Provocations for a Material International Law

Dr. Jessie Hohmann Senior Lecturer in Law, Queen Mary University of London; ISRF EarlyCareer Fellow 2017-18

International law is generally defined as the set of rules which are agreed upon by sovereign states, and which bind them in their relations with each other. It binds ‘the state’, which often appears as a closed entity, with a unitary intention, will and authority that can be clearly located and known. Making this international law is often presented as the preserve of statesmen (rarely women) and a supporting cast of technocrats who work busily behind the scenes, dotting the i’s and crossing the t’s on overly complex and wordy treaties, while, front of house, world leaders shake hands under elaborate diplomatic protocols, smiling - or stern and strong as occasion dictates - for the cameras. It appears to ‘happen’ far away and high above the lives of ordinary individuals, to be remote, abstract, and untouchable. Yet it has long been clear that international law is deeply implicated in, and has striking effects on, the lives of ordinary individuals, as this famous cartoon of European leaders ‘carving up Africa’ at the 1885 Berlin Conference suggests.

European powers carve up Africa at the Berlin Conference of 1885.

Source zz1y, Journal L’Illustration, (cc licence)

Many international lawyers (including those very technocrats mentioned above, as well as those working in international legal practice and in academic institutions as scholars) are deeply committed to international law’s relevance and success. However, international law has traditionally been considered in terms of its normative and regulatory frameworks; its topic areas, subjects and politics. For international lawyers, the interpretation of rules, the intention of states, and issues of enforcement and effectiveness have been dominant. These have often been approached in highly abstract ways, in a technical language, and through practice and scholarship that revolves around the production and interpretation of text.

In recent years, however, international law scholars, myself among them, have begun to turn their attention to international law’s materiality, and to question how international law is inserted into and experienced in everyday life: how do international legal regimes and rules structure subjectivity, sexuality, the home, food production, or movement within and across borders? 2 This work can be seen as a part of a broader ‘material turn’ in the humanities and social sciences. But what provokes this turn for international lawyers, and why at this moment?

In positing a social history for the ‘science’ of international law, 3 I will suggest here that we can identify a number of factors – phenomena playing out across the globe today – that can be argued to underlie the turn to materiality, objects and the everyday life of international law, and which point to the pressing need to consider international law as a material practice and project. Here, I will point to three factors:

A Response to Abstraction

First, the turn to materiality and the everyday is a response to the abstraction of international law, and to the experience of it as remote and unaccountable to everyday individuals, even while it impacts on them heavily, affecting the availability of jobs, pay and working conditions, mobility, access to food and medicine. Recent world events – notably the election of Donald Trump to the US presidency, and the UK’s vote to leave the European Union (‘Brexit’) - testify to the experience of international law as both invasive and unwanted.

Trump has portrayed international law as detrimental to the US national interest and pledged to withdraw from a number of international agreements and organisations, including on climate change, trade, and human rights, in order to ‘put America first.’ The unusual prominence of international law in the 2016 presidential race prompted the highprofile American Society of International Law to dedicate a series of ten one-hour video discussions by former senior government officials, on the implications of US policy decisions for ‘a range of vital international legal issues.’ 4 This initiative signals first, the threat that Trump is seen to represent to international law and its established order (and establishment). It is, also, second, a form of presentation that at least gestures towards a need for popular engagement, if remaining ultimately oriented to elites.

The ‘Brexit’ campaign, too, played on powerful themes of ‘taking back control’ from an unaccountable and technocratic European Union, and of hardening borders to resist the insertion of international law into ordinary people’s lives. Brexit and the election of Donald Trump have forced international lawyers to consider the deep animosity to international law and its perceived unaccountability, and to bring ourselves back down to the material level where it is experienced.

Deflating the ‘Distended’ Human

We need, wrote experimental Marxist novelist Sergei Tret’iakov, a ‘cold shower’ for our narrative pretentions, which place a ‘distended’ human hero at the centre of all action, blotting out the roles of objects, things and other processes. 5 Many proponents of the material turn in the humanities and social sciences have stood under this frosty deluge.

The material turn is motivated at least in part by a growing recognition that a view of the world that focuses too heavily on the human as the cardinal subject and agent is first, incomplete and partial, and second, has sanctioned human dominance and destruction of other entities, including the planet.

The idea of the human as an active subject, exercising agency over a passive realm of objects, is increasingly recognised as a product of Western, post-enlightenment thinking: it is a worldview, not a truth. And, under careful analysis, the binary categories of object/subject, nature/culture, mind/matter on which it rests cannot be sustained. 6 This should not come as a surprise to lawyers, including international lawyers, for we are in the business of granting and denying subjectivity. The classical ‘object’ theory of international law, which casts a long shadow over the discipline, holds that the state is the only subject, while human beings are mere objects, occupying similar positions to beasts, ships, or territory. 7 Might law recognise natural objects as subjects? Recent (national) initiatives to grant legal personhood to rivers, mountains and other natural objects might be initial steps in this regard. On the other hand, human beings have only recently gained international subjectivity and direct protection of their rights, partly through international human rights law, and this protection remains tenuous and fragile. For this reason many international lawyers might resist efforts to break down categories between non-human object and human subject. 8 At the very least, however, the material turn, with its recognition of the entanglements and intra-actions between all entities, should prompt us to consider the relationship between legal and ontological categories of object and subject, and ask how law participates in their construction and maintenance, but can also be used to challenge and resist them.

The Yamuna River at Agra, India was given legal rights akin to a person by a lower court, before the Indian Supreme Court reversed the ruling. Harming the river would have been akin to harming a person, and the legal initiative was aimed explicitly at protecting the highly polluted river from further contamination.

Photo by Author, 2007.

These steps are also significant because international law has served as a handmaiden to human desires to exploit and dominate the objects of the world, which have been posited as simply there for the taking. This is evidenced in international law’s imperial history, which relied on doctrines that erased whole peoples so that dominant powers could exploit them and their lands, in its foundations in the protection of private investors’ property rights, and in its efforts – notably in trade regimes such as the WTO - to purify itself of social, environmental and political concerns. 9 The global challenges of climate change, and our reliance on toxic products and processes of production, prompt a rethinking of these suppositions and modus operandi for international law.

The Digital Turn

Another provocation for a material international law lies in the increasing digitalisation of the world. Vast amounts of data and information exist, but they appear as intangible, disembodied even ghostly. On the one hand, digitisation offers access to new materials. Vast archives and repositories of scholarly and historic materials, government documents (whether leaked or authorised) and images, are available at the tap of a few keys, or the swipe of a finger. These materials are open in ways that dusty archives and Old World libraries can never be, but something is lost, too. Many materials are no longer available to be touched, held or viewed ‘in the flesh’. We lose the opportunity to smell, feel or hear these materials, and our experience of them is poorer and thinner, as a result. 10

The first page of Western Treaty No 8 (1899) is available freely as a digital document from the Library and Archives Canada website, making it widely accessible. But it is available only as a digital document: we cannot experience it as a material document ‘in the flesh’.

Source: Library and Archives Canada

New information materials and technologies offer new opportunities for international legal regulation and governance. For instance, biometric data promises states and international organisations control over migration and refugee flows. 11 But such technologies and dematerialisation are also threatening. How will the old laws of war regulate cyber-attack? International law is profoundly territorial, but ‘where’ is data such that it can be regulated by this territorially-bound law? These are pressing questions, but they also point to a deeper and more profound issue, and one that must be addressed. The de-materialising of the world around us also prompts us to consider what ‘the real’ is, what objects, things and materiality are, how the real is constituted or denied in or by law, and how the answers will impact on how we experience and know the world around us.