of thinking about the relationship between sovereignty and the operation of power in modern societies that differs from that developed by positivists. The model of power that emerges from these areas departs from a conception of power as a commodity or thing held by particularly powerful entities like states. Scholars in those fields have been arguing for decades that apparently organisational and public issues, such as militarism, imperialism, law and monetarism, are deeply personal, while the personal issues of subjectivity and experience are deeply political.[133] These analyses offer insights into the nature of the forms of power that operate in liberal democracies. One theorist who has contributed a great deal to the articulation of this shift in understanding of the operation of power is Michel Foucault. In his influential text, The History of Sexuality: An Introduction, Foucault challenges assumptions about the operation of power in liberal states.[134] In that introductory volume Foucault argues that power operates in liberal states in ways that differ from what he terms as the juridical model of power that is accepted in much political and legal theory. Foucault suggests that, under liberalism, coercive juridical or sovereign power is no longer the dominant form of power. It has been replaced as the central mode of exercise of power by what he has termed ‘disciplinary power’, a new mechanism of power that emerged in the 17th and 18th centuries.[135] Unlike the model of power that we see at work in positivist legal theory, Foucault suggests that disciplinary power is productive in that it constitutes subjects through ‘a multiplicity of organisms, forces, energies, materials, desires, thoughts etc.’[136] Disciplinary power ‘is more dependent upon bodies and what they do than upon the Earth and its products.’[137]

This has implications for how power is studied. One aspect of the methodological shift proposed by Foucault is his suggestion that we move from looking to sovereign entities or beings we imagine as holding power, to thinking about the role of disciplinary power in constituting subjects. An analysis of power ‘must not assume that the sovereignty of the state, the form of the law, or the over-all unity of a domination are given at the outset; rather, these are only the terminal forms power takes.’[138] Power does not operate from the top-down, as something seized by an all powerful sovereign and then used to oppress those with less power. Rather, power is employed and exercised in relations between people, rather than existing as a commodity that can be monopolised by a single entity. Thus, Foucault’s methodology involves a shift from studying the sovereign to studying the process of subjectification:

Let us not, therefore, ask why certain people want to dominate, what they seek, what is their overall strategy. Let us ask, instead, how things work at the level of on-going subjugation, at the level of those continuous and uninterrupted processes which subject our bodies, govern our gestures, dictate our behaviours etc. In other words, rather than ask ourselves how the sovereign appears to us in his lofty isolation, we should try to discover how it is that subjects are gradually, progressively, really and materially constituted. ... We should try to grasp subjection in its material instance as a constitution of subjects.[139]

It is important to stress that this argument does not imply that international lawyers and international relations scholars should forget the state in their theoretical work. Instead, the argument understands the meaning of state power differently. While sovereignty and the state must continue to be a focus of analysis for those who work in these disciplines, ‘the power effects of the state must be radically retheorized’.[140] A reconceptualisation of power along the lines proposed by Foucault suggests that while sovereign states, international organisations, superpowers, the global market and at times international law are certainly effects of power, they are not the sources of power. The sense that these entities are omnipotent is itself an effect of power relations.[141] It is not that more coercive top-down models of power are useless in understanding international legal phenomena such as wars, violent military interventions, economic restructuring and the violence imposed in these ways. On the contrary, classical models of power and coercion are useful in understanding these phenomena. The exclusive adoption of that model of power, however, limits the capacity to explore other effects of the operation of power. For example, Foucault’s model of power is useful in attempting to understand the ‘private life of war’, colonialism or capitalism within industrialised liberal democratic states.[142] By abandoning sovereign power as the central premise of analysis, it becomes possible to analyse the ways in which local effects of power and local tactics combine to make what we are used to calling politics possible. In order to analyse the operation of power in any given situation, we can look to its local effects, rather than looking for, and reproducing in our analyses, some powerful sovereign figure from whom such power is supposedly emanating.

Given his argument that disciplinary power has emerged as the central mode of the exercise of power, Foucault suggests that we might have expected the theory of sovereign power to have disappeared or at least have been displaced. Yet, as he points out, the sovereign model of power is still fundamental to the way in which the operation of power is understood. As I have argued, this model of power is still central to international legal theory in particular. Foucault then asks why this theory of sovereignty has persisted.[143] His answer is twofold. First, attacks on sovereign power operate as a means of critiquing any existing obstacles to the rise of disciplinary power. Second, the legal system based upon sovereign power is ‘superimposed upon the mechanisms of discipline in such a way as to conceal its actual procedures’.[144] The effect of focusing only on the juridical or sovereign form of power is to mask the operation of power in its disciplinary form and, thus, to make that form of power all the more effective. Sovereign power and disciplinary power may thus coexist in ways that are very productive.

Gayatri Spivak has argued that Foucault’s ‘monist and unified access’ to this new conception of power is itself ‘made possible by a certain stage in exploitation’.[145] For Spivak, the new disciplinary mechanism of power in operation in 17th- and 18th-century Europe ‘is secured by means of territorial imperialism — the Earth and its products — “elsewhere”.’[146] Her argument is an important one for any attempt to use Foucault’s reconceptualisation of power to think about international law. While disciplinary power may well provide a model for exploring the power effects of international legal discourse in states like Australia, the model of sovereign power and the focus on exploitation may better provide a means for considering the power effects of international law as it operates in Africa, Asia, Latin America and Eastern Europe.

Let me give two examples of the relationship between disciplinary power, sovereign power and international law. The first example is the way in which legal texts about actions of the UN Security Council or the North Atlantic Treaty Organisation (‘NATO’) legitimise the use of force. These texts have an effect as cultural products. The new respectability of military intervention, like 19th-century imperialism and colonialism, is enabled through faith in the idea that ‘certain territories and peoples require and beseech domination’.[147] Whether through arguments about the need to control state aggression and increasing disorder, or through appeals to the need to protect human rights, democracy and humanitarianism, international lawyers paint a picture of a world in which increased intervention by international organisations is desirable and in the interest of those in the states targeted for intervention. The stories that explain and justify the new interventionism have increasingly become part of everyday language through media reports and political sound bites. As a result, these strategic accounts of a world of sovereign states and of authorised uses of high-tech violence become more and more a part of ‘the stories that we are all inside, that we live daily.’[148] Legal texts about intervention create a powerful sense of self for those who identify with the hero of that story, be that the international community, the UN Security Council, the UN, NATO or the US.[149] Law’s intervention narratives thus operate not only, or even principally, in the field of state systems, rationality and facts, but also in the field of identification, imagination, subjectivity and emotion.

A second example is the way in which international economic texts provide an alibi for the presence of the ‘international community’ in states that are subject to economic restructuring. These texts make sense of the relations between ‘investors’ and ‘developing states’ in terms of a narrative of progress and development, in which a character called Capital is the agent of wealth and prosperity.[150] This creates the sense that actions undertaken to enable the exploitation and control of people and resources in such states are in fact about charity and benevolence. A belief in prosperity and progress as measures of worth, the justification of desperation and suffering in the name of the gods of efficiency and order, and assumptions about value based on gender, race and class are all necessary to be able to see the world in the terms required to accept economic narratives.

Both sets of texts (military and economic) can be seen as sites of disciplinary power, in that they play a part in the ‘constitution of subjects’: those who read these texts are invited to become part of the stories they tell. International legal texts operate as a form of representational practice, and such practice is itself an exercise of power. This form of power operates in part through shaping the way in which ‘individuals’ understand themselves and the world and then regulate their own behaviour in conformity with that image. Post-Cold War internationalism requires and is conditioned upon such personal, domestic acts of identification and imagination. This operation of disciplinary power can itself be seen as dependent upon the exploitation of ‘the Earth and its products — “elsewhere”.’[151] Access to the bodies, labour and resources of people in states subject to military and monetary intervention is the condition of the prosperous lifestyles of international lawyers and their audiences in industrialised liberal democracies. In turn, the exploitation of the suffering of people in civil wars or famines enriches global media corporations and their shareholders, and produces ‘the surplus-value of spectacle, entertainment, and spiritual enrichment for the “First World”.’[152]

V EXPERTS, POWER AND AUTHORITY

The adoption of the sovereign model of power discussed above also limits the capacity of scholars to reflect upon the forms of power exercised by international lawyers. Byers, for example, explains the performance of international lawyers in quite narrow terms. In particular, he imagines international lawyers in roles as judges or arbitrators, expected to explain the law rather than how it has developed.[153] Occasionally, lawyers may be asked to do something non-legal in character, such as advise on long-term policy with respect to issues of legal concern.[154] Missing from Byers’ account of the relationship between power and international law is any recognition of the power exercised by international lawyers as experts or producers of knowledge.

It is necessary to move away from a sovereign model of power in order to begin to think about the ways in which those aspects of the work of international lawyers are themselves political. The understanding that many international lawyers have of their professional role is shaped by the centrality of the sovereign model of power in international law. International lawyers, like many other professionals in industrialised countries, see themselves as essentially performing a neutral, technical function, and have not traditionally conceptualised power as something that they themselves exercise. At least since the publication of Edward Said’s Orientalism,[155] such an understanding of the role of knowledge producers in fields that engage with ‘other’ countries and cultures has been difficult to sustain. Yet international lawyers have continued to reproduce and refine an image of themselves and their role as apolitical and outside of power relations. International lawyers may write about power, but they rarely acknowledge that they are implicated in reproducing or making relations of power.

The understanding of knowledge production as a value-free exercise, involving the process of observing and describing a real world that exists externally to the observer, has been subjected to criticism from many quarters. In particular, it has been criticised by those scholars who analyse the ways in which many disciplines perpetuate race, gender and class as organising categories for understanding the world. A different approach to power can enable critical theorists to explore the ways in which lawyers participate in the deeply political process of making particular narrow ways of being appear normal and natural, thus delegitimising other ways of imagining what it is to be in the world.[156] The assumption that all power rests with sovereign states or international organisations allows for little reflection upon the power relations that international lawyers reproduce and make possible through their intellectual and legal practice. For example, international lawyers are offered the roles of experts on ‘development’ in Africa, Asia or Eastern Europe: producers of knowledge about populations or post-conflict institution building in states that have been involved in civil wars; or agents of human rights, democracy and the rule of law in faraway places. International legal texts produce knowledge about ‘other’ people, and tell stories about the horrors and atrocities that occur in distant lands. All of these roles involve the reproduction of power relations. The imperial desire to know and to access ‘other’ peoples and territories is transformed through the practice of international law into a sense of expertise and authorisation to speak about those who can be constructed as in need of ‘our’ help.[157]

Taking a broader approach to power also raises questions that are important for the kinds of feminist and anti-colonial political projects in which I am interested. When I first started writing about international law as a feminist woman in the academy, the temptation was to present my position as largely powerless, as a marginal or oppositional critic, voicing my protests about the actions of all-powerful institutions and processes, such as patriarchy, capitalism, globalisation and militarism. Gradually, I have come to realise that there are a number of problems that arise if such a position is assumed. The first is that, by understanding and presenting myself as powerless and those I am criticising as omnipotent, I run the risk of creating in myself and my audience a sense of hopelessness. If the patriarchy, the UN, the World Bank, the US or the faceless process of globalisation are indeed all-powerful and extremely destructive, it is hard to see exactly what use writing about their actions will be.[158] What can a reader who has learnt about the destructive consequences of military or monetary intervention conceptualise as a useful form of response or resistance if my image of those carrying out such interventions is one of totalising power? The realistic or pragmatic response for such a reader would be either to give up hope and focus instead on local and manageable problems and issues, or to join forces with these institutions and actions, on the basis that if you can’t beat them, join them.

The second problem that arises if I imagine myself as lacking in power is that I risk failing to take responsibility for the power that I do in fact exercise, and falling into the trap of a paranoid mode of understanding politics which assumes that there are all-powerful enemies who do exercise power over me and who must, if possible, be destroyed. The more I read and studied about the way in which people identify with leaders who act in brutal and evil ways, the more I realised that such people understand themselves first as victims and, thus, are able to feel a legitimate desire to destroy their enemies.[159] That raises difficult questions for me as a feminist: if to understand oneself as a victim is the prerequisite for being an oppressor, how could I be certain that such results were not the effects of my work?

Adopting a broader model of power allows me to think about how law disciplines its students and its officials, and to reflect upon the role that I play as an academic in that disciplining process.[160] It allows me to interrogate the desire that I share to be part of an international legal tradition that is built on imperialism, paternalism, elitism and the construction of others as exotic victims or enemies. It enables me to question what happens to people, including feminists, when they identify with a particular discipline or perform the narratives upon which it is founded. Is it possible to adopt the position, often adopted by feminist lawyers, of being somehow at once inside and outside of the discipline of law, critiquing it while making use of its assumptions, tools and power? Such questions are especially important for feminists engaging with a legal tradition that has been resistant to self-reflection and analysis of the power relations involved in constructing and protecting legal authority.

International law is thus a discourse that involves the constitution of subjects whose authority and identity is made possible by their relation to those in turn constituted as ‘other’. The positivist account of the relations between law and power does not allow us to think about how that process of exclusion of others might be resisted. This would require moving from an understanding of power as something exercised only by states or international organisations and their officials to an understanding of (and thus possibly a transgression of) the role of lawyers in ensuring the privilege, status and authority of experts and elites. We need interdisciplinary work that investigates useful ways of approaching the tasks of reading and writing ethically about international law. In particular, we need to recognise that reading and writing about international law involve the telling of stories and the formation of identities, by which certain ways of being are made to seem natural, desirable and privileged. In other words, reading and writing about international law involve the reproduction of power relations. Interdisciplinary approaches to international law might then more successfully come to terms with the appeal of law’s narratives about humanitarianism, peace, security, development and order; explore the ways in which international law shapes our understanding of our selves and the world; and contribute to the communal project of making it possible to imagine and create other ways of being.

VI CONCLUSION

Byers’ book is an important step forward in the attempt to create an interdisciplinary approach to the study of the power of international law. He engages closely with the work of traditional international relations scholars and in so doing illuminates some of the central problems that have bedevilled positivist legal analyses of the customary process. I am left, however, with a sense of disappointment owing to the mismatch between the broader theoretical goals that Byers seems concerned to achieve and the problems he chooses to address to reach those goals. If the intention of Byers’ interdisciplinary work is, as he suggests, to help him to think about whether international law can operate as a constraint on power, it is not clear why the questions he sets himself are limited to those with which the positivist proponents of the discipline have been obsessed. In other words, it may be that there are more pressing questions to ask about the capacity of international law to operate as a constraint on power than whether powerful states are unconstrained in their ability to shape the development of customary international law. As Ian Duncanson has argued, if we really are committed to interdisciplinary work, we cannot assume in advance that we can simply ‘“apply” additional disciplinary frameworks to legal phenomena’.[161] The objects we are studying, such as ‘law’ or ‘power’, are produced by the frameworks we use to study them — they will not necessarily mean the same things once we read them using the techniques of other disciplines.

The choices made by Byers and, indeed, by positivist international lawyers more generally, reinforce a politics that depends on a belief that the power of international law is only exercised in the realm of states. This view of politics limits the capacity of international lawyers to develop the ethical practices necessary to think critically about the power effects of the knowledge we produce. Such issues can only be addressed by complicating the way in which power is understood to operate in and through international law. While positivist international law remains concerned primarily with attempts to develop constraints on the exercise of centralised power as it operates at the level of states or international organisations, it ignores forms of power that operate in more productive and personal ways. Those who participate in shaping perceptions of the legality of the actions of states and international organisations need to develop further a self-reflexive intellectual practice which recognises that law’s stories are both an exercise, and an effect of, power relations.

ANNE ORFORD[*]


[1] See, eg, Anne-Marie Burley, ‘Toward an Age of Liberal Nations’ (1992) 33 Harvard International Law Journal 393; Anne-Marie Slaughter, ‘The Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations’ (1994) 4 Transnational Law and Contemporary Problems 377; Fernando Tesón, ‘Collective Humanitarian Intervention’ (1996) 17 Michigan Journal of International Law 323.

[2] Such concerns have been expressed over the last decade in relation to a wide range of issues. For a sample of critical analyses of the absence of constraints on the power of the United Nations Security Council, see Victoria Brittain (ed), The Gulf between Us: The Gulf War and Beyond (1991); Richard Falk, ‘The Haiti Intervention: A Dangerous World Order Precedent for the United Nations’ (1995) 36 Harvard International Law Journal 341; Judith Gardam, ‘Legal Restraints on Security Council Military Enforcement Action’ (1996) 17 Michigan Journal of International Law 285; Martti Koskenniemi, ‘The Police in the Temple: Order, Justice and the United Nations — A Dialectical View’ (1995) 6 European Journal of International Law 325; Roger Normand and Chris af Jochnick, ‘The Legitimation of Violence: A Critical Analysis of the Gulf War’ (1994) 35 Harvard International Law Journal 387; Henry Richardson, ‘The Gulf Crisis and African–American Interests under International Law’ (1993) 87 American Journal of International Law 42. Another source of such criticisms has been literature relating to the increasingly effective and rapidly shifting operations of international economic institutions in the post-Cold War era: see, eg, Antony Anghie, ‘Time Present and Time Past: Globalization, International Financial Institutions, and the Third World’ (2000) 32 New York University Journal of International Law and Politics 243; Chakravarthi Raghavan, ‘A New Trade Order in a World of Disorder?’ in Jo Marie Griesgraber and Bernhard Gunter (eds), World Trade: Toward Fair and Free Trade in the Twenty-First Century (1997) 1; Vandana Shiva, Stolen Harvest: The Hijacking of the Global Food Supply (2000); Lori Wallach and Michelle Sforza, Whose Trade Organization? Corporate Globalization and the Erosion of Democracy (1999).

[3] For discussions of the resulting literature, see Anne-Marie Slaughter, Andrew Tulumello and Stepan Wood, ‘International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’ (1998) 92 American Journal of International Law 367; Gerry Simpson, ‘The Situation on the International Legal Theory Front: The Power of Rules and the Rule of Power’ (2000) 11 European Journal of International Law 439.

[4] See David Kennedy, ‘The Disciplines of International Law and Policy’ (1999) 12 Leiden Journal of International Law 9, 106–9.

[5] Francis Fukuyama, The End of History and the Last Man (1992). As Jacques Derrida notes, this confident heralding of the end of history is far from novel, and was the stuff of political rhetoric in 1950s Europe. So for Derrida, ‘those who abandon themselves to that discourse with the jubilation of youthful enthusiasm ... look like latecomers, a little as if it were possible to take still the last train after the last train — and yet be late to an end of history’: Jacques Derrida, Specters of Marx: The State of the Debt, the Work of Mourning, and the New International (Peggy Kamuf trans, 1994) 15.

[6] Byers, below n 7.

[7] Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (1999) 215.

[8] Ibid 13.

[9] For a description of the project of 19th-century international lawyers in these terms, see Antony Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’ (1999) 40 Harvard International Law Journal 1.

[10] John Austin, The Province of Jurisprudence Determined (first published 1832, 1954 ed) 139.

[11] Ibid.

[12] Ibid 163.

[13] Ibid.

[14] See Thomas Lawrence, The Principles of International Law (1895) 1–25; John Westlake, Chapters on the Principles of International Law (1894) v–xvi, 1–16. See the discussion of this feature of their work in Anghie, ‘Finding the Peripheries’, above n 9, 10–22.

[15] Anghie, ‘Finding the Peripheries’, above n 9, 16–17.

[16] See Byers, above n 7, 7–8.

[17] Ibid 106.

[18] Ibid 21.

[19] E H Carr, The Twenty Years’ Crisis 1919–1939: An Introduction to the Study of International Relations (1939). For the argument that Carr has been ‘seriously and continuously misread’ as an advocate of ‘unrelenting realism’, see Ken Booth, ‘75 Years On: Rewriting the Subject’s Past — Reinventing Its Future’ in Steve Smith, Ken Booth and Marysia Zalewski (eds), International Theory: Positivism and Beyond (1996) 328, 329.

[20] Hans Morgenthau, Politics among Nations: The Struggle for Power and Peace (5th ed, 1972).

[21] See generally Barry Buzan, ‘The Timeless Wisdom of Realism?’ in Steve Smith, Ken Booth and Marysia Zalewski (eds), International Theory: Positivism and Beyond (1996) 47.

[22] Byers, above n 7, 13.

[23] Ibid.

[24] Ibid 14 (emphasis in original).

[25] Ibid 5.

[26] Ibid 6.

[27] Ibid.

[28] Ibid.

[29] Ibid 7.

[30] Ibid.

[31] Margaret Davies, Asking the Law Question (1994) 265–8.

[32] Byers, above n 7, 47, trans of ‘qui est impossible à résoudre sur le plan strictement juridique’: Brigitte Stern, ‘La coutume au coeur du droit international’ in Le droit international, unité et diversité: Mélanges offerts à Paul Reuter (1981) 479, 480 [trans: ‘Custom at the Heart of International Law’ in International Law, Unity and Diversity: Writings for Paul Reuter].

[33] Byers, above n 7, 7.

[34] Ibid 8.

[35] Ibid 14.

[36] For a discussion of the alternative models of power proposed by Foucault, see below

nn 134144 and accompanying text.

[37] Byers, above n 7, 19.

[38] Ibid 20.

[39] Ibid 206.

[40] For a detailed discussion of alternative approaches to conceptualising the relationship between power, sovereignty, the state and international law, see below Part IV.

[41] Byers, above n 7, 53.

[42] Ibid.

[43] Ibid 60.

[44] Ibid.

[45] Ibid 57.

[46] Ibid.

[47] Ibid 68.

[48] Ibid 59.

[49] The formula of ‘prompt, adequate and effective compensation’, generally referred to as the ‘Hull formula’, was first used by US Secretary of State Cordell Hull in a letter to the Mexican Ambassador on 21 July 1938: reproduced in (1938) 5 Foreign Relations of the United States: Diplomatic Papers 674, 678. The letter was written in response to the Mexican expropriations designed to achieve land reform in that state.

[50] Byers, above n 7, 59.

[51] Ibid.

[52] Ibid (emphasis in original).

[53] Ibid 80.

[54] Ibid 81–2.

[55] Ibid 82.

[56] A similar argument could be made about Byers’ broad use of the notion of territory to include constructive extensions of territory, such as vessels and nationals. These extensions of territory do not relate to his earlier point that a state has more power over those areas within its territory in a physical or geographical sense, because of the capacity of the state to dominate those areas using military or similar forms of power: ibid 60–4.

[57] See the discussion in below Part IV.

[58] Byers, above n 7, 75.

[59] Ibid 78.

[60] Anghie, ‘Finding the Peripheries’, above n 9, 17.

[61] Ibid 26.

[62] See the discussion in Antony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’ (1996) 5 Social and Legal Studies: An International Journal 321.

[63] See Lawrence, above n 14.

[64] Philip Alston, ‘The Myopia of the Handmaidens: International Lawyers and Globalization’ (1997) 8 European Journal of International Law 435, 444.

[65] For a discussion of interpretations of the fate of the NIEO, see James Thuo Gathii, ‘International Law and Eurocentricity’ (1998) 9 European Journal of International Law 184, 207.

[66] Byers, above n 7, 129ff.

[67] Ibid 130.

[68] See North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) (Merits) [1969] ICJ Rep 3, 44.

[69] Byers, above n 7, 133.

[70] Ibid 136.

[71] Ibid 142.

[72] Ibid.

[73] Ibid 145.

[74] Ibid 147–51.

[75] Ibid 148.

[76] Ibid 213.

[77] Ibid.

[78] Ibid 162–5.

[79] Ibid 151–2.

[80] Ibid 163.

[81] Martti Koskenniemi, ‘The Pull of the Mainstream’ (1990) 88 Michigan Law Review 1946, 1953.

[82] Byers, above n 7, 165.

[83] Ibid 220.

[84] See below nn 103108 and accompanying text.

[85] Byers, above n 7, 220.

[86] See below Part IV.

[87] For further discussion of ch 11, see below Part III.

[88] Byers, above n 7, 215, citing C Wright Mills, The Sociological Imagination (1959).

[89] For a discussion of the sociological approach of 19th-century positivists, see especially Anghie, ‘Finding the Peripheries’, above n 9, 21.

[90] Byers, above n 7, 216.

[91] Ibid 14.

[92] Ibid.

[93] Ibid 206.

[94] Ibid 214.

[95] Ibid 46.

[96] Kenneth Abbott, ‘International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts’ (1999) 93 American Journal of International Law 361.

[97] Ibid 362 (emphasis omitted).

[98] Ibid.

[99] Martti Koskenniemi, ‘Letter to the Editors of the Symposium’ (1999) 93 American Journal of International Law 351, 357, 359.

[100] Alison Young, Femininity in Dissent (1990) 10.

[101] David Kennedy, ‘Law’s Literature’ in Marjorie Garber, Paul Franklin and Rebecca Walkowitz (eds), Field Work: Sites in Literary and Cultural Studies (1996) 207, 212.

[102] Terry Threadgold, ‘Critical Theory, Feminisms, the Judiciary and Rape’ (1993) 1 Australian Feminist Law Journal 7, 9.

[103] Anders Stephanson, ‘Rethinking International Relations’ (1996) 220 New Left Review 137, 142. See also Cynthia Weber, Simulating Sovereignty: Intervention, the State and Symbolic Exchange (1995).

[104] See, eg, David Campbell, Writing Security: United States Foreign Policy and the Politics of Identity (1992); William Chaloupka, Knowing Nukes: The Politics and Culture of the Atom (1992); Graeme Cheeseman and Robert Bruce (eds), Discourses of Danger and Dread Frontiers: Australian Defence and Security Thinking after the Cold War (1996); Carol Cohn, ‘Sex and Death in the Rational World of Defense Intellectuals’ (1987) 12 Signs: Journal of Women in Culture and Society 687; Miriam Cooke and Angela Woollacott (eds), Gendering War Talk (1993); Weber, above n 103.

[105] See, eg, Rey Chow, ‘Violence in the Other Country: China as Crisis, Spectacle, and Woman’ in Chandra Mohanty, Ann Russo and Lourdes Torres (eds), Third World Women and the Politics of Feminism (1991) 81; Amy Kaplan and Donald Pease (eds), Cultures of United States Imperialism (1993); Anne McClintock, Imperial Leather: Race, Gender and Sexuality in the Colonial Contest (1995); Kristin Ross, Fast Cars, Clean Bodies: Decolonization and the Reordering of French Culture (1995); Edward Said, Culture and Imperialism (1993).

[106] J K Gibson-Graham, The End of Capitalism (As We Knew It): A Feminist Critique of Political Economy (1996); Gayatri Spivak, A Critique of Postcolonial Reason (1999).

[107] See Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (1995); Judith Grbich, ‘Taxation Narratives of Economic Gain: Reading Bodies Transgressively’ (1997) 5 Feminist Legal Studies 131; Meaghan Morris, Ecstasy and Economics: American Essays for John Forbes (1992); Gayatri Spivak, Outside in the Teaching Machine (1993); Patricia Stamp, ‘Pastoral Power: Foucault and the New Imperial Order’ (1994) 3 Arena Journal 11.

[108] V Spike Peterson, ‘The Politics of Identity and Gendered Nationalism’ in Laura Neack, Patrick Haney and Jeanne Hey (eds), Foreign Policy Analysis in Its Second Generation: Continuity and Change (1995) 167, 183. Peterson argues that the ‘gendered dichotomy of public–private structures the study and practice of international relations and foreign policy’ and that one result is the ‘discipline’s neglect of activities associated with the private sphere.’

[109] Byers, above n 7, 4.

[110] Ibid 220.

[111] Ibid 31.

[112] Anne-Marie Slaughter, ‘The Real New World Order’ (1997) 76(5) Foreign Affairs 183.

[113] Alston, above n 64.

[114] Anghie, ‘Francisco de Vitoria’, above n 62.

[115] Cynthia Enloe, ‘Margins, Silences and Bottom Rungs: How to Overcome the Underestimation of Power in the Study of International Relations’ in Steve Smith, Ken Booth and Marysia Zalewski (eds), International Theory: Positivism and Beyond (1996) 186.

[116] Ibid 186 (emphasis in original).

[117] Richard Ashley and R B J Walker, ‘Reading Dissidence/Writing the Discipline: Crisis and the Question of Sovereignty in International Studies’ (1990) 34 International Studies Quarterly 367.

[118] Campbell, above n 104.

[119] R B J Walker, Inside/Outside: International Relations as Political Theory (1993) 159–83; R B J Walker, ‘From International Relations to World Politics’ in Joseph Camilleri, Anthony Jarvis and Albert Paolini (eds), The State in Transition: Reimagining Political Space (1995) 21.

[120] Weber, above n 103.

[121] David Kennedy, ‘Images of Religion in International Legal Theory’ in Mark Janis (ed), The Influence of Religion on the Development of International Law (1991) 137, 138–9.

[122] Ibid.

[123] Campbell, above n 104, 56.

[124] Ibid 55.

[125] Walker, The State in Transition, above n 119, 28.

[126] Campbell, above n 104, 46–8.

[127] Ibid 55.

[128] See generally Jenny Edkins, Nalini Persram and Véronique Pin-Fat (eds), Sovereignty and Subjectivity (1999).

[129] Nalini Persram, ‘Coda: Sovereignty, Subjectivity, Strategy’ in Jenny Edkins, Nalini Persram and Véronique Pin-Fat (eds), Sovereignty and Subjectivity (1999) 163, 171.

[130] Austin, above n 10; H L A Hart, The Concept of Law (1961).

[131] The structure of international argument has swung between apologetic or pragmatic approaches to the fact that international lawyers have to be realistic about where power lies and idealistic approaches that make great claims for the possibility that international law can constrain such power: see Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989).

[132] See, eg, Anthony D’Amato, ‘Is International Law Really “Law”?’ (1985) 79 Northwestern University Law Review 1293.

[133] For an account of the ways in which a feminist poststructuralist rethinking of the relationship between power and the subject might be used to develop strategies for writing a legal theory for women, see Judith Grbich, ‘The Body in Legal Theory’ in Martha Fineman and Nancy Thomadsen (eds), At the Boundaries of Law: Feminism and Legal Theory (1991) 61.

[134] Michel Foucault, The History of Sexuality: An Introduction (Robert Hurley trans, 1980) vol 1. For other scholarship that makes use of the work of Foucault in an international legal context, see Simon Chesterman, ‘Law, Subject and Subjectivity in International Relations: International Law and the Postcolony’ [1996] MelbULawRw 16; (1996) 20 Melbourne University Law Review 979; Dianne Otto, ‘Everything is Dangerous: Some Post-Structural Tools for Rethinking the Universal Knowledge Claims of Human Rights Law’ [1999] AUJlHRights 1; (1999) 5 Australian Journal of Human Rights 17.

[135] Michel Foucault, ‘Two Lectures’ in Colin Gordon (ed), Power–Knowledge: Selected Interviews and Other Writings 1972–1977 (Colin Gordon et al trans, 1980) 78, 105.

[136] Ibid 97.

[137] Ibid 104.

[138] Foucault, The History of Sexuality, above n 134, 92.

[139] Foucault, ‘Two Lectures’, above n 135, 97.

[140] Persram, ‘Coda: Sovereignty, Subjectivity, Strategy’, above n 129.

[141] Eve Sedgwick, Tendencies (1993) 5–6. Sedgwick describes that sense of power with reference to the ‘Christmas effect’. At Christmas time all kinds of institutions and relations (the Church, the state, commerce) line up behind the notion of Christmas. While it seems as if all these institutions speak in the same voice, the effect is not due to the power of some central body, but rather because of the sense of unitary power produced by all these disparate bodies and entities lining up in that way.

[142] Susan Griffin, A Chorus of Stones: The Private Life of War (1992).

[143] Foucault, ‘Two Lectures’, above n 135, 105.

[144] Ibid.

[145] Spivak, above n 106, 278.

[146] Ibid 279 (emphasis in original).

[147] Said, Culture and Imperialism, above n 105, 9 (emphasis in original), commenting on the role of this narrative in 19th-century colonialism. On the ways in which these ideas enable military and monetary intervention in the post-Cold War era, see Anne Orford, ‘Locating the International: Military and Monetary Interventions after the Cold War’ (1997) 38 Harvard International Law Journal 443, 481–3.

[148] Terry Threadgold, ‘Introduction’ in Terry Threadgold and Anne Cranny-Francis (eds), Feminine–Masculine and Representation (1990) 1, 27.

[149] See further Anne Orford, ‘Muscular Humanitarianism: Reading the Narratives of the New Interventionism’ (1999) 10 European Journal of International Law 679.

[150] Grbich, above n 107; Escobar, above n 107.

[151] Spivak, above n 106, 278.

[152] Chow, above n 105, 84.

[153] Byers, above n 7, 48.

[154] Ibid 16.

[155] Edward Said, Orientalism (1978).

[156] Andrea Rhodes-Little, ‘Review Essay: Who Do We Think “We” Are’ (1997) 8 Australian Feminist Law Journal 149.

[157] See generally Anne Orford, ‘Embodying Internationalism: The Making of International Lawyers’ [1998] AUYrBkIntLaw 1; (1998) 19 Australian Year Book of International Law 1.

[158] See the discussion in Gibson-Graham, above n 106, 263.

[159] See Jacqueline Rose, The Haunting of Sylvia Plath (1992) 210: ‘Perpetrators experience themselves as victims in order both to deny and to legitimate their role (to be a perpetrator you have first to “be” a victim)’ (emphasis in original); Anita Eckstaedt, ‘Two Complementary Cases of Identification Involving “Third Reich” Fathers’ (1986) 67 International Journal of Psycho-Analysis 317, 326: ‘It is only a matter of time before the defence of experiencing oneself as a victim meets up with the repressed experience of harbouring the intentions of the perpetrator’; Anthony Elliott, ‘Symptoms of Globalization: Or, Mapping Reflexivity in the Postmodern Age’ in Joseph Camilleri, Anthony Jarvis and Albert Paolini (eds), The State in Transition: Reimagining Political Space (1995) 157, 167.

[160] See further Grbich, ‘The Body in Legal Theory’, above n 133.

[161] Ian Duncanson, ‘Legal Education and the Possibility of Critique: An Australian Perspective’ (1993) 8(2) Canadian Journal of Law and Society 59, 69.

[*] BA, LLB (Hons) (Qld), LLM (London), PhD (Adelaide); Senior Lecturer, Faculty of Law, the University of Melbourne. Many thanks to Professor Hilary Charlesworth and Dr Andrew Robertson for their helpful comments on earlier versions of this review essay.