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'Whatever Happens on Earth Stays on Earth': Some Other Discourses and the 2017 Chorley Lecture

Understanding the significance of 2017 for the world and its politics and laws -- domestic and international alike -- will take some time. In contributing to that discourse, jurists should look to new conversations in different places; mass movements, history and artistic expression.

Martin Clark

1. CHORLEY

On a Wednesday evening in June last year, Judge James Crawford began his Chorley Lecture with distress and a ‘dialogue of the deaf’. 2017 was a year of antagonistic uses of international law — or, worse, discussions that loudly and triumphantly ignored or derided it. These conversations, for some, seemed to pose a challenge and threat to the post-1945 international legal order.

In the published version, Crawford takes up a geological frame. International law has a sedimentary, layered structure. At the core lies the solidified principles and ideas that make up the ‘necessary’ law of nations (in Emer de Vattel’s language): that states are sovereign and independent, that they are equal, that treaty obligations must be observed, and so on. The more recent layers are the voluntary law of nations: specific treaty arrangements that might be modified or withdrawn from.

The utterances of major powers have diverged markedly around this divide. A 2016 joint Russian–Chinese statement took up one vision of the ‘core’. It reiterated and endorsed ‘win-win cooperation’: a shared community, the equality of states, non-intervention and the peaceful settlement of disputes. In 2017, the Trump Administration saw the core quite differently. Crawford’s example was the first major foreign policy vision jointly penned by H R McMaster and Gary Cohn — the national security and national economic advisor, respectively — of what they dubbed a ‘clear-eyed outlook’. In this statement, there is no such thing as a global community. There is only ‘an arena where nations, nongovernmental actors and businesses engage and compete for advantage … Rather than deny this elemental nature of international affairs, we embrace it’ (at 3). The core is not law or cooperation or even discourse, but — literally — an arena of competition.

As Crawford points out, this ignores the obvious truth that sovereigns often share aims and need the significant cooperation of other sovereigns to achieve them. Crawford’s own vision is the post-1945 American-led ‘cooperative, rules based one’ of the liberal international legal order. He acknowledges that some have called it an illusory plan. Nonetheless, it is the plan that he says has survived and functioned through the decades as ‘a sort of genetic program’ for that order’s completion after the end of the Cold War (at 4). Despite its flaws and the ‘silly moves’ everyone knows too well, Crawford insists it is not an illusory or trivial plan (at 5).

Central to this order are multilateral treaties, which form the framework of cooperation. The major political discussions today are about withdrawals from some of these frameworks. Crawford examines three of these in detail. First, South Africa’s attempted withdrawal from the Rome Statute, blocked by its Supreme Court. Second, the UK’s decision to leave the European Union, which the Supreme Court in Miller held could not be done by the executive’s prerogative power. Finally, the rather unclear US announcement that it would withdraw from the Paris Agreement, officially submitted in August 2017 to be completed by 2020.

His ultimate message is that international law’s layered, sedimentary centre still holds solid today. It has weathered worse crises. While its recent top layers are at some risk of erosion, the system remains flexible and able to accommodate dissent or disengagement. What the present situation demands is that international lawyers combine ‘faith and action’. We ought to remain wary of the rhetoric of scepticism, the possible retreat to nativism and unilateralism, and — as always — vigilant and ready to defend international law’s communitarian values against that future.

2. OFFICES

For an address on political discourse, Crawford spends little time thinking in the terms of either ‘discourse’ or ‘politics’. The word ‘discourse’ only appears twice in the text, and ‘politics’ a handful more times. What we can see as ‘political discourse’ in substance are the broad-brush and conflicting announcements of international law’s nature and purpose and its relation to the world. Much of the article is focused on the more technical legal analysis of the law of treaty withdrawal and judicial — rather than political — pronouncements of that law’s interaction with the constitutional orders of South Africa and the UK. Political discourse is the focus in examining the US withdrawal announcement — albeit taking the narrow form of just the official contributions to that discussion. Crawford quotes and easily dismantles the arguments contained in a press release stating the President’s views of the justifications and wisdom of withdrawal. This is a neat demonstration of how, as positions apparently on the meaning of legal terms and obligations, these statements are — probably worse than weak, specious or wrong — just functionally illiterate. The distress signal that begins the lecture and the call to action that ends it are lightly rousing: defend the faith, or at least, just relax a little. To rephrase Crawford’s central point by twisting his use of Matthew Arnold’s Dover Beach, today’s armies of ignorance might be sweeping around, confusing and alarming in their nativist or ‘anti-globalist’ struggles — but it is only the topsoil of international law that might get mussed up: they do not pose much threat to the solid bedrock.

This might sound like a lukewarm evaluation. But I want to stress that the lecture is probably as bold — at least around its topic, framing, and edges — as it can be. As a sitting judge of the International Court of Justice, Crawford is — rightly — heavily constrained by the propriety of office. Anything ‘political’ within or between states might well end up for the Court’s consideration in some shape or form one day. Words must be chosen carefully. Here, Crawford walks up to the line of judicial propriety but does not cross it.

Office is the reason why judicial addresses, by either domestic or international judges are often fairly dull. They are usually about arcane histories precisely because those stories have no clear relation to the world of today, still less its political discourse, except maybe for the overly-learned few in the audience. There are plenty of things that no judge should publicly talk about, let alone give a speech on. Except, that is, when the political discourse is so dire that the discharge of that office allows — or even demands — that judges do and say things that would otherwise be best left to others.

Had it been delivered in February 2015, when Crawford took his place on the ICJ bench and candidate Trump was just a terrifying possibility, this lecture could have been about any number of seemingly anodyne but important doctrinal discussions, a few coded nods about political questions here, a sprinkling of references to the South China Sea, the Iranian nuclear deal, Syria, Libya, or whatever else, there. Today, though, it would seem almost inappropriate, a failure to fulfil the office of Judge of the International Court of Justice, to not talk — and talk directly — about international law, the world, and what to do. That is what we heard and read. And despite his insistence that things are largely fine, and that the solid rock will not crack today or tomorrow, that Crawford should even feel the need to make that argument shows the state that international law and the world is in. We are all thinking that a fissure or an earthquake is entirely possible.

This brings us to the office of international lawyer. What is the purpose of international lawyers? One view, articulated in measured tones in Crawford’s speech, is that they defend things and calm distress through the legal restraint of power. This language of faith and action has long roots in one story of international lawyers as the descendants of theologians and religious jurists: as activists, humanitarians, interveners, and speakers of truth to power; as embodiments of internationalism; as the discerners of the workings of the divine justice through the nations of the world; and as custodians, caretakers, prophets or augurs of the world’s legal ordering and its futures. This language can of course become a bit strange. And while Crawford does not indulge in it, there is unmistakably a call to some kind of action in the face of current discourse.

One response to this inclination (see here and here) is to sound a note of caution about faith. The suggestion is not so much that international lawyers should not have some faith, or do some good works, or defend something, but that they should take care in what they choose to do; to think on what the selection of particular actions or causes might reveal much about the limits of their purpose and the nature of international law. Another is that emotions like distress and an obsession with crisis are recurring tropes of international law in theory and practice (see here).

The response I want to take up here builds on these, but comes more from the office of scholar and jurist than that of the action-oriented international lawyer. The use of ‘office’ here may not be familiar or clear to most readers (see especially here). What I am pointing to is a language of responsibility for law, lawfulness and lawful relations, rooted in a longer, broader tradition of scholarship and public reflection, of speaking for and about law in a way that is always attentive to social life and politics. At this moment of crisis and distress, real or imagined, the concern here is to think and talk about law and its place in the world, to try to describe together what exactly is going on, and about how lawful relations might tell us something about it. This is a scholarly task of picking apart discourse — of talking, teaching, reading and listening — rather than picking it up in service of one end or another. It may seem to be of limited use in the face of suffering and injustice. But careful unpicking is a first step to addressing the rancour of 2017, and doing this task well is one way we might avoid either despair or deafness or, more gravely, enlistment — unwitting or not — in one of the many ignorant armies doing battle or being raised.

3. DOMESTICATION

One answer to the question of what exactly happened to law and the international in 2017 is ‘domestication’. By this I mean the relevance of local law and politics for upheavals at the international level. Crawford’s article shows one view of this story in examining the contemporary urgency of an old fissure at the core of international law: the apparent division or split between domestic and political legal authority, and the sphere of international law. This split is part of a number of key international law concepts: sovereignty, non-intervention in internal affairs, the equality of states, and so on. In Crawford’s examples, local and regional political discussions led to upheavals at the levels of international politics and law. The judicial decisions that stemmed from them are contemporary grapplings with this interaction of the domestic and international.

Since at least 1990, the division between domestic and international has often been said to have been shifted, warped or even collapsed by globalisation, the apparent triumph of liberal democratic capitalist nation-states, the Internet, or whatever. Perhaps this was always the case; that — to mangle Bruno Latour’s phrase — we have never been international, and did not become so in 1990, or 1945, or whenever else. By this I mean that domestic politics and laws have arguably always been the models, principles, and forms of life that various states at various times insisted should be applied as universal and international. Through that discourse, international law emerged from domestic politics but was said to be above and distinct from it. This account is partly seen in the critiques of the liberal international legal order that Crawford rejects. Those critics point out that, time and again, the language of protection, freedom, liberal democracy, and human rights — domestic ideas transposed into international projects; humanitarian intervention, the responsibility to protect, peace-building — often form covers for state action that undermine or run against these principles or ideals. These discourses not only justify those actions, but they also close off the possibilities — to say nothing of the realisation — of other visions of law, society, or the world.

A different meaning of domestication opens up these conversations. Domestic life and history create a range of ways in which a nation’s wounds and the wounds of its leaders may end up playing out on the international stage, in its laws, and in its contribution to and engagement with international law. The American example here is but one, clear illustration. America’s current visions of international life are inexorably bound to its visions of national life, and the injustices of that existence. Its internal wounds have long been the exit wounds left throughout the rest of the world. It is not possible to justify the mission of empire abroad without ignoring or exacerbating these things at home. Dispossession, racism, segregation, the denial of civil rights, and the obsessive fear and loathing of the foreigner and immigrant begets condescension and the denial of the rights of other nations, with interventions into their daily life to follow. Militarism and the scorning of ‘weakness’ begets an obsession with death and killing as the only real means of dispute resolution. The celebration of mutually destructive trade wars as ‘good, and easy to win’ shows this combativeness extends even to peaceful international engagement.  Democracies cannot be genuinely promoted or supported without real respect for the public control of public power. America’s undermining of international law — its interventions, its wars, its vision of the competitive game — come from its dark, local pasts. The same could be said about many powers, big and small, today and yesterday.

This did not begin with President Trump, and it did not start in 2017. But the Trump Administration’s discourse about international law seems especially narrow because it is based on such a limited view of what life is like and what it is about. By the phrase ‘what life is like’, I do want to capture both the domestic and international meanings: this extends to both each individual’s ethics, their responsibility to their family, neighbours and friends, to their systems of government, and to foreign individuals and nations; and each polity’s image of itself as a responsible world citizen. Trump’s vision is the biological view of endless competition, pursued by money or force, applied to all spheres of life and any level of social interaction. The individual is self-reliant, rational, naturally competitive, and seeks to defeat other individuals. Family, business, church, town, country and the minimal international legal order are all collections solely for propelling individual gain and achievement. These are the natural laws of neoliberalism, with a new weird gloss of anti-globalism. When Trump confirmed and entrenched the McMaster/Cohn vision — at the UN General Assembly in September, in the National Security Strategy, and most recently at the World Economic Forum in Davos — he used this language of national self-love, sovereignty as self-interest alone, nations as open for business, and being ready for competition. The flip sides of these principles have scandalised time and again: the obsessions with racial purity, the scatological ordering of the world, the insistence that America has been ripped off and duped by international law.

4. OTHERS

For Crawford, remedying this vision is about talking against it. Certainly, we can keep up that conversation to insist time and again on the existence of international law’s core, speak against its violations, point out the ignorance, paucity and dangers of this kind of rhetoric and its worldview. Maybe it will heal the fissures, maybe it will not. But if one major participant is committed to a language that — intentionally — does not give us much to talk about, we might run out of things to say. Where, then, are some other directions to turn to for understanding the world and laws of 2017? And if the fissures crack further, where are some other voices that might need to be part of any rebuilding? I make three suggestions. The first two are perhaps obvious, the third a little more esoteric.

My first is to propose widening the discourse while keeping it political: examining not (just) the usual fare of the statements of leaders, diplomats and lawyers, but instead thinking about social and political mass movements — within and across nations — and their impact on international law. This has long been a concern for Marxist, feminist and Third World approaches to international law, and these all posed and still pose strong challenges to the liberal-democratic international legal order vision that Crawford presents as the main story. Building that critique in recent work has involved a turn to the ‘everyday’: to understand the meanings and shape that international law gives to lives, even where those participants might not realise that the language they use is international and legal. These are conversations about more general ideas in politics — justice, authority, fairness, order — that find their way into new and interesting places when they take up the languages of international law. If we are interested in different futures we must expand the horizons of where we look for the political and the discursive. Perhaps the strongest example of a change in horizons among social movements was #metoo, originally conceived by African American civil rights activist Tarana Burke. It pitted history, art and activism against the failures of law and power, and shows no signs of slowing down, with, indeed, the UN bureaucracy now facing its own set of scandals on the back of decades of allegations against peacekeeping missions. It demands a moral change to be hardened into political and legal changes across the nations of the world.

A second suggestion is a conscious widening of the time scale of political discourse: looking far more to history and memory, and also paying closer attention to the complex task of investigating how they might — or might not — explain today’s world. To expand Crawford’s geological image, we should become interested in mining the ways and circumstances in which the layers were formed, the traditions through which we locate and remember them and also keep them alive and with us. But there are also other histories and ways of using history. Discourse is not just the currents of 2017 but an accretion and sedimentation of ideas, arguments, analogies, memories, histories and ways of living. In plainer terms, international legal argument is always already about the past: the claim of obligation rooted in a thirty-year-old treaty, a principle of law articulated time and again by an international court, or the idea of sovereignty that someone or other argues holds the same shape as it did at Westphalia or in the mind of Hugo Grotius or a radically new shape, or whatever. Crawford’s original address contained some historical comparison to illustrate a system ‘really breaking down’ in 1938. As this point does not appear in this shape in the final text I do not want to dwell on that comparison much. But it does raise an absence of history in his analysis, even in gestural form. With this comes the question about what uses history and comparison might have for today. Historical comparison can be misleading because there are so many new ways in which things that seem stable might fail. Looking for clear historical analogues might cause us to miss the same phenomenon happening for vastly different reasons or in different contexts — say, the impact of technology on discourse — or different results from seemingly similar causes. But delving into the historical not only gives us some distance from the maelstrom of the present; it can also give us insights into how people, scholars, lawyers, and, especially, social movements, dealt with the law and politics of dark times past.

The third, more esoteric direction is towards a discourse with those holding not political but cultural and social power; artists who, in the cliché, hold a mirror up to society and the world. These ‘everyday’ imaginings about the international and the legal are more likely to be couched in the language of justice, morality, rights or fairness; things that the tumble and complexity of international legal argument either skip, assume, or make technical. One of the values of political artistic discourse is its explicitly non-legal and sentimental view of the world and its justice, within and beyond the state.

Kendrick Lamar’s album DAMNuncontroversially a major American cultural event of 2017 — provides one such example (music here, lyrics here). It is a masterful addition to a long line of politically-conscious rap music that holds its roots in the poetic and prophetic traditions of African American writing and thought (see here). Like much of Lamar’s work, DAMN is shot through with theology and questions of faith, justice and conduct. As Rodney Carmichael recently wrote, its verses are scripture in which Lamar plays deftly with the ideas of prophecy, leadership, sin, and much else besides: ‘It’s clearly made for such a time as this — one in which politics and personal accountability are colliding with unprecedented force’.

The double-sided question that begins the album is ‘Is it wickedness? / Is it weakness?’. This question leers at the listener throughout, crooned, giving way to a dazed 70s funk bassline and backing, leaving it with us. Repeated through the album is the statement, slightly garbled, as if it were intruding from a parallel universe, from which this comment takes its title: ‘Whatever happens on earth stays on earth’. The tracks that follow start with Lamar’s own stories and struggles between this balance, spiralling to cover social and racial determinism (DNA), crises of faith and the unknowability of God and religious-racial identity (YAH), the acceptance of imperfection and the response to temptation (PRIDE, HUMBLE), the frustrations of powerlessness (FEEL), the attempts to be in community with others and America’s failures to make that real (LOYALTY, XXX).

Against insistences that life and power are about straightforward things, the complexity, messiness and contexts of works like DAMN give us a much more complicated picture of what it is to be responsible and to respond to politics today. ‘Is it wickedness? / Is it weakness?’ are questions of faith and action. They would form one good touchstone for the artists and activists, lawyers and leaders, writers and workers of 2017. Are our societies and our global orders driven to stop wickedness and alleviate weakness, or are they structured to facilitate the spread of those things? Is a constitutional order — domestic or international — designed to curtail wickedness, through a system of weaknesses, and is it still working? How much, and how many kinds of weaknesses among its constituent members — citizens or states; classes, genders and races; and, indeed, its leaders — can it bear? How and where might we be complicit? If the answers to these questions are bad ones, then what should we do?

Against those who insist that strength, competition and confrontation are the essence of our lives, the language of wickedness and weakness gives us a different conversation. That conversation is one about law and lawful relations: taking up the ideals and principles that we hope to hold our better selves to in our dealings with each other, local or international, even when public opinion, or economics, or force, or whatever else, beckons us towards what we know is unjust. The constant emphasis on strength, competition and confrontation are poor covers for widespread fears about weakness within the state and on the global stage. We know, time and again, that fear so often paves the way to wickedness.

Writing — sacred, secular, artistic, academic — is one bulwark against weaknesses; and against the loss of faith and the distress that we feel. That is the outlet it provides for Lamar: to make sense of his life, his responsibilities, his community, his nation and his history, — to understand the meaning of inadequacy, rage, loss, pride, judgment, despair — and to help us all make sense of ours and work out what to do together. DAMN and its global resonance last year is a reminder that many other people are distressed and trying to make sense of the injustices of the world. They may be doing a much better job of articulating that distress than law or lawyers can, particularly if we limit our thinking about politics, discourse and international law to the narrower senses of those terms.

But it is DAMN’s second incantation — that ‘Whatever happens on earth stays on earth’ — that is the stronger echo of last year, and one that brings us back to Crawford, the Chorley and the sedimentary view of international law. To me the phrase encapsulates how we should begin trying to make sense of 2017 and its impact on domestic and international law and politics. Whatever happens on earth — whatever is done to human beings last year, last century — ends up in the layers of law. Some things lie buried, others dormant, still others resurface. Crawford’s sedimentary image is a good one, and it reminds us of the solidity and endurance of these principles, ideas and forms of argument that can be reassuring in dark times. But it does carry a risk of forgetting that international law is not natural history or inevitable and unchanging, but the product of human action. ‘Whatever happens on earth stays on earth’ is a call to not forget that justice and the lives of everyday human beings are shaped and sometimes endangered by the things lawyers spend their time arguing about. Trying to understand how the ground lies moving into 2018 requires an expansive idea of law, the international, human action, and discourse — a capacious engagement with the world. That capaciousness can only be achieved by looking to other conversations and views from different, unexpected places.

One of Crawford’s predecessors in the Whewell Chair of International Law placed such a vision at the centre of his 1888 inaugural lecture. John Westlake — a paragon of the liberal international lawyer — ultimately defined international law as that which deals ‘with all human action not internal to a political body’, placing action, duty and responsibility at the forefront of the international lawyer’s task. This is a view that is suitably wide-ranging for today — albeit with the recognition that, as I have argued above, not much human action today stays internal to a political body. But the foul dusts floating in that address, indeed on the very same page, and in the wake of many dreams of liberal international legal order, are colonialism and imperialism; international visions of white supremacy (see here). Westlake provided but one example of this trend when he spoke of spreading international law to the ‘lesser races’ and the ‘half’ or ‘uncivilized’. Today’s dark social movements within the global North — white supremacist, nativist, irredentist, anti-globalist — are new discourses of these old prejudices and oppressions; new cries of old emasculations, psychic wounding and fear. They have clear international dimensions and obsessions. They have shed even the thin veneer of progress of enlightenment for combat and apocalypse.

There is plenty of wickedness and weakness that is not new, and which needs to be talked about too. So much that is happening on earth right now is going to be with us for some time, and understanding it will take a great deal of digging and discussion. Looking to social movements, history, and culture helps bring us back to the world in a way that is not always already mediated by law and the search for legal questions for which to prescribe legal analysis, principles, norms, institutions or critiques. One part of our work is sharing and encouraging that discussion, not to justify some achievement or the stopping of crises, but as a reminder that international law’s stories are powerful ways to understand the world and life throughout it. It need not always be in defence of something or other. It can be to describe, to explain, to answer questions, to take criticism. It can be about listening, carefully, to things we usually ignore. This could be called a feminist approach to discourse that takes listening, others, and the everyday domestic life of international law seriously, putting this in place of a global, dehumanised, universal, competitive and combative framing. It seems especially appealing because so much of the story of international law and 2017 is about masculinities and toxicities of various kinds: threats of violence and calls to defence; the competitive world and its mirror of competitive argument; fear of what is foreign; the propagation of faith; the cool rationality in seeing and facing crisis; and the manly depression and grim resignation at the horrors of the world. None of these things seems very helpful, but discourse of many kinds can be a partial antidote to them. For jurists — especially men and those in the global North — other discourses and a capacious engagement with the world, law and the international are needed to clarify our responsibilities in talking and acting against the old faiths in our entitlements and competences, which, happily, are starting to bend. When this task gets too distressingly large, we can take a breath, and start again with small conversations in new places.

References

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Published 09.03.18
Response by Martin Clark
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