Sander, Barrie

Tallgren, Immi

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On Critique and Renewal in Times ofCrisisBarrie Sander, Immi Tallgren 2022-03-16T13:00:58Many of us are struggling to absorb the news coming out of Ukraine. Putin’s recklessand unjustified invasion has already generated significant loss of life, millions ofrefugees, and nuclear instability. Moments of crisis inevitably trigger periods ofheightened anxiety, as affected communities try to make sense of the situation andattempt to figure out how to respond. The invasion of Ukraine is a crisis that hastriggered processes of collective sensemaking that stretch across the world.How do international lawyers seek to make sense of crisis situations? As HilaryCharlesworth famously observed, international lawyers often find ourselves drawnto moments of crisis, marshalling our energies towards mobilising the vocabularyand institutions of international law in an effort not only to make sense of suchsituations, but also to identify concrete paths for halting, mitigating, and addressingthe unfolding violence.Narratives often provide the storylines through which international lawyerscommunicate what or who is to blame for a particular crisis and the steps that shouldbe taken in response. Importantly, as Anthea Roberts and Nicholas Lamp haveobserved, ‘Narratives are stories we tell ourselves to make sense of the world, butthey are also stories we tell others to influence their understanding of the world’.Different narratives highlight specific characters, interests, and solutions, framingsituations and deploying metaphors in ways that foreground particular ways ofseeing at the expense of others.One narrative that has emerged in recent weeks has sought to connect the fate ofUkraine with that of the so-called ‘rules-based international order’. According to thisnarrative, the gravity and brazenness of Russia’s violation of the prohibition on theuse of force elaborated in Article 2(4) of the UN Charter symbolises the demise ofthe international order more generally.International lawyers have responded to this perspective with at least three counter-narratives, each offering specific correctives to claims that the time has come to writethe obituary of the rules-based international order. No single counter-narrative isdominant, and none can provide the full picture; rather, we suggest, there is valuein viewing these narratives in their multiplicity, each permitting us to gain specificinsights into the relationship between international law and the crisis in Ukraine. Inthis post, we reflect on these counter-narratives and also add our own – one thatstresses the importance of harnessing moments of crisis to ask critical questionsabout the rules-based international order, even as we grapple to alleviate the mostimmediate forms of violence on the ground.Three Counter-Narratives to the Demise of the Rules-based International Order- 1 -One response to the purported demise of the rules-based international orderhas been to caution that extrapolating the demise from Putin’s invasion makes afundamental mistake about how law functions. International law, like domestic law,has never been perfectly adhered to or enforced in practice. As Oona Hathawayand Scott Shapiro have observed, when domestic law is undermined, it is rarefor an entire domestic legal system to be called into question – one may query,therefore, why it should be any different for international law. Moreover, to focuson Putin’s decision to violate the law is to neglect the near-unified response ofother States in condemning the invasion. Particularly notable in this regard hasbeen the passing of a resolution by the UN General Assembly, which ‘deploresin the strongest terms the aggression by the Russian Federation in violation ofArticle 2(4) of the Charter’ – with 141 States in favour, 35 abstentions, and only 5against. These words have also been matched with various forms of action, includingthe deployment of sanctions against Russia. Here, the principal character is theinternational community responding to the aggressor State – and the image toemerge from this narrative is one of a robust international order, which may yetemerge stronger from the current crisis depending on how the rest of the worldcontinues to react to it.A second response has been to caution that to exceptionalize the invasion ofUkraine is to neglect the ways in which Great Powers have long sought to neglectlegal restrictions on the use of force as a political tool. As Nico Krisch has explained,‘in a string of contested military interventions in recent decades – from Kosovo toIraq, Libya and Syria – Western powers have shunned principled and institutionalconstraints and instead used argumentative openness to create space to pursuetheir aims’. While these prior military campaigns neither morally nor legally provideany justification or legitimacy for Putin’s war, they reveal an important point abouthow international law functions in practice. As Krisch notes, ‘in a decentralized ordersuch as international law, the weight of the law is eroded if powerful actors treat itcavalierly’. Here, the principal characters are the Great Powers and the image toemerge from this narrative is one of a bifurcated international order, one in whichsome powers openly ignore rules that all others are expected to obey. From thisperspective, rather than the demise of the rules-based international order, thecurrent crisis reflects the latest episode in the ongoing erosion of the prohibition onthe use of force for certain powerful actors – a trend that may be situated in a climatewhere Western hegemony seems to be giving way to a multipolar world.A third response has been to expand our frame of thinking beyond the prohibitionon the use of force in an effort to surface the myriad other ways in which therules-based international order is implicated in the crisis in Ukraine. Fleur Johnsand Anastasiya Kotova, for example, have revealed how resistance to Russia’saggression is being shaped in significant respects by the international order’sdatafication (enabling tailored and personalised sanctions, as well as the rallyingof hacker networks), financialization (directing attention to, for example, theinternational standards underpinning the Society for Worldwide Interbank FinancialTelecommunications (SWIFT) system), and decentralisation (with leading socialmedia platforms, for example, being called upon to address Russian disinformation).Here, the principal characters include a far broader array of public and private actors- 2 -interacting in a diversity of online and offline settings. The image to emerge fromthis narrative is of a complex and multifaceted international order, one in whichauthority and law are, as Johns and Kotova put it, ‘mediated by money, memesand megabytes’. From this perspective, rather than the demise of the rules-basedinternational order, we appear to be witnessing its operationalisation.Building on these different narratives, we also believe that to talk of the demiseof the rules-based international order is erroneous – because it is very muchalive, its sophisticated rules being applied and further developed in diverseinternational institutions, with cumulated immaterial and material capital and tensof thousands of professional actors, as well as regional and national counterparts.At the international level, for example, significant energy and resources are beingharnessed at the United Nations, the International Atomic Energy Association, theInternational Court of Justice, the International Criminal Court, and the InternationalCommittee for the Red Cross, to name just a few. In a diversity of contexts, then,international law and its institutional practices are at work, both absorbing anddistributing resources, and exercising political power vested in them. Moreover, astends to be the case during crisis situations such as the war in Ukraine, internationallaw and its practices are very much entering a period in the limelight – even if onlyfor a few weeks or months – channelling global media attention, compassion, andefforts to help.Imaging International Law as a Pool of Public ServicesMuch in here may sound as if we were describing a pool of public services, intendedto serve all members of a community equally and in their best interests. We wouldsuggest taking the image of international law as a pool of public services at facevalue, for a moment, to advance our narrative. The image is supported by the factthat when international law operates – producing its (arguably meagre) outcomesin crisis situations – this often happens on tax-payers money channelled from statebudgets. International law’s rules-based order, seen as a basis for public services,can no longer be reduced to unitary sets of big ideas somewhere in between politicsand day-dreams. Nor is it an old lamp, the spirit of which can, when called upon incrisis, present us with immediate miracles.International law as a rules-based order is alive and busy, we claim, but thatdoes not mean it is doing well in providing ‘public services’. There are importantdeficiencies that we are not the first ones to point out. Its services tragically lackin predictability, continuity, and equality. There is far too little stability in what isprovided and for whom, and no predictability of the resources on which internationallaw tries to deliver. There is no systematic control of quality, cost-effectiveness, andaccountability. There is also a considerable lack of transparency.From this perspective, the impulse international lawyers have to evoke internationallaw and its institutions as capable of helping innocent people losing their lives inUkraine risks falling back to the fantasy of the omnipotent spirit of the lamp. As manycritical voices have pointed out in recent days, international law seems to expandor diminish on a barometer of compassion. As before, referring to international lawin crisis situations is likely to create expectations of political and socio-economic- 3 -outcomes that seldom materialise as expected by those directly concerned. Thepromises by the representatives of such poorly directed, randomly controlled, andsporadically funded public services should therefore be kept under constant ‘realitycheck’.Critiquing the Rules-Based International Order in Times of CrisisOne of the dominant impulses of international lawyers in response to the events inUkraine has been to ‘leave no stone unturned’ in bringing to an end the violencecurrently unfolding. Others have also pointed to the importance of prioritising‘short-term’ thinking given the current circumstances on the ground, in particularby attempting ‘to identify pressure points, on international and domestic levels,for compelling Russia to stop the unfolding horror’. We share these instincts, butalso believe that the affects arising from the harrowing reports and visual materialsof suffering should not diminish our willingness to raise critical and fundamentalquestions – questions that probe the impact of particular proposals based not onlyon their near-term symbolic and instrumental effects, but also their longer-term,structural implications.The Method is the Message: Questioning the Creation of a Special Tribunal toPunish the Crime of Aggression Against UkraineIn some instances, critical questioning may lead to the conclusion that, absentsignificant restructuring, certain initiatives are best set aside. For instance, we shareKevin Jon Heller’s concerns about the proposal to establish a Special Tribunalfor the Punishment of the Crime of Aggression Against Ukraine. Beyond thetechnical and practical difficulties of establishing such a tribunal, it is the longer-term expressive costs that such a tribunal would send about the selectivity ofinternational criminal justice that are most concerning. Accountability is importantand, like Heller, we share the aim of holding Russian political and military leadersto account. However, we also believe that accountability efforts will always struggleto be truly credible and just when instrumentalised and pursued in ways that servemore to exacerbate than challenge existing inequalities and hierarchies within theinternational order.Absent accompanying mobilisation to universalise the enforcement of the crimeof aggression beyond the current crisis, the creation of a Special Tribunal bya collective of states that includes those that invaded Iraq with impunity andundermined the crime of aggression at the International Criminal Court (by restrictingthe jurisdictional conditions that must be satisfied for its prosecution) would lacklegitimacy and send the message that only select crimes of aggression are ofconcern to the international community. As Wayne Jordash has put it, ‘Internationaljustice needs less selectivity and partiality, not more, and if we want to see Putinand his men in the dock, let’s focus on what processes we have and support whatalready exists’.More generally, as policymakers turn their gaze towards the institutions ofinternational criminal justice in their efforts to respond to Putin’s aggression, theywould do well to remember that the glow that once accompanied the field has very- 4 -much faded in recent decades as the gap between the over-exuberant aspirationsinvested in international criminal courts and what they have been able to achieve inpractice has become ever wider. Operating under the cover of an idealised globalcommunity, international criminal courts have been structurally unable to transcendthe inequalities of the actually existing international order. The delivery of solemnpromises made in the name of international criminal justice has often been sporadic,partial, slow, and costly – ill-suited to local needs and expectations. The (in)famousjustice of the criminal courtroom is always retroactive. Victims and their communitiesare often led to believe that more is at stake than the public condemnation andpunishment of the accused.  And even if reparations are, at times, accorded, thereare seldom financial means available to enforce the decisions at the level whichcorresponds to expectations and needs, such as the rebuilding of economic andsocial infrastructure.Harnessing Legal Enthusiasm: From Refugee Crises to Global Migration LawIn other instances, critical questioning should lead, not to initiatives being discarded,but to greater reflexivity amongst policy-makers about the selectivity that particularschemes exemplify. For instance, the EU’s unprecedented activation of the EUTemporary Protection Directive has enabled generous protection for those fleeingviolence in Ukraine. Yet, while this initiative is very much to be welcomed andsupported, this should not preclude the scheme becoming a focal point for criticallyreflecting on the disparities that exist between different temporary protectionschemes or the structural deficiencies of international refugee law more generally.As Niamh Keady-Tabbal has observed, ‘The political will that we see to expandand extend protection and rights to certain displaced people is taking place whilepushbacks, illegal expulsions and border violence is going on elsewhere in the EU’.Here, then, the question is how the legal enthusiasm exemplified in the Ukrainecrisis might be harnessed to empower oppressed peoples in other situations acrossthe world – communities that continue to suffer, whether as a result of ongoingmilitary conflicts or as a consequence of the hierarchical relations of domination inthe economic, social and political spheres that continue to characterise the rules-based international order. A particularly useful frame for this conversation hasbeen advanced by Tendayi Achiume in the form of reconceiving the contemporarymovement of certain migrants across international borders as decolonization. AsAchiume explains, ‘the migration as decolonization thesis foregrounds the politicalagency of migrants, and presents neocolonial interconnection and subordination asthe baseline from which the ethics of immigration restrictions should be assessed,and from which these restrictions should be negotiated’.Expanding the Frame: Supplementing Reactive International Law with aPreventive MindsetFinally, critical questioning may also help direct attention towards the ways in whichthe rules-based international order has helped shape some of the conditions ofpossibility for particular dimensions of the Ukraine crisis – ranging from maintainingfossil fuel dependent economies at the expense of renewable ones, to neglectingtransnational kleptocracy, money laundering and corruption. As Anne Orford- 5 -observed some twenty-five years ago, it is important to guard against focusingnarrowly on norms of international law that are reactive to security crises. Such alimited frame of thinking risks focusing attention narrowly on questions of whether,when, and how new forms of intervention should take place, at the expense ofconsidering the ways in which international law has already been profoundlyintervening in shaping the structure of social, economic and political life within andacross states embroiled in a given crisis situation.To return to where we began, in her paper on international law and crisis, HilaryCharlesworth concludes by advocating for ‘an international law of everyday life’,one that enlarges its inquiries beyond crises towards addressing forms of structuralviolence such as the billions of people living without access to basic sanitation andwho are chronically malnourished. Reflecting on Charlesworth’s concerns, we wouldsuggest that an everyday conception of international law requires internationallawyers not only to marshal the vocabulary and institutions of international law inan effort to alleviate the everyday misery of those currently suffering from Putin’swar on Ukraine, but also to shift gear from repetitive crisis-management towardsthe prevention of crises and from expressivism by criminal retribution to distributingmessages of steady everyday construction. Such preventive rationality and dynamicaction to avoid the worst is urgently required, in particular, with regard to the globalclimate crisis.Towards RenewalIn our narrative, therefore, the principal characters are not the international lawyersourselves but the states and people that decide, fund, control and use the publicservices. From this perspective, rather than turning inwards, deploring the demise ofour ideas of a rules-based international order, we should be devoting our energiesoutwards, towards producing renewal:  taking the courage to re-imagine the post-WWII international order, rather than resigning to a bricolage of ad hoc solutions thatmay alleviate the consequences of its flaws in times of crisis. The renewal shouldstrive to address the deep and divisive hierarchies and biases of the existing orderand build a more transparent, reliable and equitable governance. Nothing quick, newor spectacular. Just loads of arduous legal work in a demanding and often violentpolitical environment. Utopia, perhaps, but potentially more promising than rubbingthe old lamp.- 6 -

On Critique and Renewal in Times of Crisis

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On Critique and Renewal in Times of Crisis

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