Otto, Dianne, Proceedings of the Annual Meeting-American Society of International Law
I see this roundtable of discontent as providing the opportunity for us to reflect critically on the theme of this year's Annual Meeting, drawing from a number of critical traditions. While discontent is often disparaged, and its proponents dismissed as trouble-makers and turncoats, I think international law's traditions of discontent are its life-blood, ensuring its continuing dynamism, responsiveness, and utility. While the discipline's discontents have emerged from across the whole spectrum of its theoretical commitments, those represented on this panel belong to the tradition that my colleague Sundhya Pahuja has aptly described as having "critical faith" in international law's potential to challenge established relations of power. (1) The varied strands of discontent that can be gathered under this broad banner provide a productive focus for questioning and disrupting the discipline's complicities with hegemonic, imperial, and gendered power from within the discipline, uncomfortable as that may feel. Discontent, in this sense, arises from deep hopefulness that international law may yet be turned to emancipatory ends; that it may yet provide a means of redistributing power and wealth and knowledge, of promoting equality and social justice and, in Judith Butler's terms, of ensuring that no life is "unthinkable" or "ungrievable." (2)
My particular contribution to this roundtable is drawn from feminist and queer dissatisfactions with the assumptions, conceptual underpinnings, and vocabularies of international law, which order the way that we think about the international community, maintaining exclusionary normative conceptions of who is fully human, while masquerading as objective and universal. My concerns include whether women can ever be recognized as full subjects of the law, and whether it is possible to use the law to move beyond dualistic conceptions of gender (male/female) and sexuality (hetero/homo), embracing both gender and sexuality as social, multiple, and fluid categories. (3) Such moves are necessary to liberate the legal imagination from the bondage of patriarchal and hetero-normative frames of thinking and open the possibility that law can promote, or make space for, gender and sexual multiplicities and freedoms. Such moves are also "dangerous" because they are always susceptible to cooption and reincorporation into the mainstream assumptions. So, like others of critical faith, I understand international law as a discipline of "dangerous possibilities" for promoting more inclusive notions of humanity, community, justice, and equality. (4)
Turning to the theme of this Annual Meeting, I question the idea that complexity is necessarily a problem, and that law's role is to provide "order" and "clarity" by producing legal "rules" which can then be applied universally. Rather than embracing complexity as providing new opportunities for inclusivity and social justice, the Meeting's theme conceives it as "confounding" and as a problem of "confusion" that needs to be confronted and made orderly by legal rules. The theme statement is a perfect case study of an understanding of international law that so many of its discontents have sought to contest. First, law is cast as the solution, rather than part of the problem. Second, law is understood in positivist terms as a set of neutral rules, rather than as a discourse that plays a role in (re)constructing our social realities and has the power to attribute a superior legitimacy to the world it creates. Third, law's universal application is taken as a given, rather than understanding the claim to universality as a site of struggle over knowledge and power.
I think that reconceiving international law as complexity, and rejecting the idea that law is only ever a set of rules that can be applied and enforced in a neutral and objective manner, is essential to the project of law serving emancipatory ends. The potential for a more democratic and inclusive law lies in its complexity and its contestability--in expanding its capacity to take account of many perspectives, to acknowledge the political allegiances of those perspectives, and to craft solutions that strive to be nuanced, contextualized, equitable, and just. …