International Law, Language and Worldmaking

This is the final post in the mini symposium, International Law in the Current Moment.

The metaphor of international law as a language is commonplace. It is intuitive to those engaged in day-to-day practice, and it is the premise for a range of critical accounts. It is implicit in many diagnoses of international law today—as a language that is everywhere but losing its grip on events, leaving a sort of fin-de-siècle exhaustion (Skouteris). Precisely because the metaphor is so widely shared, it seems a promising meeting-point for reflection, independent of particular projects of recovery or transformation of law’s content. What work does the metaphor do? How does it shape our grasp on what is occurring now, and our thinking about the work of practitioners and scholars in future?

International Law as Language: The Work of the Metaphor

The metaphor is so omnipresent in large part because it ties together so many dimensions of international law. It captures international law’s collaborative quality, and role in mediating facticity: the fact that acts and omissions might have generative or devastating effects, but their apprehension as acts, and operation in international law, depend on the way they are named by their authors and by others. It reflects law’s pervasiveness: the fact that law is not just a discrete set of rules which can be observed or violated, but a whole apparatus which it might be difficult for actors to shuck off entirely in the longue durée—not least because it sustains economic as well as political relations (Koskenniemi). This pervasiveness is linked to a degree of internal systematicity, the way in which foundational concepts and relations are deeply embedded, even if often in tension with each other, and operate as a kind of grammar or syntax sustaining but also disciplining a more fluid and mutable vocabulary. Neologisms are frequent, and some terms or doctrines highly elastic, but they work only if they can be articulated in a minimally plausible way in relation to the underlying grammar—including rules of change. Finally, the metaphor captures the unenclosed quality of language: the fact that anyone is, in theory, capable of taking it up, even if the grammar itself (in areas like sources, law of treaties, state responsibility) give the speech of some actors particular jurisgenerative significance—alongside contingent dimensions of resources, media infrastructures and knowledge production, which amplify some speakers over others.

Exactly how all this works, and to what ends, is of course in the eye (or ear) of the beholder. People have radically different views on how fixed or capacious the language is; on what determines which speakers prevail; and on how to value the thin normativity associated with international law’s role as an instrument of mutual intelligibility and claim-making not reducible to force (whether understood for example as a ‘transcivilizational’ discourse (Onuma), a ‘culture of formalism’ (Koskenniemi), or just a minimally system-bound and multilateral counterpoint to the more discretionary ‘rules-based international order’ (a stance recently taken by Russia and China: Dugard). Despite sharply differing views on this system as a whole, there is a convergence on the basic notion of international law as language that makes it generative to think with and through the metaphor.

Grasping the Present

If we take the metaphor seriously, and look at the level of the language itself—what is happening to (or in) the language of international law—the answer is uneven. This is not surprising. Barring physical apocalypse, languages do not disappear punctually or fade evenly. Their death or desuetude, supplanting or transmutation, is a sprawling, fitful process, and one which it might be hard for speakers to grasp in real time.

There are today pockets of deep and sustained investment in the language of international law. To give just two examples, the wide-ranging and precise synthesis in Obligations of States in Respect of Climate Change (discussed inter alia here, here and here), and restatement of the primacy of self-determination and prohibition of annexation in Policies and Practices of Israel in the Occupied Palestinian Territory (discussed inter alia here, here and here), are vindications of the worldmaking power of legal language—taken up by and invoked in the service of those with scant power in a geopolitical contest. Rules do exist, they work in a system, violations sound in responsibility and remedies. South Africa’s proceedings against Israel alleging genocide in Gaza (and some of the neologisms stemming from genocide: Burgis-Kasthala & Masetti Placci) reflect a similar investment in the disciplining power of legal language.

We also see vast areas in which the language is profoundly strained by contradictions of usage. As Imseis argues, we are confronted by double standards so stark they threaten the coherence of the language itself for a critical mass of interlocutors. Other instances present more discrete and perhaps containable strains, registered as distortion or manipulation of the language, sometimes with some aspiration to change the language, sometimes to highlight inconsistencies in its application, and sometimes with a ‘trolling’ sensibility, a desire to mock the language and its relation to the world it describes.

It is of course in the nature of law as language that the lines between invocation and distortion are up for argument (sincerity not being a requirement of the plausibility of legal claims), and that arguments which strain the accepted bounds of the language might be made to ends that are emancipatory, or repressive, or somewhere in between. To this extent, allegations of distortion or manipulation are simply one byproduct of law-as-language in operation, identifying some propositions as more compelling, plausible, coherent with foundational norms than others—though at scale they may threaten the persuasive potential of the language as a whole.

This variegated and widely experienced strain in the language sits alongside something qualitatively distinct (though, as Becker Lorca suggests, not unprecedented): abandonment or even hard rejection of the language itself. International law has long learned to live with contradictions: para 186 of Nicaragua provides a structure in which all can continue to speak the language and invest it with meaning while acknowledging the obvious reality of violations. And even self-identified liberal democracies have manifested extreme belligerence to international law and institutions before, the ICC having long been a target for animus in this regard. What has struck many as novel now is a broader pattern of flagrant, almost performative indifference to the language on the part of states like the US, which would usually invest some effort in positioning themselves as lawful actors. Violations are often not concealed or justified, or even discussed with any serious reference to law at all. Online commenters intone that ‘killing the citizens of another nation who are civilians without any due process is called a war crime’; the Vice-President of the United States replies, ‘I don’t give a shit what you call it’.

These cases are all, broadly speaking, choices of particular speakers about what to try and achieve in the language, and whether to stay within it or (try to) push it aside. But if international law is a language in some meaningful sense, then interrogation of what is at risk, how it came to be so, and what might emerge in its place, needs to put the choices of individual speakers or states into a wider horizon of changes and apparent alternatives. This brings into view different phenomena, often studied in different literatures, which go to the workings of the language in more systemic ways—and the availability of alternative modes of ordering.

One such phenomenon is the increasing complexity of interfaces (Johns) between human language and new technologies of governance, from quantitative indicators to algorithmic systems, some of which break deeply embedded cultural connections between language, (human) agency and responsibility. Quantitative and algorithmic technologies are in theory capable of sitting within a system of law in which norms are still expressed in human language, but the relationship between the inside of these systems, and the larger frame of norms, may not be an easy one.

Another such phenomenon is the pervasive embrace of approaches often gathered under the umbrella of ‘informal’ governance (e.g. Pauwelyn, Ramses, Wouters). This groups together a huge array of different developments, but the interaction with law as language is particularly evident, for example, in recourse to ‘informal’ agreements. These can look and feel like treaties, but, lacking the alchemical intent to create legal relations, are not themselves expressions of law’s language. Nor are they subject to law’s internal rules (even if, as the ILC’s ongoing work on ‘non-legally binding international agreements’ illustrates, they may have complex legal effects). Informality in general is not new; we should be suspicious of a chronology which depends on when it was named as such in legal or political science literatures. It also has diverse drivers and effects, and may both expand or contract the circle of participants in decision-making. But informal agreements of various kinds are, for example, prominent in the migration and asylum context, one zone in which self-identified liberal states’ commitment to international law is particularly fragile. The UK experience alone suggests that such agreements are often used in this area at least in part to ensure secrecy, at least for the counterpart government (here; for broader context on UK handling of ‘non-binding instruments’ see here paras 96–105).

Putting the creeping influence of algorithmic infrastructures and the refinement of informal law-making in the same frame as, for example, high officeholders not giving a **** about the legal characterization of killing, is of course counterintuitive. These things are not comparable in kind or effects. But if we do take seriously the notion of international law as a language, its workings depend on both the more punctual and localized choices of speakers, and the deeper trends shaping what might be available beyond this language. 

Thinking About Futures

How, then, to think about the more granular question of what international lawyers do now? This is a question individuals will answer for themselves, in very different circumstances, and many of them (as Milanović notes) under increasing constraint. Nevertheless, there have been efforts at offering prescriptions for conduct, articulations of a shared professional vocation. Benvenisti crystallizes a recommendation many have embraced (and which is explored by Fofana): just keep using the language of international law, reiterating as clearly as possible the extent of collective divergence from norms which still, on their own terms, bind. The recent survey by Webb and Kim highlights voices in the UK and US arguing for something more like a planned retreat from the full breadth of currently extant international legal rules, at least for now (as well as other voices resisting a ‘pick and mix’ approach). Tzouvala suggests that the magnitude of the break might invite ‘a reorientation toward [other] legal fields that may be found to be more consequential for new constellations of power’ (p. 16).

One striking feature of these prescriptions is that they are all bound up with implicit views of how law as language works; who its speakers and audiences are; how modular and severable its components; how it endures or not over time. It might be generative, then, to think not only about what is happening with—or what we can do in—the language, but about the ideas and assumptions commonly bound up in the metaphor of international law as language itself. How might the different ideas folded into this metaphor remain connected or come apart? I sketch three paths for practitioners and scholars, but the list is open.

First, how seriously do we take the characterization of international law as having the layered and systemic properties of language as a limit on intelligibility? To put it another way, to what extent can international law be subdivided, bits of the grammar and vocabulary retained while others wither? How might such arguments be made and resisted, on both doctrinal and practical grounds? As Webb and Kim note, efforts to pare international law back to its core norms tend to select quite narrow and contestable core norms. A unilateral paring-back itself is in some tension with international law’s rules on change (though there are complexities here: withdrawing from a longstanding treaty might be perfectly compatible with international law, but symbolically devastating). Even more crucially, some of the norms which would be core on any view are precisely those subject to frontal challenge. If the idea of international law lite fails as prescriptive program, it nevertheless opens questions about the internal dynamics of law’s desuetude. Are there bodies of law which remain ‘more consequential for new constellations of power’, in Tzouvala’s words? The dynamics of an ‘authoritarian international law’ (Ginsburg) are already in view,  but what kinds of entanglements are there between the substructures of capital and trade, and the more spectacular breakdowns of restraints on use of force? (The interconnections between domestic constitutional law, foreign relations law, and public international law are also ripe for exploration: as Gabor Rona has argued, US attacks on Venezuelan boats were both unprecedented and ‘patently predictable’; they did not rest on, but nevertheless thrived in, a legal culture shaped by post-9/11 policies and practices).

Second, what can be done with the language metaphor as a pointer to the sheer extent of  international law’s reliance on coded, and often ambiguous, speech and silence (non-response or oblique response itself being of potential legal significance: Azaria)? To take just one example of particular salience now, politicians and officials speak, for example, of a right to defend oneself, leaving open whether this is really a claim of self-defence under Article 51 of the UN Charter, ‘legal’ or ‘political’ in nature. This ambiguity is perhaps manageable in times when officials have relatively stable understandings of each others’ modes of expression (whether or not these would be evident to the lay observer: law’s intelligibility to the public being an open question). But new dynamics of interstate interaction are putting carefully calibrated wording under unpredictable strain. This sometimes unfolds in real time, as political leaders of allies court the febrile bonhomie of Trump like an errant relative, state power playing out on camera as scenes of intra-familial dysfunction (Marks). One challenge might be recovering the notion of international law as language while putting under greater scrutiny the systemic reliance on particular kinds of speech by particular kinds of officials, read with a certain nuance and artistry dependent on deep immersion in the culture of interstate interaction.

Third, we might probe how far the promise of international law as a culture of formalism is somehow inherent in the likeness to language—or dependent on infrastructural preconditions which are now being tested in new ways. Part of this might be the stance of other states, and in particular the choices governments make about the clarity with which they speak (reactions and non-reactions have effects on the language of law well beyond what would register against criteria for assessing, for example, state practice and opinio juris). Another aspect of this might be the existence of fora in which a norm of non-contradiction can be put to work, officials may be confronted with their own inconsistencies, and with factual evidence which unsettles their account. What are the infrastructures for this discursive accountability, when adjudication is blocked, public platforms are subject to creeping restraints on the material they host, long-range data-gathering and statistics newly fragile? Do legal scholars need to reinvigorate their thinking about, and find a new focus on, factfinding and recording, collaborating closely with those closest to the myriad sites of coercion opening up at present? Might tactics developed by activists and operationalized in human rights and international criminal law—repositories of evidence of violations, sometimes collated electronically, sometimes gathered by victims and bystanders—be reimagined on a larger scale, in ways that open up the community of speakers of international law, and build lines of tacit communication into and out of bureaucracies? These gestures might be not only defensive, predicates for restoration of a prior status quo or retrospective accountability, but part of any renewal or re-founding of the language to come.