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Models and Documents: Artifacts of International Legal Knowledge

  • Annelise Riles

Extract

It is a common observation that the theory and practice of international law are far apart. Richard Falk, for example, begins his 1970 book by chastising international legal theorists for failing to “provide adequate guidelines for evaluating particular decisions”.2 Likewise, Louis Henkin asserts that, “Lawyer and diplomat are engaged in a dialogue de sourds. Indeed, they are not even attempting to talk to each other, turning away in silent disregard.”3

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References

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1. Dunn, Frederick S., The Practice and Procedure of International Conferences 6 (1929).

2. Falk, Richard A., The Status of Law in International Society 7 (1970).

3. Louis, Henkin, How Nations Behave: Law and Foreign Policy 2 (1979).

4. Carty describes the mission of the founders of the Institute of International Law in 1873 was how precisely to set up an academic and hence objective source of international legal principles. This objectivity was understood in direct contrast to the “particular interests” of diplomats and their sovereigns. See Carty, J. A., “Changing Models of the International System”, in Perestroika and International Law 13 (Butler, W. E., ed. 1990) p.20.

5. See Falk, supra n.2; Henkin, supra n.3.

6. Reisman, W. Michael, “International Incidents: Introduction to a New Genre in the Study of International Law,” in Reisman, W. Michael & Willard, Andrew R., eds., International Incidents: The Law that Counts in World Politics 6 (1988).

7. In this respect, I treat international law in a similar manner as recent studies of science. See e.g. Donna, Haraway, Primate Visions: Gender, Race, and Nature in the World of Modem Science (1992); Marilyn, Strathern, After Nature, English Kinship in the Late Twentieth Century (1992); Paul, Rabinow, Making P.C.R.: A Story of Biotechnology (1996); Bruno, Latour and Steve, Woolgar, Laboratory Life: The Construction of Scientific Facts (1986), John, Law, Organizing Modernity (1994).

8. See e.g. Henkin, , supra n.3 at p.7 (“An inquiry into the role of law must take into account the state of ‘the system’—the character of international society and of the law at a given time.”); Reisman, , supra n.6 at p.15 (“I define an ‘incident’ as an overt conflict between two or more actors in the international system.”)

9. See e.g. Franck, Thomas M., “Legitimacy in the International System” (1988) 82 A J.I.L. 705.

10. See Lawrence, Thomas J., The Principles of International Law (4th ed. 1910).

11. This was the famous Gulf War phrasing of George Bush in arguments concerning the legality of that war under international law. See e.g. Barton, Gellman, “U.S. Officials Reiterate Possibility Of Attack on Iraq Over Arms Issue; Senate Supports Bush Administration's Stance on 97 to 2 Vote” The Washington Post, Saturday, 08 3, 1991.

12. Barton, J. H. and Carter, B. E., “International Law and Institutions for a New Age” (1993) 81 Geo.L.J. 535.

13. See Baldwin, S. E., “The New Era of International Courts”. (19101912) Jud. Settlement of Int'l Disp. 3.

14. Franck, Thomas M., “The New Development: Can American Law and Legal Institutions Help Developing Countries?” (1972) 12 Wis.L.Rev. 767.

15. See Anne-Marie, Burley, “Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine”, (1992) 92 Colum.L.Rev. 1907.Cf. Carty, supra n.4, at p.20 (noting that even for international lawyers of the Soviet bloc, “[t]he nature of the preferred international system is profoundly liberal”).

16. See Phillip, Allott, “Reconstituting Humanity: New International Law”, (1992) 3 Eur.J.Int'l L. 219.

17. See Franck, Thomas M., The Power of Legitimacy among Nations 5 (1990) (lamenting international lawyers' failure to ask more philosophical, “teleologicar” questions about our models of the international system as would have been commonplace in an era in which theories of natural law dominated the agenda).

18. Cf. Carty supra n.4 (“The reflections of international lawyers on [the international] system are in fact what lawyers call international law.”)

19. The academic international lawyer's modelling has parallels in other genres of modernist academic inquiry. Anthropology, for example, has devoted itself to making models out of other people's practices. No wonder, then, that anthropology is evoked by international lawyers only to demonstrate that “International law is analogous to the decentralised systems studied by anthropologists, given the paucity of an international integration and the ability of some actors to withstand such modest coercion as can usually be deployed.” Brietzke, Paul H., “Insurgents in the ‘New’ International Law”, (1994) 13 Wisc.Int'l L.J. 1, 22.

20. See e.g. Elizabeth, Heger Boyle and Meyer, John W., “Modern Law as a Secularized and Global Model: Implications for the Sociology of Law” in Yves, Dezalay and Bryant, Garth (eds.) Global Prescriptions: Law as the Reproduction and Internationalisalion of the Field of State Power (forthcoming); Emanuel, Adler, “The Emergence of Cooperation: National Epistemic Communities and the International Evolution of the Idea of Nuclear Arms Control”, (1992) 46 Int'l Org. 102145.

21. See e.g. Abbott, Kenneth W. & Duncan, Snidal, “Why States Act through Formal International Organisations”, (1998) 42 J. Conflict Resolution 3.

22. See Keck, Margaret E. and Kathryn, Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (1998); Brietzke, supra n.19 at pp.156.

23. See e.g. Falk, supra n.2 at p.8 (“Most international lawyers, whether inside or outside universities, profess to be antitheoretical. Such a profession is often accompanied, or even justified, by a conviction that theory is a waste of time in legal studies. The serious work of legal research, the argument proceeds, is to organise and analyze the knowledge that has grown up as a consequence of attempts by lawyers, judges, government officials, and other scholars to solve specific legal problems.”).

24. See e.g. Francisco, Orrego Vicuna, “The Status and Rights of Refugees under International Law: new issues in light of the Honecker affair”, (1994) 25 U. Miami Inter-Am.L.Rev. 351; Jennifer, Moore, “Restoring the Humanitarian Character of U.S. Refugee Law Lessons from the International Community”, (1997) 15 Berk.J.Int'l Law 51; Ruddick, Elizabeth E., “The continuing constraint of sovereignty: international law, international protection, and the internally displaced”, 1997 77 B.U.L.Rev. 429; Roman, Boed, “The State of the Right of Asylum in International Law”, (1994) 5 Duke J.Comp. & Int'l L. 1.

25. See e.g. Erika, Sussman, “Contending with Culture: An Analysis of the Female Genital Mutilation Act of 1996” (1998) 31 Cornell Int'l L.J. 193; Robyn, Cerny Smith, “Female circumcision: bringing women's perspectives into the international debate”, (1992) 65 S.Cal.L.Rev. 2449.

26. See e.g. Levie, Howard S., “Prosecuting War Crimes Before an International Tribunal”, (1995) 28 Akron L.Rev. 429; Darryl, Robinson, “Developments in International Criminal Law: Defining ‘Crimes against Humanity’ at the Rome Conference”, (1999) 93 A.J.I.L. 43; 998; Murphy, Sean D., “Developments In International Criminal Law: Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia 1999”, (1999) 93 A.J.I.L. 57.

27. The archetypal contemporary example is Reisman's turn to “incidents” which is a turn from models of the international system to incidents. See Reisman supra n.6.

28. See James, Boyle, “Ideals and Things: International Legal Scholarship and the Prison-house of Language,” (1985) 26 Harvard Int'l L.J. 327.

29. See, Breckenridge, L. P., “Protection of Biological and Cultural Diversity: Emerging Recognition of Local Community Rights in Ecosystems Under International Environmental Law”, (1992) 59 Tenn.L.Rev. 735.

30. See e.g. David, Kennedy, “A New World Order Yesterday, Today and Tomorrow”, (1994) 4 J. Trans. L. & Contemp.Probs. 1, 2.

31. See e.g. Lam, M. C., “Making Room for Peoples at the United Nations: Thoughts Provoked by Indigenous Claims to Self-Determination” (1992) 25 Cornell Int'l L.J. 603.

32. See e.g. Szasz, Paul C., “General law-making processes” in The Untied Nations and International Law (1997) p.32, “Hard international law is, by definition, binding, at least on some international entities (states or IGOs).… By contrast, soft international law is not binding, though perhaps superficially it may appear to be so; nevertheless, international entities habitually comply with it, and it is this feature that makes it possible to characterize it as ‘law’.”

33. I do not mean to imply that an impermeable divide exists between academics and practitioners of international law. For a useful discussion of the relationship between practitioners and academics, and the way in which many figures in both camps work as “double agents”, see Yves, Dezalay and Bryant, Garth, Dealing in Virtue (1996) pp.7073.

34. In this respect, this project participates in the traditional modernist anthropological ambition to understand others' social practices on their own terms. See e.g. Bronislaw, Malinowski, Crime and Custom in Savage Society (1984).

35. Cf. Abram, Chayes and Chayes, Antonia H., The New Sovereignty (1995), p.xi (making a similar argument, in the context of compliance with international agreements, that “it is important to understand what states, international organisations, officials and other actors actually do)”. From this vantage point Chayes and Chayes assert that agreements such as the Global Platform for Action are not “merely aspirational” but, rather, are “designed to initiate a process”: idem, p.17.

36. “An examination of State practice at international conferences reveals however that the rules of procedure and their interpretation follow remarkably consistent patterns.” Robbie, Sabel, Procedure at International Conferences: A Study of the Rules of Procedure of Conferences and Assemblies of International Inter-govemmental Organisations 1 (1997).

37. The CSW is a sub-body of the UN Economic and Social Council (ECOSOC) and shoulders the responsibility of convening the Beijing Conference. See United Nations Secretariat, “Organization of Work, Including the Establishment of the Main Committee”, UN doc.A/CONF. 177/1.

38. . Officially, the PrepCom was also the annual meeting of the Commission on the Status of Women (CSW), an organisation of member states elected on a rotating basis from the membership of the UN's Economic and Social Council (ECOSOC), the major UN organ of which the CSW is a part. See United Nations, “Commission on the Status of Women”, http://www.un.org/womenwatch/daw/csw/. All UN member states and official observers were invited to send delegates to the PrepCom and the FWCW.

39. United Nations, Draft Platform For Action, UN doc.A/CONF.177/L.1.

40. United Nations, Platform for Action, UN docA/CONF. 177/20.

41. Johan, Kaufmann, Conference Diplomacy: An Introductory Analysis, 36–37 (1988).

42. United Nations General Assembly, Report on Violence against Women Migrant Workers, UN doc.A/49/354; United Nations General Assembly, Executive Summary of 1994 World Survey on Women, UN doc.A/49/378; Commission on the Status of Women, Technical Assistance and Women, UN doc.E/CN.6/1995/6; Commission on the Status of Women, Status of Women in the Secretariat, UN doc.E/CN.6/1995/7; Commission on the Status of Women, Situation of Palestinian Women, UN doc.E/CN.6/1995/8; Commission on the Status of Women, Crime Prevention and Violence against Women, UN doc.E/CN.6/1995/9; Commission on the Status of Women, CSW Priority Theme: Economic Decision-making, UN doc.E/CN.6/1995/10; Commission on the Status of Women, CSW Priority Theme: Gender, Education and Training, UN doc.E/CN.61 1995/11; Commission on the Status of Women, CSW Priority Theme: International Decision-making, UN doc.E/CN.6/1995/12; Commission on the Status of Women, Joint Work Plan on Women's Human Rights, UN doc.E/CN.6/1995/13.

43. The World's Women, 1995: Trends and Statistics, UN Sales No. E.95.XVII.2.

44. Commission on the Status of Women, Jakarta Declaration and Plan of Action for the Advancement of Women in Asia and the Pacific, UN Doc.E/CN.6/1995/5/Add.1 (1994); Commission on the Status of Women, Regional Programme of Action for the Women of Latin America and the Caribbean, 1995–2001, UN Doc.E/CN.6/1995/5/Add.3 (1994); Commission on the Status of Women, Regional Platform for Action—Women in a Changing World—Call for Action from an ECE Perspective, UN Doc.E/CN.6/1995/5/Add.4 (1994); Commission on the Status of Women, Arab Plan of Action for the Advancement of Women to the Year 2005, UN Doc.E/CN.6/1995/5/Add.5 (1994); Commission on the Status of Women, Dakar Declaration and African Platform for Action, UN Doc.E/CN.6/1995/5/Add.2 (1994).

45. For a discussion of the experience of the conference as a “global” phenomenon see Annelise Riles, The Network Inside Out (forthcoming).

46. United Nations Fourth World Conference on Women, Platform for Action, chap.IV. sec.L. paras.259–285.

47. See Donald, Brenneis, “Discourse and Discipline at the National Research Council: A Bureaucratic Bildungsroman” (1994) 9 Cultural Anthropology 23; Donald, Brenneis, “New Lexicon, Old Language: Negotiating the ‘Global’ at the National Science Foundation” in George, Marcus (ed.) Cultural Anthropology Now: Unexpected Contexts, Shifting Constituencies, Changing Agendas (1999).

48. Kaufmann, supra n.42 at p.16.

49. This notion of the clean text has parallels to the notion of the conference documentation as “weak” or “strong”: “It is weak if papers or conference documents are available only shortly before or during the conference, so that delegates have had no time to study them. It can be called strong if conference documents are available several weeks prior to the conference.” Kaufmann, , supra n.42, at p.35. See also Riles supra n.46.

50. United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, UN doc.A/CONF.157/23 (1993).

51. United Nations Conference on Environment and Development, Agenda 21, gophen//unephq.unep.org:70/11/un/unced/agenda21.

52. “Copenhagen” refers to the text of the Social Summit, negotiated at Copenhagen in March 1995. See United Nations World Summit for Social Development, Report of the World Summit for Social Development, UN doc.A/CONF.166/9.

53. Appiah, Pathmarajah, “Preparing for a Meeting: Some Practical Advice to Diplomats,” in Multilateral Diplomacy 113, 115 (Boisard, M. A. and Chossudovsky, E. M., eds. 1998).

54. Integration of Women in the Middle East Peace Process, UN Commission on the Status of Women, 39th Sess., Agenda Item 5, UN Doc.E/CN.6/1995/L.9 (1995).

55. See Georges, Selle, “The Evolution of International Conferences”, 5 UNESCO International Social Science Bulletin 241, 249–50 (1953).

56. “Translators, working behind the scenes, are charged with the translation of documents, including draft resolutions, into the working languages of the conference. The great time pressure under which translators work sometimes result in minor errors being made. In such an event a correction is promptly issued”. Kaufmann, supra n.42, at p.44.

57. James, Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism, 254 (1990).

58. See e.g. International Women's Tribune Centre. “Anatomy of the Platform for Action”, (1995) The Tribune 54: 12; Asia-Pacific NGO Working Group. “Strategic Objectives from the Platform for Action” (1996) Reaching Out 2(4): 67; The National Council of Women, Fiji, Post-Beijing Seminar. Suva, Fiji (1995); Women's Environment and Development Organization, “Top Twelve Topics at the Beijing Women's Conference… and a Brief summary of Actions Recommended in the Platform for Action” (1995) News and Views 8: 3; Women's Environment and Development Organization “Turn the words into action!” Highlights from the Beijing Declaration and Platform for Action. 30 11 1995.

59. United Nations Fourth World Conference on Women, The Beijing Declaration, UN doc.A/CONF.177/20.

60. See e.g. Marilyn, Strathern, Partial Connections (1991); Annelise, Riles, “The View from the International Plane: Perspective and Scale in the Architecture of Colonial International Law,” in Eve, Darian-Smith (ed.) Laws of the Postcolonial (1999).

61. Put another way, a central feature of the document's aesthetic is that it conjures forth no interpretative context. Although context is not their word, if asked, those involved in its drafting might just as easily claim that the document is context to the conference at which it was created as vice versa, for they approach this conference as the culmination of many documents, drafts and drafting projects oriented toward the Platform's production. In any case, to read the document as reflecting the context in which it is drafted is tricky business; the document does not aim to point to anything other than itself. If the call to interpret law in context refers to taking into account the social relations that create the text, we have here an artefact that wants nothing of benevolent attempts to make it multi-dimensional or real in this sense.

62. Noel, Lateef, Parliamentary Diplomacy and the North-South Dialogue, (1981) 11 Georgia J. Int'l & Comp. L. 1, 2 (notes omitted).

63. See David, Kennedy, “The Disciplines of International Law and Policy”, (1999) 12 Leiden Journal of International Law 9, 10. Kennedy's failure to discuss those he terms “professionals” as opposed to “intellectuals” is all the more striking for a survey of international law and policy because of the care he takes in delineating the issues that separate and define public international lawyers, comparative lawyers, and international economic lawyers.

64. This understanding of international law as the institutionalisation of a liberal political philosophy is most often traced to Immanuel Kant's work on International Law. See Immanuel, Kant, Perpetual Peace and Other Essays on Politics, History, and Morals, (1983); and The Philosophy of Law; An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right (1974).

65. In his 1953 speech on international service. Brock Chisolm, the first Director-General of WHO, summed up the qualities necessary for what we might call the practitioner of international law. First on his list was a knowledge of history. Second was a “knowledge and appreciation of semantics, that is, the meanings of language, the use of words, the misunderstandings that may come not only through mistranslation from one language to another but because of the great variety of overtones, the different meanings that attach to the same words even in the same culture and especially in cross-cultural relationships”. Third was a knowledge of world religions. Fourth was a knowledge of “the techniques of the sociologist”. Fifth was social psychology. Sixth was “minor psychopathology”, a knowledge of the peculiarities people show, why they become annoyed, what tends to irritate them, what prevents their being friendly with certain kinds of people under certain circumstances, how the need for recognition, for prestige, for power, for importance works and why these things are so tremendously important to individuals and even to large groups of people. Only after this, in seventh place, was a knowledge of international law. See Brock, Chisholm, “How to Think and Act Internationally”, reprinted in Multilateral Diplomacy 107, 108 (Boisard, M. A. & Chossudovsky, E. M., eds. 1998).

* For comments and assistance of many kinds on this project, I warmly thank Andy Adede, Nathaniel Berman, Leigh Bienen, Don Brenneis, Abram Chayes, Bryant Garth, David Kennedy, Martti Koskenniemi, Hirokazu Miyazaki, Ed Morgan, Adam Reed, Phillipe Sands, and Marilyn Strathem. I thank Jane Campion and Beth Olds for their expert research assistance and their friendship. Research and writing for this article was funded by generous grants from the American Bar Foundation, Cambridge Commonwealth, The Ford Foundation, Livingstone and Overseas Trusts, the Smuts Fund, Trinity College, Cambridge, and the William Wyse Fund.

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