response:ability

Anna Tijoux, Niñx

Michelle Staggs Kelsall on Dis:Order

It is a great pleasure to reread and think with Michelle Staggs Kelsall’s timely and provocative article ‘Disordering International Law’. Staggs Kelsall asks us to join her in “begin[ning] the… challenging task of imagining a world in which [the liberal tradition of Western legal] knowledge is not paramount” through an embrace of non-duality (p.732). That world is already here. The challenge, as I see it, is not so much one of “integrat[ing] non-liberal and largely non-Western norms, conventions and principles…into international law”, ensuring that these are “recognized and acknowledged” or “incorporate[d]” (p. 742), as it is one of revaluing knowledge practices already at work in the international legal field, reconfiguring relations of foreground to background or inside to outside prevailing in that field, and amplifying possibilities latent within it.

In these remarks, I will first reflect on Staggs Kelsall’s concern that the attachment to (liberal) order persists in international legal scholarship and practice. I will then engage in two brief dialogues with Staggs Kelsall’s article: first, on questions of temporality; and second, on the article’s approach to the technical pursuits of international lawyers.

My argument throughout is that ordering is not the problem by which international lawyers should be most exercised. Nor is disordering a route to their redemption. Much depends on how prevailing (dis)orders are activated and organised. Rather than aspire to “disorder”, with its implication that we should correctively purge international law of pernicious “vocabularies”, “protocols” (p. 731) and principles, I would emphasise the susceptibility of these vocabularies, protocols, and principles to organising and reorganising. In this, I allude to rich, unruly, and mostly undistinguished traditions of community organising and political organising, including in the legal academy.

Ordering and Disordering in the International Legal Field

‘Disordering International Law’ makes a compelling point that “scholars [who] adeptly expose the confines” and biases of liberal international order often “rely upon a return to liberal vocabularies or liberal protocols in order to make sense of the world… and conceptualize paths of change” (pp. 730-731). This sounds to me to be completely accurate. I have no doubt trundled down this cannibalising path myself in prior work (in my 1995 critique of international human rights law, for example). It is not clear to me, however, that working to engender a “disordering sensibility” in international law necessarily counters tendencies towards liberal attachment. As Andrew Lang has spelled out recently with great patience and lucidity, disordering has been key to the arts of neo-liberal government cultivated and practised by international lawyers since the late 20^th century. “Disordering” is a plausible descriptor for a set of neo-liberal governance techniques that have become ubiquitous on the international legal plane since the 1980s that “routinize critical self-reflection in decision-making systems; valorize[ ] flexibility, adaptation and innovation as key attributes of adequate governance systems; and encourage[ ] continuous improvement through… measurement, peer evaluation, iterative review and revision” (Lang at p.95).

All disordering is not, of course, equivalent. I appreciate that Staggs Kelsall is gesturing towards quite a different sensibility of disordering – one that she experiences in Ratna Kapur’s work on non-dualist subjectivity, for instance, drawing upon Kapur’s reading of the eighth century practitioner of the Advaita Vedānta Hindu-tradition of textual exegesis and philosophy, Śaṅkarācārya (Śaṅkara). Nonetheless, I worry still that ‘Disordering International Law’ lends further credence to the inclination of many international lawyers to equate domination with ordering. Although, contemporary practices of rule in fact operate to a significant extent by disordering: that is, by rendering the world as plural, fluid, porous, and perpetually unsettled. Whereas ‘Disordering International Law’ presumes a proximity between disordering and illiberalism (and counsels readers against fearing that proximity), I would cast disordering and practices of “reflective discernment” (p.729) as integral to contemporary dynamics of liberal and neo-liberal ordering.

The persistence of the misplaced tendency to cast disorder as antithetical to liberal or neo-liberal ordering is problematic insofar as it nurtures a reflex expectation that disordering and associated reflection yield emancipatory, counter-ordering possibilities – an expectation frequently not borne out in practice. Andrew Lang illustrates this by reference to the long-running trade dispute between the US and Mexico over tuna import restrictions and conditions designed to protect dolphins. Successive phases of this dispute enrolled the US in iterative redesign of regulatory measures to meet WTO Appellate Body requirements: a highly decentralised, reflexive process a long way from the “unilinear… teleological” (p.735) ordering targeted by Staggs Kelsall. Likewise, my own work tells many stories of public, private and hybrid actors governing to great effect on the international legal plane through relatively disorderly, distributed, non-dualist practices of prototyping, sensing, listing, and interfacing. Dimitri van den Meerssche and Geoff Gordon have similarly elucidated how much contemporary global governance mobilises rhizomatic “open architecture[s] of adaptation”. The lingering assumption that disordering and multiplicity undo power hampers the advance of critiques attuned to those labile forms of rule to which decades of international legal liberalism and neo-liberalism have given rise.

Temporalities of Critique

If the non-dualism that Staggs Kelsall would have international lawyers embrace “suggests foregrounding that which is continuous and present”, then perhaps this demands a bracketing of the impulse to try to “move beyond” (p. 736) to which ‘Disordering International Law’ continues to give voice. Even as it encourages readers to suspend their attachments to a “progressive” temporality (p.735), ‘Disordering International Law’ continues to urge us forward in time, “[b]eyond [s]tatehood” (p.745), through “ontological overhaul” (p.753), into a “[w]orld beyond” (p.757).

The fact that the article holds to a temporality of progress, sequencing, and succession underscores how difficult it is to delink international legal thought and practice from those rhythms of “living and dying” axiomatic to liberal legal reformism (p.736). Even in the name of “a non-dualist approach”, the article ends up reinstating dualism via an unpassable boundary between “Aboriginal (or Indigenous) law” and “the dominant Western legal tradition” (p. 743). The former is, moreover, seemingly preserved in amber as “law that is ‘raw’ and ‘naked’, beneath later layers of invasion, displacement, destruction” (borrowing from Irene Watson) (p.743 fn 82). This insistence that the now is jurisprudentially layered is laudable, and Watson’s account of Indigenous law attests to its enduring vitality; it is anything but desiccated. Yet, Staggs Kelsall’s tracing of these layers still leans rather too heavily on that very register of dualist universalism that she would have this article’s readers question. “The Dreaming” is offered as an example of “alternative temporal universalisms”, for example (p.742). That is despite Marcia Langton and Aaron Corn having explained that, far from being universal, this term “does not accurately reflect how all Indigenous languages express ideas about ancestral law and spirituality” across what is now called Australia. Registering concurrent potency among incommensurable legalities seems to remain difficult, even though this is ostensibly one of international law’s central preoccupations.

Leveraging the Technicalities

In appealing to “a disordering sensibility” Staggs Kelsall insists that this is not “merely a technical pursuit”, with implicit stress on the derisiveness of “merely” (p. 732). In contrast, I see more potential in the diminutive “technical”. In line with an approach for which Annelise Riles has argued, I have found it fruitful to take the technicalities of international legal work as a central focus of inquiry, locating possibility as well as peril in that domain. Indeed, I have devoted much of my prior scholarship to loosening up scholarly assumptions about the significance and politics of “mundane socio-technical work” to quote from a 2019 article illustrative of those efforts.

‘Disordering International Law’ does not, it must be said, dispense with the technical entirely. Its argument for the reframing of sources of customary international law makes use of the technicalities of international legal doctrine for instance (pp. 741 et seq.). And its discussion of China’s Belt and Road Initiative identifies pluralist potential amid current international legal practice (p. 749). Nonetheless, these arguments are advanced with an apparent aspiration to transcend or make redundant much of the technical classification and verification work in which international lawyers currently engage around sources – to “reconstitute norms, conventions and principles” in a higher-order normative register of multiplicity in which Indigenous and other communities attest to their own laws (p.755). [W]hat counts as law”, Staggs Kelsall maintains, “should be determined with reference to what that community takes for granted as law (and not what international lawyers deem is law)” (p.744).

Staggs Kelsall’s argument for abandoning the technicalities of international law in favour of “what [a] community takes for granted as law” presupposes that communities are well aligned in their “take[n] for granted[ness]”, when they rarely are. How exactly international lawyers should engage in conflict – including violent conflict – amid “a mass of worlds colliding” (p.758), within and between communities, is not made entirely clear. The role envisioned for them seems to be one of making way for multiplicity, and then standing clear. The primary concern of ‘Disordering International Law’ is to invite international lawyers “to disrupt the systemic function or neat arrangement of legal ordering…without fear of becoming illiberal” (p.758). Meanwhile, “necropolitics” proceeds all around in distinct, yet parallel registers of disruption and disorder.

Conclusion

I recognise and have sympathy for the sense, underpinning ‘Disordering International Law’, that international lawyers’ standard repertoires of inclusion, participation, and diversification no longer suffice to meet the difficulties and disparities that they are called upon to address. I have previously called for setting these repertoires aside in large part, or significantly expanding them, to make way for more ambitious goals of dismantling, (re)distribution, democratisation, and deformation. I am willing to sign on to Staggs Kelsall’s view that “any ‘shared imagination’ of a liberal international legal order was never really shared” (p. 735), The same may be said of many of the imaginaries of critical transcendence in which international legal scholars have traded. In this connection, international legal scholars could well make more out of the rich, varied traditions of anarchist social and political thought, beyond what has been attempted so far. I second, too, Staggs Kelsall’s point that the challenge to which we international lawyers must rise is not so much to unearth the concealed as “to make visible… that which is already visible but seemingly beyond… grasp” or beyond question (p.756).

Nonetheless, because of the ubiquity of calls for disordering and disruption amid prevailing practices of rule (whether economic, legal, social, or military), it is incumbent on international legal scholars to be as precise and targeted as possible when partaking of this language or engaging on proximate terms. It is vital to be wary of romanticising alternatives, mindful of their propensity to “become an alibi”, in the cautionary words of Gayatri Spivak. And one cannot write of disordering without struggling explicitly with questions of violence. The latter is a point on which my own work has fallen short, and I believe that ‘Disordering International Law’ may fall short in this respect too, its important contribution notwithstanding.