Disordering International Law

Since the start of the millennium, critical international law scholars have evinced a deep scepticism towards liberal internationalism and the neo-liberal project that has intensified in its wake.¹ Although this has resulted in a sustained critique of liberalism, most critical international law scholars have not fully let go of the liberal international legal order, despite ongoing disavowals of the same.² In this article, I analyse how international law scholars understand the liberal international legal order and advance critiques towards it. I then propose the concept of international legal disordering. I argue that international legal disordering provides an avenue of inquiry beyond current critiques of the neo-liberal project that moves the goal of critique beyond challenging convention, towards changing it. This seems imperative in light of recent attacks upon the liberal international order and the resort to international legality to respond to them.³

Critical international law scholarship occupies a vast terrain, so before proceeding further, it is important to define the forms of critique at which my analysis is directed. In this contribution, I consider critique in three registers: namely, the critique of international legal institutions; the critique of international legal subjects; and, finally, the critique of international legal ontology. The critique of international legal institutions asserts that the liberal international legal order is unequal, unfair and unjust, and it seeks to expose the practices within that order that result in inequality, unfairness and injustice.⁴ The critique of international legal subjects is levelled primarily at the state and the geopolitics of legal ordering, including how this affects the very ‘international’ character of international law.⁵ The critique of international legal ontology asserts that the nature of reality on which the liberal international legal order is based is false. International law requires an ontological overhaul, in which the primacy of the state-making-international law narrative is dismantled and the confluence between international law, state and economic development is exposed.⁶

I argue that none of these critiques depart fully from the liberal description of the international legal order because, although scholars adeptly expose the confines of that order and its focus on the state, they largely avoid detailing where they stand in relation to jettisoning it altogether. Instead, they largely rely upon a return to liberal vocabularies or liberal protocols in order to make sense of the world that international law governs and conceptualize paths of change. A focus on international legal disordering departs from liberal vocabularies in which institutions and state practice, the rule of law and the universal, rational subject remain central to critique. International legal disordering is understood here as being a process of reflective discernment in which norms, conventions and principles determined with reference to a multiplicity of spatial and temporal orders reframe any understanding of international law.

Generating disorder does not solely comprise interrogating the manner in which international legal order is constituted. Rather, the aim is to interrogate the meaning behind legal ordering itself and to think beyond an indeterminacy critique. Scholars embarking on international legal disordering would therefore ask: how do I understand the arrangement or disposition of people or things in relation to each other? How is ‘order’ determined as a result? What sequence, pattern or method am I imposing, and how does that affect any characterization of ‘legal’ ordering? Whose knowledge is included, whose knowledge is excluded and why? Up to this point, the analysis seems in keeping with critical legal scholarship to date. The analysis does not, however, stop there. The further and final questions to ask are: how does this change any conception of legal ordering that remains central to the practice of international law? And how might we begin to conceptualize that order and practice differently? This return to practice provides a path towards change, which I argue is urgently needed in the current international legal system. In this article, I commence some answers to these questions and hope to open a space for further disordering, premised on a turning away from dominant liberal frames.

A disordering sensibility attempts to break down the binary relationships central to liberal understandings of legal order (for example, self/other, public/private, rights/obligations, domestic/international, masculine/feminine), drawing instead from what Ratna Kapur terms non-dualist subjectivity.⁷ Non-dualist subjectivity is derived from the concept of advaita (or ‘not two’) in the work of Adi Śaṅkara, an eighth-century philosopher. It centres on the unity and continuity of concepts and beings.⁸ It rejects the idea of an either/or binary, instead pointing to the inseparability of these concepts, acknowledging that ‘that which is excluded is crucial to the formation of what is included’.⁹ For Kapur, the logic of non-dualism can be applied to how the liberal tradition understands time, subjectivity and freedom.

Kapur rejects the unapologetic schematization of unilinear, progressive, teleological and Eurocentric history of time as understood in the liberal tradition.¹⁰ Additionally, the liberal subject identified with ‘the body, mind, intellect, memory, emotions, material objects, discourses and social labels’ is conceived as one – a non-fragmented whole – rather than with reference to any individual label defining her.¹¹ For international law, this requires acknowledging the non-state within the state and that which preceded it (for example, Indigenous understandings of the land now known as ‘Australia’, in addition to Australia).¹² Finally, freedom is not acquired through the dispensation of rights. Rather, it is focused on a deeper inquiry that has the potential to bring about insights into the distinctions being made between ‘self’ and ‘other’.¹³ Although Kapur’s analysis is applied to human rights, I argue that the concept of non-dualism has critical purchase for critiques of international law.¹⁴ This is because it provides the opportunity for juris-generative pathways to emerge that move lawyers beyond the liberal framing of the international legal order.

To understand knowledge frames by adopting a disordering sensibility is not to succumb to chaos and illiberalism. Rather, it is to accept the limitations of Western legal knowledge understood through the liberal tradition and to begin the more challenging task of imagining a world in which that knowledge is not paramount. As any new form of ordering cannot yet amount to a unitary legal order, I argue that this endeavour is best framed for the time being as international law disordered. In so doing, I resist the desire to frame any new, alternative grand narrative for international law or to claim to identify a new world order.¹⁵ Yet nor is a disordering sensibility merely a technical pursuit. Rather, international law, disordered, begins from the humble place of learning from non-liberal understandings of law and the international. It does so, however, in order to begin a dialogue about how that knowledge might yet be understood as a source of international law – in its own right and on its own terms.¹⁶

International law, disordered, can be defined as an attempt to integrate non-liberal and largely non-Western norms, conventions and principles – determined with reference to a multiplicity of spatial orders existing over time – into international law. This includes the norms, conventions and principles of communities that pre-dated international law and, thus far, have remained largely outside any characterization of international legal order. The resulting critique ‘arrests the epistemic freefall’ caused by the departure from liberalism by engaging with knowledge paradigms and metaphysical locations that, while distinct from ‘traditional’ understandings of law and the international, have been and were always there.¹⁷ The argument proposed in this article is in favour of deepening our inquiry into these knowledges and hopes to provide a springboard for doing so.

This article proceeds as follows. Section 2 details the disordering sensibility, drawing from Kapur’s analysis of non-dualist subjectivity and explaining its implications for international law. I will explain how a non-dualist subjectivity can begin to reframe time, legal subjectivity and freedom in international law. In section 3, I will draw from the writings of B.S. Chimni and Justice Cançado Trindade to show how a non-dualist concept of time may yet be applied to the critique of colonial temporality in international institutions. Specifically, I will show how Justice Trindade’s conceptualization of opinio juris communis can respond to Kapur’s call to refrain from seeing time as uni-linear. Drawing further from the principle of non-consent in international law that Justice Trindade also considers, I will show how this can be applied to break with the ‘felicitous fiction’ of standardized time in international law.¹⁸

In section 4, drawing upon Anne Orford’s recent work with regard to regional orders and Congyan Cai’s characterization of China as a new great power, I will consider how Chinese non-liberal understandings of ‘rule by law’ (fazhi or 法 制) and ‘rule by man’ (renzhi or人治) might yet inform our understanding of how international law operates. I will consider whether this provides for a novel appraisal of the constitution of administrative order and populist sentiment informing the practice of international law in our contemporary moment. Finally, in section 5, drawing upon the findings from sections 3 and 4, I will illustrate how a disordering sensibility can build upon the...