Theory as Practice in International Law
International law is indeterminate yet, as Koskenniemi argues, it is also structured around a series of ‘embedded preferences’, fostering ‘structural biases’ and limiting the range of possible outcomes. Consequently, international law operates to include some and exclude others. If one accepts this argument, the need to pursue an alternative vision of international law, or perhaps even alternatives to international law, becomes clear. This leaves the critical thinker in a dilemma. Does one use and shape the powerful discourse that is international law? Or is its structural bias so inherent, that, in the end, the only pathway left open is to turn away from it?
This is one of the core themes I discuss in my monograph, Feminist Theory and International Law: Posthuman Perspectives, where I primarily frame this issue through what feminist international lawyers Kouvo and Pearson term resistance and compliance. This terminology describes the tension feminists face when working within the international legal system, seeking change from within, versus working beyond the constraints of that system to reimagine international law. This is not an unfamiliar framing. From analyses of the tensions between theory and practice (discussed below), to discussions of ideal and nonideal theory, to debates on the difference between strategy and tactics, these tensions have long haunted the critical scholar and, interestingly, each contribution in this symposium relates back to it at some point. Martínez Esponda, for example, while finding my analysis of the exclusionary humanism and anthropocentrism that underpins international law persuasive, argues that international human rights law can address exclusion. Sanghi, on the other hand, finds the queer theories of the nonhuman I use in Chapter Four ‘tantalizing’, describing my use of theory as ‘an actant’ or a ‘dynamic process that alters lived realities.’ However, she notes that she sometimes struggled to see how such theories could apply to contemporary principles in international environmental law. Johns, on the other hand, comes to a very different conclusion, asking me to reflect further on what happens to posthuman feminist theory itself when it is used for law and policy change. Herzog and Hammerschmied call, however, not for a focus on theory, but on history. They note the complex histories of feminist engagements in international law pre Charlesworth, Chinkin and Wright’s formative text, while also highlighting the need to further analyse how many principles in international law were initially created by an elite few, being steeped in colonial histories. While Martínez Esponda and Sanghi call for more praxis, Johns calls for more theory. Herzog and Hammerschmied, with their focus on history, sit somewhere in between, noting how an analysis of alternative histories may foster new ideas in both theory and practice.
The tensions between theory and practice indeed haunt the monograph which is both a reflection on how feminist approaches can be used to analyse all areas of international law, not just those that pertain to women’s lived experiences and their participation decision-making processes (with feminist approaches having come to be primarily associated with such analyses in recent years), and a reflection on how theory helps re-imagine the world as we know it. I reflect on the uses and problems of using theory as praxis throughout the monograph, which ultimately concludes by centring this tension rather than seeking to ‘choose’ or maintain a sharp distinction. This conclusion is drawn in conversation with a wide array of scholarship. For example, employing the work of Foucault, who rejected the separation of theoretical and practical knowledge, international relations and STS scholar de Goede astutely argues that ‘[c]ritique cannot lay claim to a position outside of the practices it aims to challenge’. De Goede calls for more nuanced understandings of practice and critique that work across contradictory positions, challenging binary definitions of theory and practice. Drawing on these scholars, alongside the work of philosophers such as Haraway and Braidotti, and queer theorist Esteban Muñoz, in the monograph I conclude that reworlding, imagining worlds otherwise, can also be a practice, one that enables the construction of alternative futures.
While Johns, in this symposium, is wary of what she sees as my possible instrumentalization of posthuman feminist theory, Elander views my monograph as an ‘invitation’ to think through how, following Haraway, one can ‘stay with the trouble.’ Staying with the trouble, I argue, noting the tensions between theory and practice outlined above, means seeking multiple strategies, keeping in mind longer term goals while working to change, challenge and dismantle the system from the inside too. To use Elander’s words, this is an invitation ‘to not shy away from the difficult but to stay in the present, and build alliances and collaborations.’ However, and as Elander highlights, this invitation is not unconditional, but is limited by the ethics of posthuman feminism. Posthuman feminism is deeply connected to the need to tackle inequality in terms of both exclusionary humanism (e.g. gender, race, class, ableism) and anthropocentrism – the idea that the human sits in hierarchical supremacy over the nonhuman. The longer-term aim for structural change then, is clear. Quite how one gets there is less clear.
My refusal to ‘choose’ between or maintain a sharp distinction between theory and practice, however, certainly does not preclude the need to also focus on, as Johns notes, and as I conclude in the monograph, the fact that the structurally biased system of international law and all its assumptions must be re-thought and dismantled. This is no easy task, and few have been bold enough to truly attempt it. There are, however, two key scholars who come to mind when I think about people who have been bold enough. It is no coincidence that both these scholars are feminist thinkers.
The first is queer feminist thinker Dianne Otto. While many examples of Otto’s work could be used, a good example of how she seeks to radically reform and possibly even dismantle international law can be seen by examining her 2020 article entitled ‘Rethinking ‘Peace’ in International Law and Politics from a Queer Feminist Perspective.’ Noting that the aim of ‘universal peace’ hoped for by the drafters of the UN Charter in 1945 has not been realised, arguing that this is due, in part, to the approach of the UN Charter itself, Otto turns to alternative stories of peace (which she defines as ‘the realisation of social justice and equality for everyone’) with the aim of thinking international law through peace. One such alternative story for peace that Otto examines is that of the San José de Apartadó Peace Community in Colombia. ‘Borrowing from international law, but with very different motivations’ (to quote Otto), in 1997, this area was declared by the community as a non-aligned demilitarised zone that was thereby deemed off limits to armed groups. Other communities followed suit, with some drawing inspiration from other international norms to create, for example, ‘areas of biodiversity.’
As Otto argues, the ‘existence of the community is itself evidence of the possibility of creating a new world’ despite the many challenges the community has faced, including repeated attacks by paramilitary and national armed forces. Otto highlights the ‘feminist queerness’ of these communities, who reject the gendered dualism of war and peace, seeking, instead, disarmament and fostering solidarities between one another and their environments. Otto therefore provides an example of how peace can be thought and done otherwise, fostering an alternative vision of peace that starkly contrasts with the militarised underpinnings of the UN Charter.
The second thinker that has been bold enough to begin to imagine beyond the constraints of international law is postcolonial feminist scholar Ratna Kapur. Critical of the human rights project, which she sees as a tool for governance, working to exclude as much as it includes, in Gender, Alterity and Human Rights: Freedom in a Fishbowl, Kapur seeks to re-think freedom beyond a liberal register by focusing on an array of non-liberal theories, such as the tradition of non-dualism found in the Indian philosophy of Advaita. Kapur likewise uses several case studies or figures who have sought freedom in non-liberal registers, including key spiritual figures. In the end, in searching for freedom beyond the liberal fishbowl of international human rights law, Kapur ends up well beyond the law.
Both Otto and Kapur, in these ground-breaking works, provide a means to think beyond the constraints of international law by turning instead to the local. Of course, these works must be read within the context of both authors’ wider scholarship, which can be read as an effort to navigate the tensions between resistance and compliance. However, what can be gleaned from reflecting on the above discussed pieces is that there are potential issues with such interventions and the turn to the local, the main one being that, in seeking to deconstruct and move beyond international law, both end up leaving international law behind.
It consequently follows, as scholars such as Baars have argued, that maybe what is truly needed to dismantle these structures is not to think about international law at all. Otto and Kapur both turn to the local – be that through examining local political movements or through a more spiritual focus. Likewise, the need to foreground the local is one of the insights I come to my monograph. I do this in Chapter Five, where I discuss the rights of nature. Here, it becomes clear, in conversation with Indigenous thought, that to be able to apply the rights of nature in a meaningful way, a different epistemolgical grounding is needed, one that centres connections between people and place, human and nonhuman kin in place. Any move to the international risks severing this connection and thereby losing, as I have argued with others elsewhere, the initial radicality of the rights of nature project and its original origins in Indigenous knowledge. As Natarajan highlights in her symposium response, this may be more of a challenge for some than others. While for Natarajan, the ‘oneness of all things’ and the ‘rejection of dualism’ is inherited from various texts, for me, as a white European scholar, wanting to foreground this knowledge, ensuring that I do not contribute to its all to familiar erasure, while also avoiding the appropriation of this knowledge, requires constant reflection.
While it is important to search for alternative epistemologies, alternative ways of living, of being free of the structural biases of international law, there are many ways to do this. This can include thinking with international law and seeking critical ‘footholds’ where more radical ideas can be inserted. It can also entail thinking against, yet still about, international law. However, as international lawyers, we have a duty to speak back to our discipline. To draw on Amoore’s words, ‘there is no great refusal’: our lives as critical thinkers are constantly caught between resistance and compliance and, as such, we must search for ‘a plurality of resistances’. However, as international lawyers, who have had the privilege of being trained in a particular field, one that holds power, we have a responsibility to search for those modes of resistance both within as well as outside of international law, and to use our voices and privileged position to speak back to international law.
I would like to thank the editors of this symposium, Lys Kulamadayil, Sebastian M. Spitra and Isabel Lischewski, as well as the authors of the contributions. It is a real honour to have my work engaged with by such a fantastic group of scholars.