On Fragments and Geometry: The International Legal Order as Metaphor and How it Matters

This article engages the narrative of fragmentation in international law by asserting that legal academics and professionals have failed to probe more deeply into ‘fragmentation’ as a concept and, more specifically, as a spatial metaphor. The contention here is that however central fragmentation has been to analyses of contemporary international law, this notion has been conceptually assumed, ahistorically accepted and philosophically under-examined. The ‘fragment’ metaphor is tied historically to a cartographic rationality – and thus ‘reality’ – of all social space being reducible to a geometric object and, correspondingly, a planimetric map. The purpose of this article is to generate an appreciation among international lawyers that the problem of ‘fragmentation’ is more deeply rooted in epistemology and conceptual history. This requires an explanation of how the conflation of social space with planimetric reduction came to be constructed historically and used politically, and how that model informs representations of legal practices and perceptions of ‘international legal order’ as an inherently absolute and geometric. This implies the need to dig up and expose background assumptions that have been working to precondition a ‘fragmented’ characterization of worldly space. With the metaphor of ‘digging’ in mind, I draw upon Michel Foucault’s ‘archaeology of knowledge’ and, specifically, his assertion that epochal ideas are grounded by layers of ‘obscure knowledge’ that initially seem unrelated to a discourse. In the case of the fragmentation narrative, I argue obscure but key layers can be found in the Cartesian paradigm of space as a geometric object and the modern States’ imperative to assert (geographic) jurisdiction. To support this claim, I attempt to excavate the fragment metaphor by discussing key developments that led to the production and projection of geometric and planimetric reality since the 16th century

Performing Legality in the Theatre of Hostilities: Asymmetric Conflict, Lawfare and the Rise of Vicarious Litigation

This Article explores the extent of the change by looking at the ways in which asymmetric conflict and legalization have reshaped the theatre of hostilities and the implications for the institution of war itself. The shift from one literal battlefield to multiple and disaggregated battlespaces has led to a reconfigured theatre of hostilities, which now involves a complex mix of local and global spaces as well as kinetic and narrative forms of combat. This re-making of armed hostilities in geographical, material, and social terms has increased access to the drama, stage, and audience of military theatres. Further, the more globalized and publicized character of hostilities has allowed a higher number of actors, and actors of higher quality, to participate in and observe hostilities, whether kinetic, narrative, or both. This has given a powerful platform for law to mediate the conduct of warfare, and it is thus unsurprising that the notion of legality regularly occupies center stage in a reconstructed theatre of hostilities. Accordingly, military actors, whether state or non-state, are producing performances of legality in combat to influence not only their adversaries but also, crucially, formal and informal judgments across the theatre’s more expansive and global audience. The term “performances” does not imply cynical theatrics, but rather concerted actions to display legality or illegality as an integral part of warfare. In this way, such performances of legality have become a crucial strategic asset for interacting kinetic and narrative confrontations. This has led to a distinctive struggle between adversaries over appearances of legality and illegality, which has produced an institutional and narrative battlespace of growing importance that this Article conceptualizes as vicarious litigation. The Article is organized in five sections. Section I introduces and elaborates on the related notions of legal performances and vicarious litigation by bridging sociological theorizing on social performances with noted developments in asymmetric warfare. This conceptual effort draws insight from Performative Sociology and the so-called “practice turn” in international relations theory. Section II describes the origin of vicarious litigation as flowing from the asymmetric warfare’s disruption of the institutional bargain behind modern war and, consequently, International Humanitarian Law (IHL). To understand that institutional disruption, Section II discusses Andrew Mack’s under-examined inquiry into and conceptualization of “asymmetric conflict.” Sections III and IV look at how international lawyers, and specifically IHL scholars, have struggled to grasp the rise of asymmetric conflict and how the dominant “lawfare” literature has suffered from conceptual straining and the incapacity to theorize institutional change precipitated by the prevalence of asymmetric conflict. Section V focuses on the novel notions of legal performances and vicarious litigation and examines how these novel notions provide alternatives to the hobbled semantics of lawfare by offering greater insight into institutional mutations that now define the legalization of contemporary warfare

International Law and the 'Ides of March': A Response to David Kennedy

My response to this year’s Montesquieu lecture focuses on Professor Kennedy’s invitation to imagine the liberal institutional order as having been a dream-like experience, from which international elites have abruptly awoken. Yet, I engage that invitation by altering the framing somewhat. Perhaps the experience that was the liberal institutional order was a kind of theatre as opposed to merely a dreamscape. The ‘deliberate’ enactment of a geopolitical and geo-economic imaginary,1 but where liberal actors forgot over time that this ruling imaginary required a convincing public performance.2 Using my frame, the ensuing decay or collapse of the imaginary then invites a different kind of cautionary tale, where the scene of awakening is a prologue. The actual plot involves a settling of economic, political and legal debts incurred by liberal elites to sustain an imaginary that now confronts declining domestic and international purchase

On ‘Bad Law’ and ‘Good Politics’: The Politics of the ICJ Genocide Case and its Interpretation

The discontent within legal ranks over the recent judgment of the International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro can be described as nothing other than poignant. The stylized characterization voiced privately by many critics is that the judgment amounted to ‘bad law’ and ‘good politics’; that the Court's ruling had been profoundly influenced by Serbia's fragile domestic politics and hence this worked silently to constrain the Court's rationale and lawmaking. Sadly, critics opine, this political intrusion into the sanctuary of lawmaking produced a judgment that now denies the ‘universal’ deterrent which the Genocide case could have provided. This article, however, takes direct issue with axiomatic interpretations of what constitutes ‘bad law’ and ‘good politics’ in the Genocide case, and argues instead that an antithetical characterization of law with politics proves fundamentally misleading when analysing the Genocide judgment, overlooking the inherent association between law and politics in complex cases that have now become ‘bread and butter’ for international lawyers. In sum, this article will argue, the judgment should not be written off using the dichotomy of ‘bad law’ and ‘good politics’, but rather should invoke critical reflection within the academic discipline and professional practice on the problems of politics which constitute and hence unavoidably permeate cases that emerge from calamitous failures of international politics. The hardening of the fictional boundary between law and politics may provide a convenient gambit for those advocating the ascendancy of international law. However, it is argued, obfuscating the political swamp which is ‘international justice’ cannot make a juridical pasture no matter how much authoritative or ‘learned’ ink is spent; and this is perhaps the key lesson which should be discerned by legal experts from the Genocide case as a whole

The Politics of International Law and Compliance: Serbia, Croatia and The Hague Tribunal

Leading the debate on the domestic effect of the growing influence of international adjudication, this invaluable text examines Serbia and Croatia’s erratic record of compliance with the International Criminal Tribunal for the Former Yugoslavia (ICTY). Since the demise of the Milosevic and Tudjman regimes, Serbian and Croatian governments have been inconsistent in cooperating with the ICTY, despite the conditions of EU membership and US financial incentives. This study reconstructs events before, during and after extradition to build up a picture of the complex politics involved in ICTY relations, and provides a conceptual framework to study compliance in international relations and law. Through this analysis, a historical tracing of varied factors of political influence and a conceptualization of compliance is provided, resulting in a rich interdisciplinary work embracing political science, international relations and social theory. By scrutinizing the social meanings and political practices which become attached to prescribed norms in compliance processes, this book provides a highly-relevant insight into contemporary meanings of ‘compliance’.Preface 1. Another ‘Balkan Odyssey’: Introducing a Compliance Puzzle? 2. Rethinking 'Norm Diffusion' as the Politics of Meaning and Influence? 3. The High Politics of Justice: (Re)Introducing the Problem of ICTY 'Compliance' 4. Political Conditonality as Political Casuistry: ICTY (Non)Compliance in Post-Milosevic Serbia 5. Political Conditonality as Political Casuistry: ICTY (Non)Compliance in Post-Tudjman Croatia 6. Conclusion: Influence, Compliance and the Study of Rule FollowingPublished version of EUI PhD thesis, 200

What is a Grave International Crime? The Rome Statute, Durkheim and the Sociology of Ruling Outrages

This article interrogates the Rome Statute and its “gravity” threshold as a synonym and antonym of penal accountability, by looking critically into the sociological and doctrinal sources that venerate a circumscribed catalogue of grave international crimes. Specifically, I engage Durkheimian sociology to complement existing doctrinal critiques that have identified a conceptual and policy void within the Rome Statute’s seminal gravity threshold. Such an interdisciplinary move, I argue, highlights how a politics of ruling outrages naturalize, under the cover of doctrinal determinacy, an economy of grave versus non-grave (international) crimes. My argument works between sociology and doctrinal analysis in three steps. First, Emile Durkheim is reintroduced to international lawyers for his scrutiny of crime and penal law as producing and reflecting any society’s outrages. Second, this Durkheimian insight is then used to scrutinize how the Rome Statute’s gravity threshold relies, in part, on symbolic power and sacral appearance to border jurisdiction on what grave crimes are and should be. Finally, we discuss how this sociological and symbolic infrastructure produces a caging effect, because it dulls capacity for reflection on whether international criminalization, under its gravity regime, remains connected to an evolving register of outrages and a more contemporary catalogue of grave crimes

Rules, Lawyering and the Politics of Legality: Critical Sociology and International Law’s Rule

After decades of rule-of-law promotion in world affairs, international law and legality have regained scholarly imperative. Yet this has not dissolved disciplinarity between international law (IL) and relations (IR), but furthered a priori theorizing and the unilateral extension of disciplinary research agendas. A prime example is the influential ‘legalization agenda’ of IR scholarship, where an institutionalist doctrine has renarrated the ‘L word’ through a fetishizing of rules and a managerial focus on rule compliance. However, this approach confronts a problem of relevance as international struggles increasingly involve contests over how to legally characterize issues, actions, and events, and this engages juridical and normative dimensions of rule application which are beyond the managerialism of compliance. This article argues for greater sociological and critical engagement with the way in which the concept of law operates through juridico-political practices of legality, and the aim is to provide a theoretical and empirical discussion that revives the significance of the juridico-political world for scholarships which have habitually underplayed the constitutive significance of lawyering for rule application. To do so, this article, first, addresses the profundity of Kant's work and concern over law's application by a rule-applier and, second, claims this has long invited a more critical sociology. To initiate that social exploration, the paper draws on both Pierre Bourdieu's concept of the ‘juridical effect’ and the Foucauldian notion of ‘normative law’ to theorize the significance of juridical and normative practices in the making of international law's rule. In the final section, I introduce the empirical benefit of these critical sociologies by turning to the law of armed conflict (LOAC), and the ways juridical and normative power have enabled sophisticated militaries of the developed world to constrain the application of the LOAC in contemporary wars of asymmetric combat

The Power of Legality: Practices of International Law and their Politics

From an airstrip in Saudi Arabia, the CIA launches drones to 'legally' kill Al-Qaida leaders in Yemen. On the North Pole, Russia plants a flag on the seabed to extend legal claim over resources. In Brussels, the European Commission unveils its Emissions Trading System, extending environmental jurisdiction globally over foreign airlines. And at Frankfurt Airport, a father returning from holiday is detained because his name appears on a security list. Today, legality commands substantial currency in world affairs, yet growing reference to international legality has not marked the end of strategic struggles in global affairs. Rather, it has shifted the field and manner of play for a plurality of actors who now use, influence and contest the way that law's rule is applied to address global problems. Drawing on a range of case studies, this volume explores the various meanings and implications of legality across scholarly, institutional and policy settings