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Australian Year Book of International Law |
Anne Orford[*]
Even when we think we are simply communicating information, or being rigorously and exclusively intellectual, or just talking, we are in fact engaged in performances, in relation to others, that are ethical and political in character and that can be judged as such … Whenever we talk we create a character for ourselves and a relation with others: we offer to constitute a community of a certain kind, for good or ill, and this is often the most important part of what we do.[1]
With the ending of the Cold War, the narratives that underpin the discipline of international law have undergone a profound transformation. A new kind of international law and internationalist spirit seem to have been made possible in the changed conditions of a world no longer structured around the old certainties of a struggle between communism and capitalism. A range of international lawyers and international relations experts have supported the enthusiasm for military and monetary intervention evidenced by international and regional institutions in this new environment. Those arguing in favour of increased military and monetary intervention include: liberal internationalists eager to create an alliance of democratic States;[2] international lawyers and political scientists advocating an expanded humanitarian role for the United Nations Security Council and regional organisations such as the North Atlantic Treaty Organisation (NATO);[3] advocates of globalisation celebrating intervention in the name of the free market; and officials of the International Monetary Fund and the World Bank seeking to impose standards of “good governance” and conditions requiring economic liberalisation on States using their resources.[4] While some human rights lawyers have been sceptical about the new enthusiasm for intervening on behalf of freedom and democracy,[5] others appear increasingly haunted by the fear that opposing intervention in Kosovo, East Timor or Haiti means opposing the only realistic possibility of international engagement to end the horrific human suffering we witness in those places.
This article does not enter into the debate about when military intervention is called for, or whether such intervention addresses the causes of insecurity and achieves humanitarian or democratic outcomes. Rather, the focus of the article is on the meanings that are made of military intervention in international legal texts. I am interested in exploring the effects of the ways in which internationalists speak and write about collective security and international intervention. As Michel Foucault argues, “to speak is to do something — something other than to express what one thinks, … to add a statement to a pre-existing series of statements is to perform a complicated and costly gesture”.[6]
The narratives of the new interventionism are premised on an image of international law and institutions as agents of freedom, order, democracy, liberalisation, transparency, humanitarianism and human rights. The international community is presented as having a responsibility to act to protect those living in failed States or in regions devastated by civil war and armed conflict. Military intervention is not only justifiable but morally required to rescue the victims of ethnic cleansing, attempted genocide, religious fundamentalism and massive human rights violations. Monetary intervention is necessary to restore the economic fundamentals of States that have proved unable to govern themselves prudently. These representations of international intervention help to shape the identities and world-view of all those who engage with them.[7]
The aim of this article is to reflect upon the way in which the new interventionism plays a part in forming the self-image or sense of self of international lawyers. The operation of law as a cultural process has particular relevance for international lawyers, who through disciplinary training come to embody and internalise the foundational narratives of their discipline. I focus on the impact of intervention narratives on international lawyers, not due to a belief that they are the originators or authors of such narratives, but rather because lawyers are the people who perhaps live intervention stories most closely, whose professional status is dependent on the embodiment of law’s stories, and whose lived daily experience involves speaking and writing such narratives.[8] I want to think about what lawyers are doing when they reproduce intervention stories: the characters and relations with others they create, the communities they offer to constitute, and some of the effects of such actions. In so doing, I attempt to provide a broader insight into the way in which law operates through embodied human beings.
Lawyers’ perception of their role is produced or shaped both through the disciplinary processes involved in becoming a “professional”,[9] and through subject-forming practices or “technologies of the self” that take place outside disciplinary fora.[10] As the work of feminist theorist Terry Threadgold has shown, the process of being trained in a discipline often involves coming to believe, reproduce, guard and pass on the narratives at the heart of that discipline.[11]
To be disciplined ... is to learn to embody, to perform, and to enact on a daily basis, in the workplace, as everyday pedagogy, not only the academic genres that constitute the theories and practices of the discipline, but also the genres of social relations and embodied subjectivity that construct the discipline as ‘a body’ of knowledge … To succeed in the discipline means to be able to perform its genres, and to speak and write and embody its favourite discourses, myths, and narratives.[12]
Threadgold argues that as scholars and teachers many of us “find ourselves reproducing the languages and practices” that characterised those who taught us, and that “we do this because we have been ‘disciplined’ (trained within a discipline and made subject to it) by the technologies of a profession (its languages and practices, its rules of inclusion and exclusion, its prevailing orders of social relations) which have produced us as particular kinds of people”.[13]
The question of “disciplining” has become of interest to feminists and others investigating both the conditions of their own authority and their lack of disciplinary authority as members of disqualified groups.[14] For those people who suffer an epistemological disqualification, becoming a lawyer, an academic, an expert, an internationalist, or all at once, means becoming at the same time authorised and unauthorised, a subject with a stake in power and an object of power, oppressor and oppressed. While the same may be true even of those who seem to suffer from no such epistemological disadvantage, the nature of disciplining is particularly complicated and at times painful to explore for those of us who negotiate with authority in such a way.[15]
The ways in which lawyers are disciplined is rarely explored, largely because the protocols of scholarly writing in disciplines like law have for a long time required that the “author” be absent from the text.[16] Areas of knowledge such as law, which claim to be objective and technical, require that the embodied nature of the human being creating the texts in question be forgotten. An analysis of the ways in which lawyers are produced is, therefore, seen as irrelevant to the central debates of the discipline. The process of disciplining becomes relevant, however, if we want to analyse the subject positions (such as rescuer, humanitarian or professional) offered to international lawyers, and to consider why such subject positions are appealing.
In order to analyse how international lawyers have been made subject to the disciplines that regulate their actions, it is necessary to focus not only on the way in which they are disciplined or produced as professionals, officials or experts, but also the ways in which they are produced through other subject-forming practices, such as family life, friendships or watching media stories about crises in the “Third World”.
We have all been produced within the disciplines, and within different vocational practices, not to speak of our differently embodied pasts in specific regimes of family and school, regimes that intersect with sexual, gendered, class-based and colour-based differences and countless other kinds of interpersonal relationships which quite literally have been “technologies” for making difference, different selves, and different sorts of reality.[17]
Lawyers understand themselves as acting objectively in their professional roles, outside the realms of the everyday. Nevertheless, like all other human beings, lawyers are produced not only through professional and disciplinary training, but also through “pedagogies of everyday life”.[18] The roles international lawyers imagine for themselves as global saviours and problem-solvers in their writing about intervention are unimaginable outside a world defined and ordered according to categories of gender, class, race and sexuality. Those roles only make sense if the assumptions learned as part of being middle-class colonising men and women, for example, are taken for granted. In particular, television news, popular novels and Hollywood films are saturated with narratives of internationalism and particular images of what it is to be a professional within the new world order. Those United States-dominated cultural representations are part of the process of producing the subjects of law.
Part I of this article analyses the relationship of the sense of self of international lawyers to the narratives of the new interventionism. Part II considers some of the processes through which this subjectivity or sense of self of international lawyers is produced or shaped, focusing in particular on legal education and engagement with the broader culture of imperialism as relevant “technologies of the self”. Part III explores the ways in which intervention stories operate to create stable and secure identities for international lawyers.
The writing, reading and performing of narratives of intervention by international lawyers operates to constitute a community of a certain kind, by creating characters for international lawyers and relations with others. Four aspects of intervention narratives in particular shape the sense of self of international lawyers.
First, the self-image of international lawyers is formed in part by the new meanings attributed to professionalism in the interventionism of the post-Cold War era. One role imagined for international lawyers in intervention narratives is as part of an influential network of pragmatic, problem-solving professionals, striding the corridors of power and being involved in history-making events. International law is presented as offering a programmatic, functional and yet civilised process by which to manage threats to global peace, security and prosperity.[19] Collective security texts invite lawyers to see themselves as managerialists, acting in a cool, professional and realistic way to advise those with power about the law. From representations of the Gulf War as clean, quick and surgical, through the images of international law engaged in efficiently saving lives and protecting human rights and democracy, to the description of pragmatic international lawyers who are proficient in providing technical, legal advice, international law draws on and reinforces the image of a professional style of heroism for a new world order. The image of the role required of those engaged in international intervention in the post-Soviet era is well-illustrated by Larry Minear and Philippe Guillot.
The hallmarks of effective interventions are common ... whether the actors are military or humanitarian. Successful efforts are generally carried out by dedicated and energetic professionals who are well-informed about the complexities of a given situation and well-trained in their respective specialities, pragmatic rather than ideological in approach, and able [to] draw on institutional experience to adapt strategies and resources to circumstances.[20]
The image of international lawyers as managerialists is shaped by a new world order professionalism that has emerged in the highly militarised and masculinised political culture of story-telling about international intervention. The promotion of a particular version of international managerialism through global media regimes has been explored by Susan Jeffords in the context of the Gulf War.[21] Jeffords argues that one significant outcome of the Gulf War was the construction of the character of the “managerial hero”, who will “stand as the US contribution to the New World Order, a character that serves as a quasi-technological imperial offering that reinforces US interests in dominating that ‘new order’”.[22] The managerial hero is a pragmatic internationalist, whose effectiveness is a result of his professionalism and managerial style. Both the media reporting of the Gulf War and the popular cultural representations that surrounded it functioned to create and celebrate that character.
Jeffords gives, as one example of the attributes of that character, the way in which the media described and applauded the performance of the United States President George Bush during the Gulf War. The particular skills for which Bush was lauded were not, as might have been expected, his military skills, but skills of management. According to Fortune magazine, for example: “The President has focused his enormous energy on the managerial tasks proper to his role: setting goals, providing resources, monitoring progress, making strategic decisions, selling the war, and putting out periodic fires”.[23] The role of manager of the Gulf War involved delegation, systems coordination, marketing, goal-setting and efficient decision-making, rather than the more traditional Presidential role of making strategic decisions about targets or troop movements.
Jeffords points to a similar “heroism of choice” described in “today’s techno-thriller best-sellers”.[24] The heroes of such novels and their counterparts in the new world order are distinguished by “a professional quality — a ‘character’ — that not only makes them successful but, in each case, resolves violent and desperate international crises”.[25] A key feature of the new world order professional promoted in such American (and thus global) cultural representations is that their success is due not to individual knowledge or skill, but rather to their ability to gather information and to draw upon and manage the skills of a network of other professionals.[26] Jeffords argues that “world-crisis-resolving decision makers” such as George Bush or his fictional counterparts are “at the pinnacle of an integrated network of information managers upon whom they depend”.[27] These “information managers” include “intelligence agencies, information-gathering computerized systems, large corporations, government administrators, skilled field operators, ... a wide-ranging police/military structure” and, I would add, international lawyers.[28]
One effect of the selling of the managerial hero and the “success” of the Gulf War has been to validate the operations of that network of information managers, and to make it easier for people in States involved in the new forms of military intervention to imagine themselves as engaged in activities that support managerial heroes.[29] The meaning of work and of professionalism is reconstituted by the notion that managerial heroes depend upon and coordinate a network of other professionals serving the interests of their country and the new world order. Being a professional in such a context means following the lead of the heroic decision-makers, acting as a part of a system, being a “patriot”, doing a job that will contribute to the defence of the nation and broader humanitarian values, not asking unnecessary questions, and accepting the message that, in Jeffords’ words: “You will probably never know the real role your work will play in world events, but be assured that it will”.[30] Each professional should be concerned only with being proficient and competent in performing their particular function — be that providing legal advice, making computer chips that are necessary for weapons systems, or dropping napalm.[31] Broader ethical or political questions are, by implication, best left to those who understand the whole system, rather than to those who have a defined but minor role to play in world events. Those cultural representations of professionalism play a part in shaping the subjectivity of all those who identify as part of the “patriot system”.
International lawyers are increasingly invited to be part of that system of heroic managerialism. During the Gulf War, for example, delegates to the United Nations Security Council concerned themselves with the legality of the various courses of action open to the Council as part of the process of determining what action should be taken and producing public justifications for such action.[32] While Martti Koskenniemi, a legal adviser to the Finnish delegation, saw in this the potential of international law to become a “gentle civilizer”, international law can equally be seen to have been in service to the more pragmatic, bureaucratic managerialism dominating the Council.[33] As Koskenniemi notes, both the Security Council and the United Nations more broadly are governed by just such a technocratic ethos.[34] Delegates to the Security Council have traditionally been trained in the “hard realities of power politics — one does not get into a Council delegation by having served in development assistance”.[35] The United Nations is characterised by “an international culture of functional specialization and compartmentalization”.[36] Representations of the legality of the Gulf War and its conduct under the auspices of the United Nations may have increased its public legitimacy, but it is far from clear that the place of law in decision-making acted to “civilise” the effects of that action on the Iraqi people, or to import a meaningful “process of justification” into Security Council practice.[37]
Intervention texts create a second role for international lawyers as humanitarians, saving victims of oppression and human rights abuses. Those arguing in favour of collective humanitarian intervention present idealised images of international institutions and international law as agents of democracy and human rights, with which international lawyers are able to identify. Such intervention stories speak to those who dream of working for a participatory and just world order, involving those international lawyers interested in refugee law, human rights law or international humanitarian law. The muscular humanitarian, a “knight in white armour”,[38] is able to champion the causes of democracy and freedom due to the force exercisable through military or monetary intervention in defence of those values.
Perhaps the most useful work done on this aspect of the role of international law is that of David Kennedy, who offers a careful reflection upon the self-constitution of international lawyers.[39] Kennedy explores the nature of the way in which the belief in the role of international law is embodied in the everyday life of those who imagine themselves as agents of humanitarianism and human rights. His work reflects upon the character of human rights lawyer and professor that he is invited to create and live inside as he moves through the international legal world of conferences, human rights activism, field work, international travelling, teaching and administration. According to Kennedy, the human rights lawyer embodies the promise of liberal institutionalism — that law exists to bring freedom and order to those in need of these values. Lawyers imagine the law as “an instrument of social change, a force for freedom”, “something fabulous, abstract, even magical”, and “constitute themselves as activists in its service”.[40]
That role involves defining the professional self against emotional, idealistic and irrational political actors, against rigid technocrats and against those passive and helpless victims receiving international aid. Kennedy suggests that the identity of international lawyers is premised upon the construction of a distance between the world of activism and the professional world of legality.[41] He uses the example of his attendance at a conference in Portugal on East Timorese self-determination to describe the way in which the fantasy of his own role as representative of “a force for freedom” is dependent upon an opposition between the universalism of international law and the messy particularities of the world of victims and activists.
I think about myself going to Lisbon — I may become magic, an objective expert, a professional agnostic, a temporary interloper, a generalist, a formalist, bringing world public opinion, world public order, the rational and the reasonable into the continuing everyday of Timor activism. As a lawyer, I will be more than my everyday.[42]
The character of the lawyer is constituted through creating a distance, both from the “victim” of human rights abuses or the client, and from activists whose relationship with those clients or victims is much more engaged. The “collective fantasy” of the victim shores up the role of the international lawyer, and creates a shared community that emerges, allegedly as a by-product of “our earnest work” on behalf of the victims.[43] The lawyer thus arrives in the “everyday” in a “messianic or metropolitan posture — a lawyer gone to activism, the general arrived in the specific”.[44] The human rights lawyer is constituted as a leader rather than a comrade, imagined as existing in the public sphere outside of personal networks and relations. The everyday life of international human rights lawyers involves creating communities, characters and relations with others that act to preserve the international lawyer’s sense of relevance, power, pragmatism and effectiveness. The humanitarian international lawyer is also a new world order “professional” in the sense Jefford describes. The professionalism at work in that area of international law requires human rights lawyers not to rock the boat of internationalism, while ensuring that human rights and democracy are brought to those people in need of rescue. As a result, international lawyers often do not question the extent to which international intervention or the activities of international institutions in fact destroy the values that they are allegedly designed to promote.[45]
The picture of international lawyers painted in security texts draws upon broader representations of the role of international lawyers. The narratives that underlie the justifications for international intervention provide international lawyers with a sense of belonging to an elite group — a group that has an influence on history, on powerful institutions and on States.[46] That sense is reinforced by the genre of biographical and autobiographical musings in journals, by analyses that describe the relationship of lawyers to important events and by the nature of the issues dealt with in international law.[47] Many reflections on international legal education and practice convey a sense of a close relationship or proximity to powerful and elite institutions. Such visions of the role of international lawyers create a strong sense of their authority, status and expertise. Those conceptions of the elite and functional role of international law and international lawyers inform intervention narratives of the post-Cold War era.
While international lawyers are represented as having a close relationship to those with real power, such power is not portrayed as exercisable by lawyers themselves.[48] Martti Koskenniemi’s exploration of the role of international lawyers in the field of collective security provides a good example of the tendency to represent international lawyers as if they do not in fact exercise power. Koskenniemi sees international law as a potential “gentle civiliser” in the field of collective security, involving the “curious, yet typical, ability to engage the practitioner in political action while seeking distance from anyone’s idiosyncratic interests”.[49] In describing lawyers and law in such feminine terms, Koskenniemi taps into the broader representation of international lawyers as practitioners or scholars who do not themselves exercise power, but simply act as the facilitators of what people with real power have decided to do. Like a Nancy Reagan or a Dame Pattie Menzies, international lawyers stand beside or behind statesmen and world leaders, from time to time whispering advice into their ears about legal constraints on action, but not in fact exercising power themselves. The image of international lawyers as humane, professional, elite advisers to real decision-makers is seductive, promising access to power while denying responsibility for its exercise.
A common theme of writing about intervention is the call to action, a discussion of the need to “do something”. A commitment to humanitarian ideals is seen to demand action from the international community, in the form of intervention. Thomas Weiss, for example, argues that, while humanitarian intervention may be counterproductive to the tasks of democratisation and peace-building, ruling out the option of such action will render the United Nations powerless to act, destroy its credibility and condemn it to the fate of the League of Nations.[50] Weiss presents a stark choice:
[I]n light of genocide, misery, and massive human rights abuses in war zones around the world, should Pontius Pilate be the model for both the American and the international response? The fatalism and isolationism that flow from most objections to humanitarian intervention are as distressing as the situation in the countries suffering from ethnic conflict where such an action is required … A purely noninterventionist position amounts to abstention from the foreign policy debate.[51]
Similarly, Fernando Tesón argues that it is better for States to take collective action to intervene in favour of the rights and interests of human beings, even if such action may do some harm, rather than to remain inactive and, as a result, incapable of providing either relief from brutality or assistance in the achievement of democratic government.[52]
It is ... surprising to be told that the very crimes that prompted the massive, cruel and costly struggle from which the United Nations was born, are now immune from action by the organ entrusted to preserving the fruits of the hard-won peace. The formalism of anti-interventionists thus not only rewards tyrants, but it betrays the purposes of the very international order that they claim to protect.[53]
Even those who reject the legitimacy of collective humanitarian intervention appear haunted by the fear that failure to act under the auspices of the Security Council may represent a betrayal of our duty to be engaged in the world in the interests of humanity. Richard Falk’s critical analysis of the precedent set by Security Council resolutions concerning Haiti provides a good illustration of that concern.[54] While Falk mounts a strong case against Security Council action in Haiti, he admits to a fear that advocating non-intervention may equal advocating inaction.
Having mounted this case against intervention, a haunting question must be posed: with all of its deficiencies, isn’t it better to have confronted and deposed Cedras, to have provided relief to the Haitian people from the widespread daily brutality and to have given them an opportunity to compose a more democratic government that addresses the poverty of the people?[55]
Similar representations dominate legal analyses of the Kosovo crisis. Antonio Cassese, for example, while arguing that the NATO action represents a significant breach of United Nations standards, nevertheless comments:
[A]ny person of common sense is justified in asking him or herself the following dramatic question: Faced with such an enormous human-made tragedy and given the inaction of the UN Security Council due to the refusal of Russia and China to countenance any significant involvement of the international community to stop the massacres and expulsions, should one sit idly by and watch thousands of human beings being slaughtered or brutally persecuted? Should one remain silent and inactive only because the existing body of international law rules proves incapable of remedying such a situation? Or, rather, should respect for the Rule of Law be sacrificed on the altar of human compassion?[56]
The characterisation of intervention as active and productive, and non-intervention as inactive and negative, appears to inform the popular response that we should do something to address the suffering and despair in Bosnia, Somalia or Rwanda, rather than do nothing. As one commentator notes:
In a world of satellite communications, with television images of suffering broadcast as they occur, few democratic governments are immune to the public clamour to ‘do something’.[57]
The sense of frustration felt by some commentators when military intervention as an avenue for action is closed off is well illustrated by Thomas Weiss. Weiss describes the United Nations Protection Force for the former Yugoslavia (UNPROFOR) as “eunuchs at the orgy”, due to the constraints imposed on the capacity of UNPROFOR to use force in that conflict.[58]
At the heart of this call to arms is the unacceptability of passivity. Doing something, however destructive, is clearly seen as better than doing nothing. At stake here is the sense of oneself as an active subject. Once we begin to tell stories about victimised, suffering, slaughtered others, we cannot bear to identify with that position. If we have no active hero with whom to identify, we risk seeing ourselves as passive objects. Thus international lawyers who advocate extremely violent forms of intervention, such as the bombings undertaken during the Gulf War or by NATO in the Kosovo crisis, would rather urge action be taken at any cost than accept that “nothing” may be all that is left to do.
As David Kennedy shows, this creation of an “active” self is dependent upon constructing others as victims. The nature of the self created through identification with the role of saviour depends upon the existence of such victims. Kennedy explores that relationship, through an analysis of the shifting meanings he made of his role as a human rights activist on a United States delegation to Nicaraguan prisons in 1984.[59] He draws attention to the way in which his identity as an active, American lawyer on a mission for human rights depended upon imagining those in prison as passive victims. When he met with a female prisoner whom he characterised as a victim of human rights abuses, Kennedy experienced a heightened sense of purpose and motivation. In contrast, when he met with two male prisoners visited by his delegation as equals and political activists engaged in struggle, he was left feeling solidarity but a lack of agency, connected but resigned.
Ramon and Francisco seemed to carry themselves as temporarily defeated warriors in a greater political struggle, and that is how they seemed to view their own stories of capture, torture, and imprisonment. Imprisoned warriors like Ramon and Francisco seemed our equals; they needed no rescue. To them we were comrades, coparticipants in a political struggle. The connection we had felt when in their presence … diminished my sense of purpose … [T]he passive victim awakens my indignation and motivates me to act … We might be able to do something.[60]
This gendered differentiation between active political equal and passive victim, between political person and abject object, between warrior body and violated body, structured Kennedy’s “sense of progress, of moving meaningfully forward with our mission … [T]he incomprehensible violation of a woman’s body kept something hidden and mysterious, so that something else, intentional knightly deployment, could seem familiar”.[61] Kennedy reveals that the sense of agency and movement he felt was dependent upon constructing those he met as “victims”. The gendered distinction between responding to those prisoners as active warriors or passive victims shaped the meanings that his human rights team made of their experiences. Those distinctions between saviour and victim, between international and local, between avenger and abused, are at the heart of the fascination of security stories. These oppositions are necessary to sustain the feeling of progress, agency and freedom that such narratives engender.[62]
In the same way, stories about the need for military intervention involve detailed descriptions of powerless, victimised States and peoples, and in so doing facilitate the reader’s identification with the heroes of intervention, whether they be the “international community”, the Security Council, NATO or the United States military. The international lawyer who identifies with those heroes comes to form her or his sense of self at least partly around that identification. That pleasurable process allows the lawyer to imagine herself or himself to be on the side of the good and the just, part of a State or international community actively able to shape the world in the image of the ideals of freedom, democracy and order.
This Part explores the ways in which the subjectivity or sense of self of international lawyers is shaped through legal education, through engagement with popular representations of international intervention and through cultures of imperialism. My treatment of the way in which international lawyers are produced draws on Michel Foucault’s conception of “technologies of the self”.[63] Foucault’s conception of the self is an overtly political one. Rather than positing the existence of an essential or true self, Foucault conceives of the self as a “strategic possibility” or process.[64] The self does not exist as a pre-given entity outside of politics, but rather as an effect of power relations. In particular, Foucault sees subjectivity, including the belief in a true self, as a central aspect of the way in which individuals are governed or made docile in liberal societies.
Of particular interest to feminists and cultural theorists is Foucault’s work on the ways in which, in their private lives, individuals are made subject to forms of political power that operate in liberal societies.[65] Foucault suggests that a new technique of power “applies itself to immediate everyday life which categorises the individual, marks him by his own individuality, attaches to him his own identity, imposes a law of truth on him which he must recognize and which others have to recognize in him”.[66] That form of power makes individuals “subjects”, tied to their own identity “by a conscience or self-knowledge”.[67] Individuals are asked to recognise themselves as having an essential self, a self that is recognised by others, which constitutes the “truth” of that individual.[68] Thus, for example, an individual may be asked to recognise herself as Western, or civilised, or professional, or objective, and such categories function as forms of social and personal regulation.[69] The notion of the self as a process and as an effect of power relations informs my account in this article of the making of international lawyers.
Perhaps most obviously, the self-image of international lawyers is produced in and by the legal education process. Legal education is a site where certain kinds of selves are produced, and international law has a unique place within that process. Traditional forms of Australian, English and American legal education teach law students that law is a body of knowledge and rules that is separate and distinct from politics or morality. Such “positivist” approaches to law have been widely criticised, indeed some argue discredited, yet the notion that the law exists as a discrete phenomenon that can be separated from policy considerations or context is still the founding assumption of much legal education.[70] Conservative teachers of traditional law subjects premise their teaching upon the assumption that “law” can be understood as a self-referential body of rules, distinct from “policy” considerations, a term used by lawyers to describe that which is not “law”.[71] Even progressive subjects focus on “law” in “context”, as if the two existed as discreet spheres of action.[72] The effect of such teaching practices is to institutionalise a lack of ethical sense amongst lawyers. Positivism leads to a pedagogy of irresponsibility, in which one’s own professional behaviour is in no way implicated in broader social questions.
Those processes are central to the sense of self of international lawyers. Although international law is traditionally understood as less easily separable from “politics”,[73] nevertheless international lawyers do not understand their own practices as political, in the sense of involving an exercise of power. As a result, while the impact of politics on the formation of law cannot be ignored by international lawyers, who more readily admit that international law serves the interests of the statist status quo and the superpowers who dominate it, international lawyers can ignore the political nature of their own work practices. It is very rare for international lawyers to investigate the ways in which their reproduction or retelling of stories about the world contributes to making that representation of the world seem real or natural. There is real resistance to considering the ways in which the narratives that found the discipline serve to produce exotic identities of “others”, and to secure the identities of “selves”. Missing from much international legal scholarship is a recognition of the need for a form of political engagement that fosters change in the local, everyday lives of lawyers, law students and law teachers, rather than only in the lives of those others about whom international lawyers produce knowledge.
Rather than explore the centrality of international law to past and present processes of imperialism, exploitation, domination, recolonisation and elite identity formation, international law students and teachers idealise international law as a subject devoted to world order, humanitarianism, human dignity, peace and security.[74] International law’s favourite narratives are premised upon an image of the international community as the heroic agent of progress, security, order, human rights and democracy.[75] As those who succeed in the discipline of international law are called upon to speak, write, perform and embody such heroic narratives, their subjectivity is shaped by that process. International lawyers come to understand themselves as the embodiment of heroic internationalism, and of the values and myths that underlie international law. The role imagined for international law and international lawyers is premised upon an idealism about the capacity to do good through international law.[76] Working as an international lawyer, perhaps for the United Nations, offers the opportunity for public service, humanitarianism or involvement in issues of historical significance. Matthew Alder, for example, reflects:
I took my first international law class as an undergraduate in 1979, at the last full blooming of the Cold War, just before the Soviet invasion of Afghanistan. My notions of precisely what international law was were not dissimilar from those of the students I now interview; I had some idealistic idea that international law would both prescribe a moral set of rules for the World to abide by, and, not incidentally, let me travel often. I was half right (on the travel side).[77]
The nature of the idealism described by international lawyers involves the desire to be good, to be active and to be leaders. This is the idealism of people who imagine themselves as performing good deeds to save others, in the public sphere of institutions and non-governmental organisations, in jobs with some degree of visibility and status, as leaders or professionals rather than as activists.[78] It is perhaps that process of romanticisation of the place of international law which creates such resistance to investigating its role in reproducing dispossession or exploitation, and to consideration of the power relations responsible for the creation of the status and privilege of international lawyers. Hilary Charlesworth argues that the image that many international lawyers hold of themselves as humane may make it difficult for them to accept criticisms of the effects or history of international law.[79]
International lawyers often see themselves as outsiders, crusaders of principle, of unfashionable virtue, and they have generally found it hard to accept that their tools and concepts may be open to challenge on the basis that they create another class of outsiders …[80]
Legal education also systematically produces an identification with a particular version of masculinity. While such a criticism can be made of many forms of professional training, where young female and male students are convinced of the utility or desirability of identifying with or as senior men, it is particularly true of law.[81] The “subject” of law is an aggressive, capitalist, heterosexual, white man.[82] Law not only serves the interests of that embodied subject, but invites identification with that subject position. Lawyers read and write stories, indeed live and act out stories, that constitute that subject as normal. Behaviours attributed to that subject are imagined as “human nature”.[83]
The discrediting of the voices or position of those other than powerful or elite groups is shaped through a process of legal education in which “hard” or compulsory subjects are concerned with those facets of law that further the aspirations of economic man, such as contract law, criminal law, corporate law or property law.[84] Such subjects are treated within law schools as “rigorous” and “practical”, and as based upon a form of reasoning or system of self-referential rules that is peculiar to law.[85] The study of areas of law that are more clearly concerned with the interests of less-privileged groups, such as feminist legal theory, welfare law or indigenous peoples and the law, is dismissed as a “soft” option.[86] The policing of hard and soft options operates to produce a privileged form of subjectivity, that of the rational, property-owning, contracting, heterosexual, economic man, and to invite identification with that subject. Against that subject position are posed those who are not constructed as capable of producing rational knowledge about the law: women, Aborigines, working-class people. Students are taught the practice of “classifying law in terms which are professed to have universal application, and then again in terms of people who are different from the universal subject”.[87] The claim of lawyers to have “unique knowledge about the nature and meaning” of law means that law students are coerced into “conformity and hierarchy”, while other forms of knowledge about law “originating elsewhere in the social order” are made to seem foolish.[88] Law curricula leave little space for subjects which question the way in which law operates to produce and privilege particular subjectivities.
The possibility that viewed from a position other than that of social privilege the authoritative manipulation of doctrines may appear not to be part of the working through of a special form of rationality, but instead to be one more instance of oppression, is not given much space in the hard, compulsory, areas of legal education.[89]
Indeed, the space that did exist for such subjects is rapidly closing, as law schools rationalise their curricula in order to attract more students and funding from law firms.[90] Solicitors, barristers and judges police law studies, requiring that law schools “produce competent technicians” by focusing on teaching legal doctrine or skills relevant to a particular understanding of the practice of law.[91] Any concern with issues such as poverty or suffering is thus systematically challenged.[92] In such a context, “the reality made by law and lawyers can thus begin to look even more real, especially to the people making it”.[93] Such processes shape the subjectivity and identification of lawyers, including those who become international lawyers.
In this sense, legal education is political, an exercise or reproduction of power relations.[94] Law students quickly come to believe that the world is naturally ordered in a particular way.[95] Of course, legal training is not the only, or even necessarily the most important, place where people are invited to identify with a particular white, masculine subject position. Nevertheless, the implications of that process are important for critical legal practice, including international legal practice. Identification with other positions created in law’s narratives, such as workers, criminals, peasants, indigenous peoples or terrorists, is often rigidly policed and framed.
The tension between “hard” and “soft” subjects that structures legal education serves to give international law a romanticised place within the legal curricula.[96] By studying international law, students imagine the possibility of being at once powerful and humanitarian, pragmatic and idealistic, hard and soft. In an account of the dreams of students who come to study international law at Harvard Law School, David Kennedy captures the nature of the fantasy that international law can reconcile the twinned desire for status and public service.[97] At Harvard, he suggests, “young lawyers from peripheral capitals” seeking “to make a bid for the cosmopolis” meet “hundreds of middle-class Americans in the process of professionalization, struggling with hopes for fulfilment, class advancement, assimilation to the establishment, practical skills, and savvy reflections”.[98] International law offers these students the hope that they might “transcend the details of national practice for the broad generalities and courtesies of international affairs; their own capitals too provincial, the role of the metropolitan civil servant too banal”.[99] International law becomes “an arena of desire and fantasy”.[100] Kennedy’s role as an American international law lecturer in this “trajectory of self-development” is “to open a cosmopolitan everyday in what might otherwise be a tiresome imperialism”.[101]
Finally, students of international law are disciplined by the sense that, as international lawyers, they will be involved in an “invisible college” of lawyers that “extends into the sphere of government”.[102] The role of both government and non-government international lawyers is to gather and analyse information about international needs and pressures, construct new normative and regulatory schemes to respond to such needs and to participate in legislative and judicial law-making.[103] The fact that the “teachings of the most highly qualified publicists” of international law are listed in Article 38 of the Statute of the International Court of Justice as “subsidiary means for determination of the rules of law”,[104] has meant that academic international lawyers have seen their role as producing books that can be used as the basis for judicial decisions and State practice.[105] Little space is left for teaching and writing about international law in ways that ask different questions about law and international relations as objects of knowledge.
The subjectivity of international lawyers in States like Australia or the United States is also shaped by cultures of imperialism. Those who imagine themselves as inhabiting the role of representative of the “West” or the “international community” in bringing human rights and democracy to a local in need of saving, are as much a product of the history of colonialism as they are a product of legal disciplining. The promises of international lawyers in the post-Cold War era are the same promises as those made by benevolent colonial missionaries and government functionaries during the era of classical imperialism. The constitution of a professional self as neutral, as a leader who represents nothing but freedom and order, is an understanding of the self that is necessary for those who cannot afford to think about the history or consequences of their actions.
The stories told and read by international lawyers about the collective security crisis facing “the world” today draw upon the pleasures offered both by broader cultural representations, and by other, older and terribly familiar stories. Newspaper reports, television news and films are sites of the production of knowledge about the conditions which make intervention desirable, where dominant stories about cultural identity and myths about heroic destiny are formed.[106] International legal texts mirror or reproduce stories told in other cultural sites, and are rich in metaphoric language which leads the reader to make links between global security and other powerful stories. While representations in novels, plays, operas, academic scholarship and newspapers have always been vital to the business of empire, the importance of such representations today is magnified by the dominance of television and newspapers as the source of “information” about the world.[107]
Today, as in the late-nineteenth century, imperial subjects experience many of the pleasures of imperialism, perhaps the most insidious being “a self-forgetting delight in the use of power — the power to observe, rule, hold, and profit from distant territories and people”.[108] As with classical imperialist culture, arguments in favour of intervention are combined with an “intellectual blotting out of what ‘we’ do in the process” of intervening in the interests of humanity.[109] Imperialist culture invited Europeans to share in stories about their redemption and salvation through the civilising mission. Non-Europeans were represented as unable to govern themselves. As Edward Said notes, “the lasting social meaning imparted to the fact of color (and hence of race) by philosophers like John Locke and David Hume, made it axiomatic by the middle of the nineteenth century that Europeans ought always to rule non-Europeans”.[110] Imperialism and colonialism were impelled by the ideology that “certain territories and people require and beseech domination”.[111] The production of knowledge about the inability of the “other” to govern themselves “allowed decent men and women to accept the notion that distant territories and their native peoples should be subjugated”, for their own good.[112] The acceptance of “the idea of having an empire” made empire possible.[113] Despite the focus on salvation and redemption, the “civilising mission” was never in fact conducted benevolently, but “was always accompanied by domination”.[114]
In the narratives produced in colonial or imperial contexts, the reader or writer is invited to identify with a white, male hero.[115] That imperialist hero is associated with attributes including freedom, creativity, authority, civilisation, power, democracy, sovereignty and wealth. The world of the colonies, or of developing States in the post-Second World War context, is a space in which the white man is imagined as having an enormous freedom to act and to create ideal worlds. The subjectivity of the reader or writer is constructed in opposition to a second character in the narrative, the object of the imperial gaze: the black, native or colonised subject. The black subject is a resource that allows the white man to imagine himself as civilised and free against a background of savagery and slavery.[116] As Frantz Fanon argues, “not only must the black man be black; he must be black in relation to the white man”.[117] The creation of that second character is thus essential, both to the constitution of the white character, and to the process by which identification with that character is invited.
The plot of the narrative of colonialism derives from imagining the colonised subject as “a reformed, recognizable Other, as a subject of a difference that is almost the same, but not quite”.[118] The hero’s journey is about the civilisation, rescue, progress or development of that colonised subject. Intervention by white men is justified in order first to civilise the natives of subject colonies, and later, in the era of decolonisation, to assist the development of those former colonies. The notion of progress continues to provide the imaginative framework for intervention stories in the era of decolonisation. The plot of such narratives, however, always ensures that the black subject is never truly able to claim the full subjectivity or agency reserved for the heroic character.[119] As Homi Bhabha notes in the context of debates about governing India, “to be Anglicized is emphatically not to be English”.[120] The aim is not to make further heroes, of equal status to the hero. Rather, the colonial narrative involves creating new colonised subjects in the image of the white subject, who reflect his desires and ambitions but do not quite achieve them. In these stories, the rescued or civilised subjects therefore remain dependent upon their saviour.
Justifications for military and monetary intervention draw strongly upon these stories of those who cannot govern themselves, who remain dependent and beseech domination.[121] For the international lawyers whose opinions influence domestic and foreign policy, such representations shape the sense of their role, both domestically and internationally, as legitimate and benevolent. Such benevolence may well be preferable to the ruthless policies of the militaries and militias who terrorise civilian populations in places like East Timor, yet “the rhetoric of power all too easily produces an illusion of benevolence when deployed in an imperial setting.”[122] For those of us who live in European settler cultures or in metropolitan imperial centres, imperialist pleasures and illusions are dangerously ready to hand. Too often, the appeal to “humanitarianism” operates to provide an alibi for the presence and involvement of members of the international community interested in exploiting and controlling resources and people.
The sense of freedom and entitlement to intervene is based on, and depends upon, structures of coercion and colonialism. Those structures are generally rendered invisible in the intervention debate. By arguing that any lawyers or theorists who question intervention are “cultural relativists” whose position “rewards tyrants” and “betrays the very purposes of the international order”,[123] attention is systematically diverted from those intervening (except to the extent that their defenders argue that we should focus on their intentions, which are good, rather than the consequences of their acts, which are far less important than their feelings). The gaze is always, in other words, upon those who need saving. If we begin to focus instead on the saviours, rather than those who supposedly need saving, we can see that the desires and experiences of the saviours are structured by colonial power relations. The desire to be charitable in such a context is one that shores up power relations.
Part II looked at the ways in which international lawyers come to embody internationalism. In this Part, I consider the effect that embodying and performing international law’s foundational narratives has on international lawyers. What happens to those lawyers once they have learned, as Threadgold puts it, “to embody, to perform, and to enact on a daily basis” the discourses, myths and narratives of intervention?[124] What uses does the narrative of intervention have for international lawyers, as the people who come to embody it so intimately? Images of crisis and stories about redemption provide ways to resolve other kinds of crises that may exist for the people writing these fictions. In particular, the telling of such stories of crisis and redemption serves to resolve certain kinds of anxieties facing those writing the stories.
Intervention stories preserve a particular self-image for international lawyers in the face of wide-ranging attacks on “Western” identity. As I have argued, law’s stories about intervention create a role for international lawyers as pragmatic, apolitical, civilised, humane and cosmopolitan professionals, whose work is central to the march of human history and to achieving the goals of dignity, world peace, human rights, development, universal democracy and civilisation. The assumption that such a role is available for representatives of the international community is threatened on many fronts. The most immediate are threats to the old order of international law, posed by those who seek to critique law’s assumptions and to take it in new directions. Such criticisms come from those who have been the objects of imperialism and of military interventions, and increasingly from scholars within the discipline, and point to the central role international law played in imperialism and now recolonisation, the failure of international lawyers to take account of that violent history, and the raced and gendered assumptions upon which international law is based.
Intervention stories serve to allay anxieties produced by such challenges to the traditional priorities and ordering practices of international law. Those stories reassure lawyers that there is no time to waste on dealing with theoretical irrelevancies, when their profession is engaged in more important life and death matters. The demonstration of the centrality of the discipline in solving major crises serves to delegitimise attempts to question disciplinary assumptions and priorities. Thus Fernando Tesón can argue that the “formalism” of those who question the ethics of collective military intervention “betrays the purposes of the very international order that they claim to protect”,[125] while Thomas Weiss can respond to critics of the selectivity of United Nations intervention by asking: “in light of genocide, misery, and massive human rights abuses in war zones around the world, should Pontius Pilate be the model for both the American and the international response?”[126] Such arguments reassure writers and readers that the old mission of international law is still central to achieving a shared global future. Their rhetoric renders it unnecessary to respond to the arguments of feminists, Third World scholars, postcolonial theorists and critical theorists, whose work is largely ignored in the flood of articles and books celebrating democratisation, the end of history, the triumph of liberal institutionalism and the place of law in solving security and humanitarian crises.
Challenges to the disciplinary authority of international law are part of a broader challenge to the claims of modernist knowledge. Where such knowledge offered “a sense of certainty as to one’s place in a symbolic network”,[127] those challenges can be experienced as destabilising. The continued need to announce the superiority of “Western”, and now “international”, values of human rights and freedom can also be read as a response to attacks on the effects of “Western” or “international” interventions in the name of such values. These attacks have come not only from those in former colonies who now experience a repeat of the colonial desire to secure and protect the property of foreigners in those States, but from those subjects of industrialised States who have not benefited from industrialisation.[128] The sense of threat such challenges pose to the identities of international lawyers is expressed in articles about feminist and progressive approaches to law, and resolved, inter alia, in intervention stories. Where once international lawyers were a self-referential elite who could be counted upon to hold the same values and have attended the same schools, the post-Cold War international lawyer cannot be counted upon to see herself or himself as engaged in the project of preserving security and world order, while determining what is in the interests of the vulnerable.
The marginalisation of critical approaches to international law, and thus the avoidance of any ethical reflection on law’s role in facilitating imperialism and exploitation, is evident in those legal texts which engage with feminist and progressive scholars. Such texts give a useful insight into the threat experienced by those who perceive themselves as representing the old school of international law when faced with scholars asking a different set of questions about internationalism. Masculinist responses to feminist work on international law seek to control, characterise and order particular feminist approaches, and to reassert the orderliness and priorities of international law.[129] Anthony D’Amato, for example, responds to the threat posed by feminist international legal theory in a review of a book of essays entitled Human Rights of Women: National and International Perspectives.[130] In his review, D’Amato reasserts the order and structure of international law, thus reproducing a vision of an ideal law with which he identifies. Rather than engaging with the ideas and arguments of feminists, D’Amato asserts that the role of law is to “compensate women” for their weakness and vulnerability, particularly during child-bearing years, thus contributing to the creation of an “advanced civilisation”.[131] D’Amato argues that such a civilisation is marked by its distance from one in which we behave “like animals”.[132] In the animal world, according to D’Amato, bullying behaviour is the norm: “on the whole, animals decide questions of life and death on the basis of physical power and brute force”, and “if an animal is weak, lame or infirm, other animals of its own species may kill or abandon it”.[133] Having reassured himself that “on average”, women are in fact in this weaker position and thus likely to be murdered or abandoned, D’Amato argues that international law should aim to bring all cultures close to those of “highly industrialized countries”, where in recent times women have made great progress in resisting institutionalised bullying.[134] As women are weak and likely targets for violence, the role of international law and international lawyers is to protect them.
According to D’Amato, feminists should commit themselves to this task, rather than seeking to dismantle the system set up to save women from the laws of the jungle. He is particularly scathing of those feminist scholars who go beyond a traditional critique of the content of international law by “accusing international law itself for having an andocentric nature that privileges a male view of world society”.[135] He challenges that approach on the grounds that it is like “criticizing a house for having oppressively straight walls that meet each other at 90-degree angles and unnaturally level floors that do not tilt, and then blaming the end product on the fact that the T square was set at 90 degrees instead of 80, the saw was not warped, and the nails were excessively straight”.[136] The comparison of international law to an orderly, systematic and efficient “end product” of a building project reassures D’Amato and his audience that feminist criticisms are no threat to international law’s rationality, civilising mission and contribution to world order. If feminists want to “use law to transform an oppressive society”, they would be better off “taking law as it is, with all its rationality, objectivity and abstraction”.
If you want an unusual house and are dissatisfied with existing models, you are better off using traditional tools rather than eccentric ones, because the latter are less likely to produce the house that you want — the resulting house may well be skewed, but in a quite different way from what you had in mind.[137]
Unruly lawyers who seek to question or challenge the role of international law are constituted as marginal in order to contain the threats they pose. A good example is provided by the nature of Ian Brownlie’s attack on lawyers who propose new human rights, such as the right to peace. Brownlie argues that international lawyers should not develop proposals for change, nor purport to adopt radical interpretations of what the law is, without first engaging in “the real pioneering” work of diplomacy and persuasion, that is, of engaging with governments.[138] Brownlie argues that “[i]nternational law is about the real policies and commitments of governments, it is not about the incantations of secular or religious morality”.[139] Only those with the ear of governments are able to take part in that process of “pioneering”. Brownlie makes clear his disdain for the type of lawyers whose “enthusiastic legal literature” has a tendency to “develop as an isolated genre, with the select few repetitiously citing one another and the same materials, completely outside the main stream of diplomacy and international law”.[140] Brownlie makes clear his own position as part of the mainstream, noting that “the launching of new normative candidates by anyone who can find an audience” results in “appalling abstract” documents in the provisions of which “those of us who are engaged in the practical solution of problems relating to group rights can find no assistance”.[141] The “single-minded” enthusiasts engaged in such exercises fail to respect the “quality and coherence of international law as a whole”.[142] Brownlie’s passage operates to draw boundaries between those professionals on the inside, who have influence with governments, acting as the guardians of “international law as a whole” and engaged in the practical work of problem-solving, and those on the outside, who fail to respect the quality and coherence of the body of international legal knowledge, and engage in self-indulgent conversations at the margins.
In these examples, law as tradition, right and reason is redeemed. The “characterization of feminist work in international law as eccentric, emotional and irrational”, the attempt to oppose good liberal feminism and bad radical feminism, the representation of women as “weak and vulnerable” and the drawing of boundaries between pragmatic professionals and those “outside the mainstream of diplomacy and international law”, are all attempts to shore up an image of “traditional” international law as reasonable, rational, and objective, and its male practitioners as strong and heroic.[143] According to Cynthia Weber, such attempted “mastery” of those who appear to threaten the discipline is necessary for those in the “authorial position”, that is, the “body which views, writes about, and disciplines its object of analysis from an empowered subject position”.[144] For those who understand themselves as occupying that authorial position, a threat to the core of a discipline “is equivalent to a threat to the [authorial] subject position” from which such authorities see and describe their field.[145] In the discipline of international law, intervention stories offer those threatened authorities the reassertion of their legitimate role in bringing values of order, democracy and human rights to a chaotic, ungovernable and poverty-stricken world of failed States and fundamentalists. As such, intervention stories perhaps do more than any other narrative to secure the identity of international lawyers in an uncertain post-modern era.
Intervention stories can be read as a response to broader threats to the identity of international lawyers and others who identify as “Westerners”. Intervention narratives represent the current period in world history as one of unity challenged by fragmentation, of ordered and stable sovereign States challenged by pre- or post-modern fragmentation.[146] Such stories are premised upon nostalgia for the Cold War era of stable, sovereign States, predictable patterns of Cold War brinkmanship and secure borders. The Cold War constituted the identities of those who identified with the United States and its allies during that period. The passing of the Soviet Union represents the end of an era of Cold War certainties and the identity that those certainties provided.[147]
A sense of anxiety has paradoxically been produced by the absence of an identifiable enemy in the post-Cold War era.[148] Far from marking the end of Cold War paranoia, the break up of the former Soviet Union has led commentators to ask whether the “West” can survive without enemies.[149] The Cold War provided a comforting ordering of the world into allies and foes. While that division was of use to military and civilian strategists, offering a “mental map” or “cognitive system for dividing the world into friends and enemies, shaping a response to overseas crises, and providing a rationale for periodic military intervention abroad”,[150] it can also be seen as having served a far more personal and intimate function. The division of the world into friends and enemies served more fundamentally to secure the identities in whose name the Cold War operated.[151] The identities of those who understood themselves as allies of the United States were secured by narratives of danger, difference, otherness and freedom.[152] The enormous sense of hostility that citizens of democratic States were encouraged to feel towards supposedly violent, brainwashed, irrational or ideologically driven communists allowed for the comforting fantasy that the sacrifice of those people would remove such traits from the world.
David Campbell argues that the Cold War enmity towards communism and the Soviet Union in the West reproduced “the structural and the narrative qualities of danger” that had been developed about different enemies, and thus functioned to reinscribe “multiple boundaries between the ‘civilised’ and the ‘barbaric’, the ‘normal’ and the ‘pathological’”.[153] If the Cold War is read as a struggle over the production and security of identity, then “while the objects of established post-1945 strategies of otherness may no longer be plausible candidates for enmity, their transformation has not by itself altered the entailments of identity which they satisfied”.[154] In other words, the end of the Cold War has created a vacuum in the dominant narratives of otherness and danger. The rise of a paranoid form of politics, including anxiety about the New World Order, can be seen as a response to the absence of a defined enemy.[155] As Eric Santner points out:
[That paranoia] emerges at precisely the moment when one would expect an easing of paranoid anxieties about dangers emanating from the ‘evil empire’ and its satellites … Nostalgia for the more ordered world of cold war anxieties would appear to be a nostalgia for a paranoia in which the persecutor had a more or less recognizable face and a clear geographical location.[156]
Collective security discourse operates as a response to this desire for enemies. Intervention narratives allow the reinscription of boundaries between “civilised” and “barbaric”, creating new “others”. Those narratives create a plot which resembles that of the Cold War. Corrupt elites, ruthless “Third World” tyrants, dictators, terrorists, rogue States and religious fundamentalists are the new threats to the free world, now reconstructed as the “international community”. Images of a world in crisis serve to announce the legitimacy of the need to sacrifice and subjugate racialised others. Such stories, with their creation of heroes and villains, allow a new way of recreating the belief that we are ordered, Enlightenment subjects, and only our enemies have the capacity for violence, evil or abuses of power. The constant reference to the crisis facing the world in the post-Soviet era, and the new disorder and anarchy that this era has supposedly ushered in, is used to justify the use of extreme violence against those understood as representing the evils of chaos or corruption.
Intervention narratives, with their glorification of the role of international lawyers, help to secure the identities of those who believed they were on the side of freedom during the Cold War era. The identity produced by such narratives is dependent upon the valorisation of a violent managerial masculinity through the sacrifice of racialised enemies. That process can be seen clearly in the representations of the Gulf War.[157] Michael Rogin argues, for example, that the “Reagan Era’s main contribution to American imperial representation” was the spectacle of “state-supported American heroes in violent, racial combat”.[158] Political spectacle such as the televising of the Gulf War functions to display, and at the same time repress, a series of myths that are at the foundation of Americanised culture, and yet which the culture can no longer overtly embrace. Those myths include the organisation of politics around “racial domination”, “redemption through violence”, the “belief in individual agency” and “identification with the state, to which is transferred the freedom to act without being held to account”.[159] Such myths operate to support the identity of the coherent, rational male, integrated by, and into, a “managerial structure of violence”.[160]
Post-Cold War spectacles of intervention serve to reclaim and reproduce a particular version of masculinity: one which was under threat in the aftermath of the Vietnam war, when it seemed that many young men in countries like the United States and Australia might indeed have found a way of being in the world that did not depend upon sacrificing “their race and gender others”.[161] The Gulf War functioned to restore the sense of identity of those men who felt under siege in the post-Vietnam climate.[162] The spectacle of the war was tightly controlled, particularly through gendered codes. In the United States, women peace activists were demonised as having betrayed “our boys” in Vietnam, and Vietnam veterans, particularly those “missing in action”, were recast as the victims of the Vietnam war.[163] The Gulf War effectively shut down the public space for articulating reasons to reject increased militarism and warfare.
Violent international intervention operates as a means of preserving “the fiction of a center”, that centre being at once the all-powerful State or liberal alliance, and at the personal level, a particular construction of violent, white masculinity. In a world where there is “massive suffering and individual helplessness”, the audience for and creators of such spectacles are invited to identify with an all-powerful actor and to imagine having personal control through violence.[164] That audience is, however, encouraged to forget that, as with the Gulf War, “the history of American heroism in war has mainly pitted white men against militarily weaker and racially stigmatized foes”.[165] The kind of amnesia which operates in texts about the humanitarianism of intervention allows international lawyers to identify with an all-powerful force for good, while forgetting the context in which that sense of heroism is produced.
The white hero is remembered; the context that produced him is buried … In the American myth we remember, men alone risk their lives in equal combat. In the one we forget, white men show how tough they are by resubordinating and sacrificing their race and gender others.[166]
Intervention texts can be read as a response to the anxieties produced by the ending of the Cold War. That order was secured during the Cold War through the repeated sacrifice of those imagined as “other” to the “self” of the liberal alliance. Through intervention narratives, a collective identity is formed against enemies or aggressors. Fantasies of militaristic humanitarianism secure the identity of those who imagine themselves as part of the international community.
Humanitarian and security-based justifications for intervention function to mediate between the more exploitative interests of those intervening in the new world order, and the targets of intervention. Lawyers arguing in favour of increased intervention serve to make the current globalisation process palatable.[167] Intervention stories reproduce a model of charity, in which images of impoverished, victimised people serve to provide an alibi for the involvement of powerful States in Africa, Asia, South America, the Caribbean and Eastern Europe. According to the narratives of the new interventionism, the international community intervenes militarily and monetarily, with the best intentions, to help people who are less fortunate than those in industrialised States. In contrast, I have argued elsewhere that the governance and political arrangements furthered by military and monetary interventions serve principally to protect the interests of a small group, which includes foreign investors, elites within target States and those in industrialised States who depend upon the current economic order to sustain their lifestyles.[168] The idea of charity is an extremely problematic one in a context where the wealth and standard of living of the charitable is created by the exploitation of those imagined as needing charity.[169] It is not clear that either military or monetary intervention as conducted in the post-Cold War era have promoted the human rights, democratic or security interests of most human beings.[170]
In such a context, the discourse of security can be read as a discourse of justification or legitimation, serving to quell anxieties about the morality of a militaristic, capitalist version of pax Americana. The effect of intervention stories based on the model of charity is to create a sense of a shared dependency between interveners and those who are the targets of intervention. That sense of interdependence serves to mask the increase in inequality on a global scale, and the transfer of wealth from “developing” States to industrialised States, facilitated in large part by the activities of international institutions.[171] The story of intervention is stripped of all political struggle and history, thus reassuring its audience that there are really no consequences of colonialism or militarism to be faced. The Security Council is present in Africa or Eastern Europe or the Caribbean as a representative of progress, democracy, humanitarianism and freedom, not as a representative of former colonial powers who face the threat of expulsion for good. That presence creates a myth of universalism, in which former colonisers can exist outside history.
Such depoliticised intervention stories allow international lawyers to believe that, lessons of history to the contrary, elites in States like Australia, the United States, the United Kingdom or France can be good and humane on a global scale. To remember the history of imperialism and colonialism leaves very little room for such elites to imagine themselves as humane world leaders. The post-Cold War context makes such a self-image particularly difficult. It is perhaps the desire to be humane and heroic leaders that creates pressure to write only the kind of “inspirational prose” that leaves elites feeling that they are part of a force for good, without having to make any changes to their lives or ways of being. The desire to be good is channelled into the “leadership complex” and a belief in the ethical hero who exists outside history. Gayatri Spivak argues:
[I]n the United States, the worst thing is the leadership complex. We want to help. And of course if you take this away then there is rage and anguish. But you work at it by saying ‘how about trying to undermine the exploitation in however small a way?’.[172]
In the post-Cold War era, international lawyers are able to imagine military invasion and economic restructuring and to see that translated into action. Many lawyers still celebrate the globalisation of human rights or the triumph of liberal democracy without considering what the new muscular humanitarianism means either at home or abroad. Intervention narratives allow lawyers to imagine themselves as having the freedom to act in the world without restraint, while the humanitarian bases for intervention make it unnecessary to take responsibility for the destructive consequences and effects of such actions.
Intervention stories allow lawyers to feel that the threats of violence and the destructive power being used by States or international organisations or foreign capital are “extensions of the self, rather than threats to it”.[173] Technocratic international lawyers see themselves as professional, technocratic, dutiful advisers to powerful entities. As such, the role imagined for international lawyers in relation to States and international organisations resembles the role imagined for economists in relation to capital, the role imagined for defence intellectuals in relation to weapons, and the role imagined for priests in relation to deities. That sense of a closeness to power allows international lawyers to imagine themselves as sharing in the power of omnipotent entities, such as States or international organisations, or processes, such as globalisation. Carol Cohn has analysed the appeal of that imagined relationship to power in her work on the way in which United States defence intellectuals understand themselves and the world.[174] Cohn suggests that the language spoken by those intellectuals, and the relationship to power it allows them to imagine themselves adopting, creates a feeling of security.
I suspect that much of the reduced anxiety about nuclear war commonly experienced by new speakers of the language and long-time experts come from characteristics of the language itself: the distance afforded by its abstraction; the sense of control afforded by mastering it; and the fact that its content and concerns are that of the users rather than the victims of nuclear weapons. In learning the language, one goes from being the passive, powerless victim to the competent, wily, powerful purveyor of nuclear threats and nuclear explosive power.[175]
At the same time, by representing themselves as “handmaidens” to those with power, rather than in fact exercising power themselves, international lawyers are able to maintain a respectable distance from the excesses and destructive activities attributed to powerful States, to international markets or to economic globalisation. Like the prophets of a vengeful God, international lawyers gain an aura of power through their ability to translate or interpret the desires and aims of powerful entities, without having to take responsibility for the way that the knowledge they produce about such entities creates a particular image of the world and makes it seem real.
I have argued that international lawyers benefit in complicated ways from their disciplinary status as the performers, embodiers and writers of the narratives of intervention. Traditional lawyers use such intervention narratives as a source of continued identity, status, authority, legitimacy and control. Such narratives can be understood as a disciplining response to the sense of anxiety produced in the elite men and women of international law by the challenges of the post-Cold War era. Intervention stories are an attempt to avoid recognising the “optional nature of the certainty [law] is founded upon”,[176] in order to avoid doubting in turn other things about which international lawyers want to remain sure — the certainty of “Western” identity, of subjectivity, of hierarchy, of gender, of otherness and of superiority.
Clearly, international lawyers are faced with challenges from many quarters, alleging their discipline’s involvement in legitimising and normalising the processes of exploitation and domination. Yet rather than respond to those challenges as dangerous threats, they can be welcomed as offering the possibility of opening international law up to critique and of encouraging international lawyers to engage in interdisciplinary work and conversations. In fact, the uncertainties posed by the Cold War have led to a blossoming of theoretical work in international law and international relations, exploring the ways in which the discourses of international law and foreign policy function to create identities and boundaries between self and other. As Anthony Carty notes:
[T]heory can be expected to mushroom in a discipline when uncertainty increases concerning the appropriate agenda for the discipline. Radical changes such as ... the disappearance of the Cold War are bound to affect the frameworks of analysis which the discipline has developed.[177]
Those seeking to develop critical and ethical approaches to internationalism can welcome the post-Cold War gift of uncertainty. Such opportunities will be missed if lawyers instead too readily succumb to the temptations of an ahistorical celebratory post-Cold War narrative, according to which the liberal alliance will finally be free to guarantee peace, security, order, justice, human rights and democracy to a world of victims in need of rescuing through violent intervention.
[*] Senior Lecturer, Faculty of Law, University of Melbourne. I thank my PhD supervisor, Hilary Charlesworth, for her comments on earlier drafts of this paper.
[1] JB White, Justice As Translation: An Essay in Cultural and Legal Criticism (1990) at ix.
[2] See, for example, MJ Glennon, “The new interventionism: the search for a just international law” (1999) 278 Foreign Affairs 2; FR Tesón, “International obligation and the theory of hypothetical consent” (1990) 15 Yale Journal of International Law 84; FR Tesón, “Collective humanitarian intervention” (1996) 17 Michigan Journal of International Law 323.
[3] See, for example, C Bellamy, Knights in White Armour: The New Art of War and Peace (1997); T Farer, “A paradigm of legitimate intervention” in L Fisler Damrosch (ed), Enforcing Restraint: Collective Intervention in Internal Conflicts (1993) 316; TJ Farer, “Intervention in unnatural humanitarian emergencies: lessons of the first phase” (1996) 18 Human Rights Quarterly 1; MR Hutchinson, “Restoring hope: UN Security Council resolutions for Somalia and an expanded doctrine of humanitarian intervention” (1993) 34 Harvard International Law Journal 624; L Minear and P Guillot, Soldiers to the Rescue: Humanitarian Lessons from Rwanda (1996); WM Reisman, “Some lessons from Iraq: international law and democratic politics” (1991) 16 Yale Journal of International Law 203; TG Weiss, “On the brink of a new era? humanitarian interventions, 1991-94” in DCF Daniel and BC Hayes (eds), Beyond Traditional Peacekeeping (1995) 3.
[4] See, for example, The World Bank, Governance and Development (1992); The World Bank, World Development Report 1997: The State in a Changing World (1997).
[5] See, for example, R Falk, “The Haiti intervention: a dangerous new world order precedent for the United Nations” (1995) 36 Harvard International Law Journal 341; JG Gardam, “Legal restraints on Security Council military enforcement action” (1996) 17 Michigan Journal of International Law 285; M Koskenniemi, “The police in the temple. order, justice and the United Nations: a dialectical view” (1995) 6 European Journal of International Law 325.
[6] M Foucault, The Archaeology of Knowledge (1972) 209.
[7] For a more detailed development of this argument, see A Orford, “Muscular humanitarianism: reading the narratives of the new interventionism” (1999) European Journal of International Law (forthcoming).
[8] For a useful rethinking of the “author-function”, see M Foucault, “What is an author?” in DF Bouchard (ed), Language, Counter-Memory, Practice: Selected Essays and Interviews by Michel Foucault (trans. DF Bouchard and S Simon) (1977) 113.
[9] On the political nature of the constitution of lawyers as “professionals”, see D Weisbrot, Australian Lawyers (1990).
[10] My treatment of the way in which international lawyers are produced draws on M Foucault’s conception of “technologies of the self”: LH Martin, H Gutman and PH Hutton (eds), Technologies of the Self: A Seminar with Michel Foucault (1988). See further the discussion in Part III below.
[11] T Threadgold, “Everyday life in the academy: postmodernist feminisms, generic seductions, rewriting and being heard” in C Luke (ed), Feminisms and Pedagogies of Everyday Life (1996) 280 at 281.
[12] Ibid.
[13] T Threadgold, “Critical theory, feminisms, the judiciary and rape” (1993) 1 Australian Feminist Law Journal 7.
[14] JE Grbich, “The body in legal theory” in M Albertson Fineman and N Sweet Thomadsen (eds), At the Boundaries of Law: Feminism and Legal Theory (1991) 61 at 69.
[15] Examples of those who have explored these issues with reference to their own experience include J Gallop, Thinking Through the Body (1988); D Halperin, Saint Foucault (1995); T Moi, Simone de Beauvoir: The Making of an Intellectual Woman (1994); PJ Williams, The Alchemy of Race and Rights (1993).
[16] JE Grbich, n 14 above, at 61.
[17] Ibid. at 9.
[18] T Threadgold, n 11 above.
[19] For a broader example of a description of international law as a problem-solving process, see R Higgins, Problems and Process: International Law and How We Use It (1994) at vi (“the acceptance of international law as process leads to certain preferred solutions so far as ... great unresolved problems are concerned”).
[20] L Minear and P Guillot, n 3 above, at 161.
[21] S Jeffords, “The patriot system, or managerial heroism” in A Kaplan and DE Pease (eds), Cultures of United States Imperialism (1993) 535.
[22] Ibid. at 536.
[23] Ibid. at 545.
[24] Ibid. at 548.
[25] Ibid. at 549.
[26] Ibid. at 548.
[27] Ibid.
[28] Ibid.
[29] Ibid. at 550.
[30] Ibid. at 550-1.
[31] For a discussion of the range of workers in militarised countries who are dependent on military spending for their livelihoods, see C Enloe, The Morning After: Sexual Politics at the End of the Cold War (1993) at 38-70.
[32] M Koskenniemi, “The place of law in collective security” (1996) 17 Michigan Journal of International Law 455 at 473-4, 476.
[33] Ibid. at 489.
[34] Ibid.
[35] Ibid. at 490.
[36] Ibid. at 479.
[37] Ibid. at 478. For arguments that the actions undertaken by forces authorised by the United Nations in Iraq breached international humanitarian law, see JG Gardam, “Proportionality and force in international law” (1993) 87 American Journal of International Law 391; J Gardam, “Women and international humanitarian law” in W Maley (ed), Shelters from the Storm: Developments in International Humanitarian Law (1995) 205; Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties and Violations of the Law of War (1991); R Normand and C af Jochnick, “The legitimation of violence: a critical analysis of the Gulf War” (1994) 35 Harvard International Law Journal 387.
[38] See generally C Bellamy, n 3 above.
[39] D Kennedy, “Spring break” (1985) 63 Texas Law Review 1377; D Kennedy, “Autumn weekends: an essay on law and everyday life” in A Sarat and TR Kearns (eds), Law in Everyday Life (1993) 191. The impact of Kennedy’s work in that area is greater than would appear from a survey of written responses or references to those articles. While the questions about the self-constitution of international human rights lawyers raised by those two articles on human rights activism have generated much discussion and debate amongst international lawyers informally, little has been written in response to those articles. The few written responses that have appeared tend to treat those articles as examples of narcissism rather than critical self-reflexion. See, for example, DZ Cass, “Navigating the newstream: recent critical scholarship in international law” (1996) 65 Nordic Journal of International Law 341 at 368.
[40] D Kennedy, n 39 above, (1993) at 195.
[41] Ibid.
[42] Ibid.
[43] Ibid. at 203.
[44] Ibid. at 197.
[45] This argument is made in A Orford, “Locating the international: military and monetary interventions after the Cold War” (1997) 38 Harvard International Law Journal 443. See also P Alston, “The myopia of the handmaidens: international lawyers and globalization” (1997) 8 European Journal of International Law 435.
[46] For a reflection on the relationship of international lawyers and governments, see O Schachter, “The invisible college of international lawyers” (1977) 72 Northwestern University Law Review 217.
[47] See, for example, the comments by O Schachter, SM Schwebel, TM Franck and SK Chopra, “In memoriam: Judge Manfred Lachs (1914-1993)” (1993) 87 American Journal of International Law 414; SM Schwebel, “Hersch Lauterpacht: fragments for a portrait” (1997) 2 European Journal of International Law 305.
[48] For example, in writing about the need for international lawyers to support a collective security system that privileges the interests of powerful States, WM Reisman, “The constitutional crisis in the United Nations” (1993) 87 American Journal of International Law 83 at 97, can argue that “[s]ecurity in the final analysis, is not a verbal exercise but the exercise of power in defence of public order. Without power, security is a word. The design of a realistic international security system cannot ignore how power is actually distributed”.
[49] M Koskenniemi, n 32 above, at 489-490.
[50] TG Weiss, n 3 above, at 8.
[51] Ibid. at 8, 15.
[52] FR Tesón, n 2 above, (1996) at 342.
[53] Ibid.
[55] Ibid. at 357.
[56] A Cassese, “Ex iniuria ius oritur: are we moving towards international legitimation of forcible humanitarian countermeasures in the world community?” (1999) 10 European Journal of International Law 23 at 25.
[57] S Tharoor, “The changing face of peace-keeping and peace-enforcement” (1995) 19 Fordham International Law Journal 408 at 413.
[58] TG Weiss, n 3 above, at 8.
[59] D Kennedy, n 39 above, (1985).
[60] Ibid. at 1402-5.
[61] Ibid. at 1404-5.
[62] Ibid. at 1402-5.
[63] LH Martin, H Gutman and PH Hutton (eds), n 10 above.
[64] D Halperin, n 15 above, at 76.
[65] M Foucault, “Afterword: the subject and power” in HL Dreyfus and P Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics (2nd ed, 1983) 208 at 213. Foucault’s studies of governmentality and the relation between the State or social identity and the individual have a slightly different focus. Foucault there analyses the “political technology” of individuals, or the ways in which individuals are led to recognise themselves as a part of a social entity, such as a nation or a State. His focus is on the techniques or practices of government which give rise to particular subjects, forms of rationality and relations between the society and the individual. See M Foucault, “The political technology of individuals” in LH Martin, H Gutman and PH Hutton (eds), n 10 above, at 145, 146, 153.
[66] M Foucault, ibid. (1983) at 212.
[67] Ibid.
[68] D Halperin, n 15 above, at 95.
[69] Ibid. at 19.
[70] Leading proponents of “positivism”, such as HLA Hart, have been influential in shaping generations of students of law. For an exposition of Hart’s view of positivism, see the essays in HLA Hart, Essays in Jurisprudence and Philosophy, (1983). Despite its continued place in legal education, positivism has been the subject of sustained critique over decades by scholars associated with traditions such as Natural Law or Legal Realism, arguing that the distinction between law, morality and politics is not sustainable. For the suggestion that legal positivism is “on the decline as an intellectually respectable approach to law and adjudication”, see TD Campbell, “Democracy, human rights, and positive law” [1994] SydLawRw 16; (1994) 16 Sydney Law Review 195 at 196.
[71] An analysis of the political nature of the drawing of boundaries between the inside and outside of law is made well by M Davies, Asking the Law Question (1994).
[72] See, for example, S Bottomley, N Gunningham and S Parker, Law in Context (revised ed, 1994) at Foreword, iii. That book is based upon a first-year course taught at The Australian National University, which introduces the study of “law in its political, social and economic context”. For particularly insightful critiques of such approaches to law, see I Duncanson, “Legal education and the possibility of critique: an Australian perspective” (1993) 8 Canadian Journal of Law and Society 59 at 69-70; A Rhodes-Little, “Review essay: who do we think ‘we’ are?” (1997) 8 Australian Feminist Law Journal 149, at 149-50.
[73] See, for example, O Schachter, n 46 above, at 218, 220, 224. Schachter, like most international lawyers, accepts that international law is not free from politics, understood as the politics of States, especially in areas like peace and security. However, Schachter believes in the capacity of lawyers to be objective and independent: while even “independent scholars will often appear to be reaching their conclusions on the basis of their preferences for a particular outcome rather than by the objective application of accepted principles”, somehow the “impression of relativism can be counteracted” through “reasoned application of competing principles, including those expressing fundamental values, validated by evidence of practice and consensus in international society” (ibid. at 220). Schachter also maintains a distinction between law and “matters of a non-legal character — political, economic, technical and so on” (ibid. at 224).
[74] Surprisingly little is written about the role of international law in legitimising and enabling imperialism and recolonisation. For examples of analyses that do take that approach to international law, see J Thuo Gathii, “International law and eurocentricity: a review essay” (1998) 9 European Journal of International Law 184; A Anghie, “Francisco de Vitoria and the colonial origins of international law” (1996) 5 Social and Legal Studies 321; A Anghie, “‘The heart of my home’: colonialism, environmental damage, and the Nauru case” (1993) 34 Harvard International Law Journal 445; C Raghavan, Recolonization: GATT, the Uruguay Round and the Third World (1990).
[75] See further the discussion in A Orford, n 7 above.
[76] The idealistic image of international law matches to an extent the utopian approach to the utility of international law identified by M Koskenniemi. See M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989).
[77] MH Adler, “International law’s contribution to security in the post-Cold War era: from functional to political and beyond” (1996) 19 Fordham International Law Journal 1955.
[78] The self-constitution of international lawyers as something other than activists is explored in D Kennedy, n 39 above, (1993) at 197 (“[f]or the activists, I might be law to their politics … I constituted the group against my identity as a lawyer, a generalist, an internationalist, above all, someone who legitimately didn’t know much about what was to go on”).
[79] H Charlesworth, “Feminist critiques of international law and their critics” (1994-5) Third World Legal Studies 1.
[80] Ibid.
[81] M Thornton, “Discord in the legal academy: the case of the feminist scholar” (1994) 3 Australian Feminist Law Journal 53.
[82] Ibid. at 55 (defining “benchmark men” in anti-discrimination law as “Anglo-Celtic, heterosexual, able-bodied, middle class, and who tend to espouse middle-of-the-road political and religious beliefs”); N Naffine and RJ Owens (eds), Sexing the Subject of Law (1997). For arguments that the bounded, impermeable, unified, Western sovereign State is represented as the masculine subject of international law, while the sovereign body of less powerful States is represented as permeable and thus female, see A Orford, “The uses of sovereignty in the new imperial order” (1996) 6 Australian Feminist Law Journal 63, at 75-81.
[83] A Rhodes-Little, n 72 above.
[84] M Thornton, “Portia lost in the groves of academe wondering what to do about legal education” (1991) 9 Law in Context 12.
[85] I Duncanson, “Broadening the discipline of law” [1994] MelbULawRw 26; (1994) 19 Melbourne University Law Review 1075, at 1081.
[86] Ibid.
[87] Ibid.
[88] Ibid. Duncanson compares the process to “the Anglophone determination to shout at ‘foreigners’ in English instead of learning their language. It is an aggressive and authoritarian practice, serving to accomplish, through the silencing of the other, the hegemonic position of the speaker”.
[89] Ibid. at 1082.
[90] A Rhodes-Little, n 72 above, at 151.
[91] I Duncanson, n 85 above, at 1078. Duncanson notes that, while “much is made of the need to produce competent technicians … this may be a coded way of speaking of people with the correct attitude toward official explanations of the world. Non-academic lawyers often want both to scrutinise the content of academic law courses in the name of relevance to their own professional preoccupations and simultaneously to tell their new recruits to forget their university training because it is irrelevant”. See also I Duncanson, n 72 above, at 80 (arguing that the bureaucratic managerialism and anti-intellectualism dominating higher education policy in Australia results in “a publicly reiterated philosophy of education that disguises a mistrust of nonconformity as a concern for ‘relevance’”).
[92] I Duncanson, n 85 above, at 1081.
[93] A Rhodes-Little, n 72 above, at 151.
[94] D Kennedy, “Legal education and the reproduction of hierarchy” (1982) 32 Journal of Legal Education 591.
[95] I Duncanson, n 85 above; A Rhodes-Little, n 72 above.
[96] For an exploration of the tendency to romanticism in the teaching of international law, see G Simpson, “On the magic mountain: teaching public international law” (1999) 10 European Journal of International Law 70.
[97] D Kennedy, n 39 above, (1993).
[98] Ibid. at 230.
[99] Ibid. at 231.
[100] Ibid.
[101] Ibid. at 232.
[102] O Schachter, n 46 above.
[103] Ibid. at 224-5.
[104] Article 38(1), Statute of the International Court of Justice, 26 June 1945, (1978) Year Book of the United Nations 1052.
[105] Anthony Carty argues that Article 38, and what it represents, has influenced the lack of theoretical debate in international law in England. See A Carty, “Why theory? — the implications for international law teaching” in P Allott, A Carty, M Koskenniemi and C Warbrick, Theory and International Law: An Introduction (1991) 75.
[106] S Jeffords, n 21 above, at 535; L Boose, “Techno-muscularity and the ‘boy eternal’: from the quagmire to the Gulf” in A Kaplan and DE Pease (eds), n 21 above, at 581; PJ Williams, The Rooster’s Egg: On the Persistence of Prejudice (1995).
[107] On the relationship between imperialism and cultural practices, see generally EW Said, Culture and Imperialism (1993); T Morrison, Playing in the Dark: Whiteness and the Literary Imagination (1992); K Ross, Fast Cars, Clean Bodies: Decolonization and the Reordering of French Culture (1996); A McClintock, Imperial Leather: Race, Gender and Sexuality in the Colonial Contest (1995); A Kaplan and DE Pease (eds), n 21 above.
[108] EW Said, n 107 above, at 158.
[109] Ibid. at 348.
[110] EW Said, The Question of Palestine (1992) 75.
[111] EW Said, n 107 above, at 8.
[112] Ibid. at 10.
[113] Ibid.
[114] Ibid. at 158-9.
[115] T Morrison, n 107 above, at 38.
[116] Ibid. at 44.
[117] F Fanon, Black Skin, White Masks (1967), at 110.
[118] H Bhabha, The Location of Culture (1994), at 86.
[119] Ibid. 90.
[120] Ibid. at 85-92.
[121] PJ Williams, n 106 above, at 204-8.
[122] EW Said, n 107 above, at xix.
[123] FR Tesón, n 2 above, (1996) at 323, 342.
[124] T Threadgold, n 11 above.
[125] FR Tesón, n 2 above, (1996) at 342.
[126] TG Weiss, n 3 above, at 15.
[127] EL Santner, My Own Private Germany: Daniel Paul Schreber’s Secret History of Modernity (1996) at 8.
[128] Many people are sensitive to attempts to engage in recolonisation due to their “memory of past imperialisms”. As EW Said, n 107 above, at 348, argues, “[t]here are far too many politicized people on earth today for any nation readily to accept the finality of America’s historical mission to lead the world”.
[129] H Charlesworth, “Cries and whispers: responses to feminist scholarship in international law” (1996) 65 Nordic Journal of International Law 557.
[130] A D’Amato, “Book review: R Cook (ed), Human Rights of Women: National and International Perspectives” (1995) 89 American Journal of International Law 840.
[131] Ibid. at 840-1. According to D’Amato, it is “a fact of nature that women are on the average physically weaker than men. Moreover, they pay the physical price for perpetuating the human species; during their child-bearing and child-nurturing years they are especially weak and vulnerable”.
[132] Ibid. at 840. D’Amato appears not to recognise that “we” are animals.
[133] Ibid. For an excellent analysis of the way in which such stories about animals and nature are produced in order to legitimate certain social hierarchies or methods of ordering, see D Haraway, Primate Visions: Gender, Race and Nature in the World of Modern Science (1989).
[134] As H Charlesworth, n 129 above, at 563, argues, by drawing a distinction between “highly industrialized” and “patriarchal” States, D’Amato attempts “to quarantine more generally the problem of women’s oppression to a few hot countries”.
[135] A D’Amato, n 130 above, at 843.
[136] Ibid. at 843.
[137] Ibid.
[138] I Brownlie, “The rights of peoples in modern international law” in J Crawford (ed), The Rights of Peoples (1992) 1 at 14.
[139] Ibid. at 15.
[140] Ibid. at 14.
[141] Ibid. at 12.
[142] Ibid. at 15.
[143] H Charlesworth, n 129 above, at 563-6.
[144] C Weber, “Good girls, little girls, and bad girls: male paranoia in Robert Keohane’s critique of feminist international relations” (1994) 23 Millennium 337. Cynthia Weber has explored the similar emergence of male paranoia as a response to feminist critical analyses within the discipline of international relations. Weber argues that male scholars respond to the paranoia engendered by feminist engagement with international relations by attempting to control and contain that threat, reasserting disciplinary boundaries and seeking to discredit those aspects of feminist and critical theory that cannot be contained. Weber argues that Robert Keohane’s critique of feminist international relations produces two bodies: “the feminist body of literature which is the text’s object of analysis and Keohane’s authorial body which views, writes about, and disciplines its object of analysis from an empowered subject position”.
[145] Ibid. at 347-8.
[146] See the discussion of representations of that threatened disorder in A Orford, “The politics of collective security” (1996) 17 Michigan Journal of International Law 399.
[147] DE Pease, “Hiroshima, the Vietnam veterans war memorial, and the Gulf War: post-national spectacles” in A Kaplan and DE Pease (eds), n 21 above, 557 (discussing the constitution of United States identity during the Cold War).
[148] M Klare, Rogue States and Nuclear Outlaws: America’s Search for a New Foreign Policy (1994); TM Franck, “United Nations prospects for a new global order” (1989-90) 22 New York University Journal of International Law and Politics 601.
[149] JJ Mearsheimer, “Why we will soon miss the Cold War” in P Williams, DM Goldstein and JM Shafritz (eds), Classic Readings of International Relations (1994) 477; CW Maynes, “America without the Cold War” (1990) 78 Foreign Policy 3.
[150] M Klare, n 148 above, 4.
[151] D Campbell, Writing Security: United States Foreign Policy and the Politics of Identity (1992) 5.
[152] Ibid. at 5.
[153] Ibid. at 195.
[154] Ibid.
[155] EL Santner, n 127 above, at xiii.
[156] Ibid.
[157] See L Boose, n 106 above; S Jeffords, n 21 above.
[158] M Rogin, “‘Make my day!’: spectacle as amnesia in imperial politics [and] the sequel” in A Kaplan and DE Pease (eds), n 21 above, 499 at 508.
[159] Ibid.
[160] Ibid. at 525.
[161] Ibid. at 505.
[163] Ibid.
[164] M Rogin, n 158 above, at 509.
[165] Ibid. at 527.
[166] Ibid. at 505.
[167] I Duncanson, “‘Close your eyes and think of England’: stories about law and constitutional change in Australia” (1996) 3 Canberra Law Review 123 (arguing that stories about human rights and constitutional change make globalisation palatable in the way that stories about “civilising centralisation and constitutionalism” operated to legitimise changing economic relations during the early modern period in England). For examples of those advocating an abandonment of sovereignty to enable greater intervention, see FR Tesón, n 2 above, (1996); MR Hutchinson, n 3 above; TM Franck, “The emerging right to democratic governance” (1992) 86 American Journal of International Law 46.
[168] See further A Orford, n 45 above.
[169] KJ Guest, “Exploitation under erasure: economic, social and cultural rights engage economic globalisation” [1997] AdelLawRw 6; (1997) 19 Adelaide Law Review 73.
[170] See further A Orford, n 45 above.
[171] The notion of charity also creates a sense that those in States subjected to intervention should be grateful to their rescuers. On the tyranny of demands for gratitude in such circumstances, see T Morrison, “Introduction: Friday on the Potomac” in T Morrison (ed), Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality (1992) vii.
[172] G Chakravorty Spivak, “Culture alive” (1995) 5 Australian Feminist Law Journal 3 at 6. See also the discussion in G Chakravorty Spivak and D Plotke, “A dialogue on democracy” in D Trend (ed), Radical Democracy: Identity, Citizenship, and the State (1996) 209 at 214.
[173] C Cohn, “Sex and death in the rational world of defense intellectuals” (1987) 12 Signs 687 at 707.
[174] Ibid. At 687-8, Cohn defines “defense intellectuals” as “civilians who move in and out of government, working sometimes as administrative officials or consultants, sometimes at universities and think tanks. They formulate what they call ‘rational’ systems for dealing with the problems created by nuclear weapons”.
[175] Ibid. at 707.
[176] I Duncanson, n 72 above, at 64-5.
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