Monash University Publishing: Advancing knowledge

Who’s Afraid of International Law?

Launch speech by Hilary Charlesworth, Melbourne Law School, at Readings, Launch 11 April 2017

It is a great pleasure to launch this book, whose relevance is acute this week in the wake of President Trump’s bombing of the Syrian airbase. The book developed out of a series of lectures organised by Rai Gaita in 2011, under the same title.

Let me note here the significance of Rai Gaita’s Wednesday Lectures series, which he has masterminded since 2001. They have covered topics such as reconciliation, the invasion of Iraq, terrorism and our relationship to nature. At their heart, as Rai notes, is an examination of ‘the ethical complexity of politics’. The lectures have been designed as an invitation to investigate where our ethical beliefs come from; a conversational space (in Rai’s words) where it was possible to speak of the dignity of politics without that seeming like an oxymoron. They have made a distinctive contribution to Melbourne’s intellectual life.

Not all the lecture series have made it into print and it is wonderful to welcome this collection, with its rich introductions (one by each editor – going far beyond neat summaries) and seven substantive chapters covering many areas of international law, from the rule of law, to the ICC to climate change.

How does this book contribute to understanding the role of the ethical in international law? And what is gained by riffing on the title of Edward Albee’s 1962 play, Who’s Afraid of Virginia Woolf, which in turn drew on the Disney song in the Three Little Pigs, Who’s afraid of the big bad wolf? These titles have been understood as asking who is afraid of living life without false illusions. What role does fear play in our actions?

The chapters offer abundant answers to such a question. They illustrate how international law involves a ‘certain way of talking and being’ and one that is capable of having both progressive and regressive effects.  In other words, the authors rattle the assumptions of many in the field that international law is inherently a good thing, while at the same time avoiding the rather arid popular commentary that international law is too idealistic and mainly irrelevant in international politics.

We are offered accounts of international law as a language of many registers: it can justify the actions of the powerful; it can express grand aspirations of world peace; and it can be used to resist unjust political orders.

International lawyers like to observe the ‘fragmentation’ of international law: the growth in norms and fields within international law that are often in tension with one another (think of the tension between ideas of state sovereignty and the demands of responding to climate change, or refugee flows). And national approaches to international law will differ greatly: Chinese understandings are likely to be quite different to those proposed by the European Union.

Gerry Simpson’s introduction identifies four voices in which international law speaks: apologetic (justifying the actions of the great powers); anti-hegemonic (holding the great powers n check); aspirational (articulating claims such as sustainable development and human rights, or preventing impunity for international crimes); and finally critique (understanding that international law can close off progressive politics). These are illustrated nicely in each of the chapters.

Gerry and Rai’s chapters bookend the collection. They represent two distinctive voices in dialogue, the critical lawyer and the more optimistic philosopher. What is it about Gerry and numbers? Last week he was speaking about 13 ways to understand the Cold War; here he identifies and elucidates three different types of fear about international law; and then three categories of people who might be afraid of international law. He shines a light on the complacency of international lawyers and wonders whether the discipline has ‘turned a generation of young radicals away from working against poverty … or local political reform? Is international law simply a politics expunged of politics?’ (18)

Rai’s final chapter tackles the question of the universality of international criminal law and the idea of a common humanity. Against a view of international law enshrining abstract universal values, common to all cultures, he suggests that we should see international law less as a set of rules written in Esperanto and more like a world literature – which is experienced in quite distinctive ways and languages.

In between …. We have Sundhya Pahuja’s chapter which unpicks the language of development and argues that international law makes it difficult to think about inequality in the international economic order. She focuses on international law as a language of authorisation.

From his vantage point as both an insider and outsider, Tim McCormack shows us how fear of international law affected the drafting of the Statute of the International Criminal Court, and also its operation. He chronicles, for example, the fears of the US, and also Israel, about particular aspects of the Court’s jurisdiction. Overall, Tim is optimistic that better and more systematic application of the law can deliver a more just world.

The politics and law of the Climate Treaty negotiations at Copenhagen in 2009 are skilfully unravelled by Robyn Eckersley. On her analysis, a central fear of negotiating states was not of a treaty in itself, but of ambitious and binding emission reduction targets and timetables. Robyn responds nicely to the crude IR realists who dismiss international law as of no value, describing the lengths states will go to to shape treaty rules. But she also shows that international law allowed major issues to be deferred for later resolution.

Catriona Drew’s chapter examines the way that history and international law intersect in the Israeli-Palestinian conflict. She shows how international law was deeply implicated in the dispersal of the Palestinian people in 1948. But in the end she is not fearful about the discipline and concludes with an optimism about the use of international law to challenge Israeli settlements.

Martin Krygier investigates the field of rule of law promotion; although not explicitly through the lens of fear. He makes the important point that we should get law into perspective ‘not as the always-necessary centre-piece of power-tempering policy to which other measures are inferior … but as one implement among several’. This approach perhaps quietens both hopes and fears of international law.
So, all in all, this book is an encyclopaedia of fears – all shapes and sizes, and ones I had never thought of before. It offers a great range of styles and topics and is a model of a noisy, argumentative, unresolved conversation.

The historian, Greg Dening, once said that you don’t launch a book, rather you open it; I borrow this point from Frank Brennan SJ. I am delighted to declare this book open!

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