„For me now, what I’m realizing is
I’m done trying to treat people as if they’re finished beings.
Because we’re all unfinished basically, we’re all unravelling.
So it’s very unfair for me to act like I’ve got you figured out.”
International legal thinking – as Hilary Charlesworth famously put it – gains momentum in times of crisis (Charlesworth (2002)). Thus, it seems almost natural that the ongoing ‘polycrisis’ has prompted renewed and more fervent commitment to the international legal order. A significant number of scholars share that sentiment. In Ingrid Wurth Brunk and Monica Hakimi’s piece on ‘Russia, Ukraine, and the Future of World Order’, they argue that Russia’s invasion of Ukraine on 24 February 2022 is ‘among the most – if not the most – significant shocks to the global order since World War II’. The European Society of International Law (ESIL) in its statement on the Russian aggression against Ukraine warned that ‘[t]o contend that other States – especially in the West – have no better record when it comes to respecting international law is a morally corrupt and irrelevant distraction’.
Simultaneously, Western diplomats, international lawyers, and media outlets seem baffled at the reluctance of many actors in the Global South to support Ukraine.
In light of recent events in Israel/Palestine and Gaza, existing trenches seem to be deepening inexorably. The atrocious attacks of 7 October 2023, in which Hamas fighters massacred hundreds of civilians in Israeli communities and at the Nova music festival and took 239 hostages, dealt another serious blow to any idea of peace and order on the international plane. The brutality of the resulting war in Gaza has reached a degree that commentators consider to be undermining the ‘rules-based international order’, while others argue that the situation Gaza showed once more that thise ‘rules-based international order’ is more a reflection of Western hegemony and of US-American exceptionalism than of international law. South Africa initiated proceedings against Israel due to alleged breaches of the Genocide convention, which the International Court of Justice (ICJ) considered to be plausible in its order on provisional measures. Since 1 March 2024, an application of Nicaragua for proceedings instituting proceedings and requesting the indication of provisional measures against Germany due to alleged breaches of the Genocide convention is pending before the ICJ . With hearings scheduled for 8 and 9 April, it may expand the ambit of erga omnes litigation.
The ongoing crisis mode of international law and its lawyers comes at a price and has its limits (Charlesworth (2002), p. 382 et seq.). Especially, necessary critical reflection seems to be too slow to keep up with the pace of political problem solving.
Picking up the thread of the CIL Dialogues blog symposium, which continues the debate on ‘Use of Force, Territorial Integrity and World Order’ and with a hint to an online Workshop Series on “Underworlds – Sites and Struggles of Global Dis/Ordering” convened by Marie Petersmann and Dimitri Van Den Meerssche as a joint venture of QMUL and LSE kicked-off on 11 October 2023, we at Völkerrechtsblog encourage you to continue to think together about ideas of order and disorder.
For our initial call for reflectiÖns we invite you to submit contributions reflecting on Michelle Staggs Kelsall’s “Disordering International Law” published in the European Journal of International Law (EJIL) last year.
In her piece Kelsall – recently discussed in EJILTalk! The Podcast by Sarah Nouwen, Andrea Bianchi and Luis Eslava – offers the still very timely opportunity to reflect on our underlying assumptions about “order” in international legal thinking. Kelsall elegantly reveals how the use a specific “liberal vocabulary” may hinder critical approaches to international law at re-imagining how order might be constituted anew. She instead proposes to engage in a “disordering critique” by which she asks us to explore “reflective discernment in which norms, conventions and principles [are] determined with reference to a multiplicity of spatial and temporal orders.” (Kelsall, p. 731)
International legal thinking and legal thinking more generally – at least in the West – are built upon ideas of order and systematicity. These assumptions of order and systematicity crucially rely on states as their main building block, an idea deeply rooted in international liberal thought. In the past decades, international legal scholarship has passed through several rounds of re-thinking, re-ordering, and re-systematising (inter alia Abi-Saab, 1999; Allott, 2001; Slaughter, 2004; Fischer-Lescano and Teubner 2004; ILC, 2006; Crawford, 2013; Chimni, 2017). Interestingly, these efforts have been accompanied by an apodictic certainty that order and systematicity always have been and always will be there (inter alia Kadelbach, Kleinlein and Roth-Isigkeit, 2017).
While this assumption has been scrutinized by critical approaches to international law, questioning in particular the merits of relying as a premise on the elusive concept of the state (such as inter alia Eslava and Pahuja, 2020, Knop, 1993), suggestions for an alternative trajectory are rarely fully articulated.
Kelsall, by drawing on the ground-breaking work of Ratna Kapur, explores such avenues and instead of tuning into the seemingly ever-growing number and volume of critical voices, she takes them as the starting point for her reflections. She shows us how public international legal discourse remains saturated with international liberal vocabulary seemingly striving for an end goal of either order, system or stability. She argues that this assessment holds true not only for self-proclaimed liberal thinkers of international law, where we might expect to find these vocabularies but also – and more surprisingly – in international critical thought (Kelsall p. 730).
Kelsall suggests that any critical re-description of the liberal international order – arguably inevitably – will fall back or carry some Western liberal vocabulary residue with it. Because – as she argues “for transgression to work, it must be played out against some form of status quo.” (Kelsall p. 754). As a way to escape this conundrum she suggests exploring “a non-dualist, disordering sensibility” as a response “to the challenge of theorizing holistically while remaining cognizant of these complexities” (Kelsall p. 755).
While we do not know if Kelsall was listening to the album Structuralism recorded in 2019 by the UK based jazz musician “Alfa Mist”, when developing her thoughts, the attitude she adopts seems to run parallel to what the voice in the intro to their song “.44” asks us to consider. Kelsall’s piece and the track “.44” are both welcome reminders to appreciate the “unfinished”, the “always in the making”, the “unravelling” and to interrogate more deeply our urge to order and to develop coherent (legal) systems (see epigraph).
Against this backdrop, we do read Kelsall’s piece as an invitation to listen and get involved, which we wish to extend to all of you. An invitation to follow her exploring the potentials of developing “a disordering sensibility”, side-lining binaries and established alternative, and complementary systems of knowledge and find out if and how we can indeed make “visible to us that which is already visible but seemingly beyond grasp?”(Kelsall, p. 756). More, and at the same time – to critically question her own approach, to think with her and explore trajectories in which the way of thinking she advocates for can be developed further and/or where it might hit a brick wall. Where are the limits of this approach and where and how can it be mobilised most productively? We encourage scholars to either pick up the thread and develop it further or, and in the spirit of Kelsall’s work, scrutinise her “disordering critique” (Kelsall, p. 742) – again, critically.
We invite contributions between 1500-2500 words as well as recorded spoken comments or conversations (audio as well as video). We are interested in receiving single or co-authored and coproduced pieces but also welcome less traditional and more creative contributions.
Please send your contribution reflecting on Kelsall’s piece and ideas of ordering and disordering international law to review@voelkerrechtsblog.org by 15 May 2024.
Dr. Sué González Hauck is a postdoctoral researcher at DeZIM Institute Berlin and Co-Editor-in-Chief at Völkerrechtsblog.
Anna is a PhD candidate at Humboldt University Berlin and holds a scholarship from the Heinrich Böll Foundation. She is currently working as a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law with the humanet3 research project, which is based in Berlin at the Centre for Human and Machines at the Max Planck Institute for Human Development.