‘I Want to Put the Social Question Back on the Table’ – An Interview with Anne Orford

On Thursday 29 November 2019, Professor Anne Orford (Melbourne Law School) will deliver the Fifth T.M.C. Asser Lecture at the Peace Palace in the Hague. Asser Institute researchers Taylor Woodcock, Dr. Antoine Duval and Dr. Dimitri Van Den Meerssche had the opportunity to speak with Professor Orford about her ambition to place the social question (back) on the agenda of international law(yers). A conversation on the false necessity of neoliberalism, the material roots of populism and the potential for a progressive politics of international law. On the genealogy of international liberal order and the need for reimagination. On the Wizard of Oz and the Garden of Eden.

[Antoine] Good morning, Anne. Let us start off with a straightforward question: can you tell us more about your 2019 Asser Annual lecture? What will be your main argument?

Yes! Thank you. Until quite recently, I would say that throughout my career, since I started researching in international law at the end of the Cold War, everyone has assumed that there is a certain trajectory for international law – that liberal internationalism was the direction in which the field was heading. This may not necessarily have been something that everyone signed on to but there is a sense – the whole ‘end of history’ idea – that there weren’t really any major questions to be posed about the forms of law and global ordering to which we were heading, even if we did not get there.

And now, anywhere I go (from Beijing or Buenos Aires to the US or my own government capital), there is a sense of this liberal order unravelling. Not everyone agrees on the extent to which it is unravelling. Not everyone agrees whether that is a good or a bad thing. People don’t agree on how to make sense of what the causes are. But I think there is no question that something is coming apart. In investment law, in the WTO which might stop operating next month (at least the Appellate Body), in many regional human rights regimes, there is a challenge posed both externally (from rising powers that might unsettle the implicit balance of the system) and internally (from the rise of populist parties and so on).

How to interpret this is quite difficult, and so you see quite different responses. One answer to what is going on is that there is a cultural reaction. That argument would point to human rights and say that these went too far, that there has been too much opening up of what human rights means and so on. You heard Martti Koskenniemi last year make this argument in his Asser lecture, and there are a range of other people making this argument about this backlash as fundamentally a culture war.

I am interested in the material rather than the idealist side of this backlash. I would say it is as much a material, if not more of a material issue than a cultural issue. I am interested in the way in which social and material issues have really become hyper-visible. It is hard to ignore the riots and protests around the world, which raise economic issues. Currently, in Santiago we hear ‘it’s not about 30 pesos, it’s about 30 years’ and we can see the same thing with the Gilets Jaunes: ‘the question isn’t the end of the world, it’s the end of the month’. These kinds of slogans suggest there is something going on that relates to material questions. I would also characterize climate change as a question of the material limits of our economic system. I think about inequality, financial volatility and even refugees and mass displacement as questions that relate to the material limits of the system under which we operate.

The Asser Annual Lecture will raise this issue in the language of the social question. That is really a 19^th century language – a very ‘Asser-esque’ moment, I would say. This social question is a question of how human life can escape the demands of the market. You could pose that in a minimal way: who is going to look after the poor? But you could also pose it in a much more ambitious form: how do we limit the capacity of the market to demand that everything be sacrificed to its logic? This broader form, I think, is not one that we really see taken up properly internationally.

So, that is the question that I want to really put on the table. And when I say that ‘it is not taken up’, of course, I do not want to suggest that people are not worried about migration issues in international law, or worried about human rights issues. The point I want to make is that trade or investment law apparently does not have to have this social question on its agenda. Because we live in this hyper-functionalized and fragmented world, we have trade or investment lawyers who might say – unlike political economists in the 18^th and 19^th century – ‘I really care about human rights but that is not a trade or an investment question – it has to be dealt with by the human rights or the environmental lawyers. Here we are dealing with technical questions about expropriation or subsidies’.

The language of the social question is a way of trying to bring these things back together in a common frame and say: given that international law, for the large part of at least a century, has been dedicated to this project of liberalization, is there some way to talk about the social question again that does not reduce it to an issue of humanitarian crisis or security crisis? A way that brings the social question back into the trade world or the investment world, into the way in which we think about those systems? And the answer is: ‘yes’ – yes there is a way for law to do this, and the lecture will try to perform it.

[Taylor] Could you tell us how your recent research relates to this social question that you are trying to bring to the fore? I am thinking of your forthcoming book on international law and the politics of history, for example.

This is going to make me seem like somebody who has a little bit lost the plot, but I promise it is true: I have three books on the way. That particular book, International Law and the Politics of History, was initially the first chapter of another book: The Battle for the State: International Law, Economic Order and the Social Question. It turned out that writing a book with the ambition to think about this social question both in the present tense and historically, opened up many questions about how you do that thinking as a lawyer, as opposed to how you do that as a historian. And I wrote a couple of fragments about this in small pieces that caused a response from both historians and legal historians, which led me to write a whole book to explain why I do not think lawyers and historians do the same thing. I think we have different ways of approaching the past and different ways of working with it.

The second book, the Battle for the State, is an attempt to think about how the economic liberal order, since at least the beginning of the 19^th century, has been assembled in part through international law.  I have already published parts of that book in a couple of articles about free trade, which look at the relationship between market liberalization and the social question. This work aims to bring questions of freedom and coercion together. I say this, because I think liberalism is a way of thinking about the world that focuses a lot on freedom and is allergic to a degree to thinking about coercion. And I think in international law, fragmentation really accentuates that. So we think about trade or we think about investment as something quite different to the regimes that govern the use of force, or the freedom of navigation or, indeed, international criminal law. This book brings those things back together, and says that, from the late 18^th century onwards, we do see political economists talking and thinking quite explicitly about how their projects for liberalization of basic goods or land are going to address either the social question or questions of surplus population. By which they tend to mean populations that are rendered superfluous, unnecessary, not useful or dispossessed as a result of market liberalization.

Sometimes when I read arguments in favor of wide-ranging trade agreements, or the reasoning in Appellate Body reports, I think ‘yes, there is a logic to the argument they are making – within its own terms, it makes sense’. So for a minute you think ‘maybe they are right, and everything should be subject to the market’. And then you remember what they are having to put aside… One of the potentials in law is that we always see that. Law makes the loser in any dispute very visible. This is helpful because you see what is pushed aside, left to be dealt with in some other way. Think about investment agreements that deal with privatized resources essential to life. Think about investment decisions dealing with environmental questions that make awards to a company, which might have suffered loss of potential profits due to climate change regulation. Or think about WTO agreements that deal with issues like human and animal health and safety. In each of those decisions, where the dispute is settled in favor of property interests, the decision is made to sacrifice those other questions of human health or the environment. I am interested in what we assume is going to happen in relation to those other questions. Who do we think is going to take them up? Who is supposed to be responsible for human health? Who is supposed to be responsible for the environment? And how are the people who are dispossessed, who are protesting, how are they supposed to be dealt with? How does the investment or the trade regime assume an answer to that?

And now I am working on a third, much more recent, project on populism. It is a book that grew out of a response I gave to Martti Koskenniemi’s lecture at ASIL and that links the current populist moment with this analysis of the social question. I take the current moment as an example of what happens when all these issues of life and death, of human security, are lifted out of the democratic decision-making process and into this world of transnational decision-making. Then we have a populist moment of reaction, which helps us to see the nature of that economic order.

[Dimitri] I wanted to pick up on one thing you said – which is sort of the diagnosis – about the liberal order having been assembled through international law. I want to invite you to say a bit more about how you perceive that relationship. We have a number of rather general theories or assessments about the relationship between international law and neoliberalism or inequality. And these range from international law being the passive bystander, handmaiden, companion or even constitutive rationality of neoliberalism. For Marxist thinkers or even those working in a Foucauldian tradition, law often plays a more epiphenomenal or super-structural role in relation to other forces of social or material ordering. Which role does international law perform in your history of neoliberalism and the rise of inequality?

I would avoid any generalizing answers to the question of how we should think about the relation of law to economic relations. Instead, my approach would be to study how at different points in time international law enables certain kinds of economic ordering through specific techniques, institutions, and so on, and how international lawyers offer broad ideological rationalizations of those techniques and their effects. So there I would be taking a Foucauldian approach to that degree. Foucault helps us to watch for the way in which different patterns hold together in a particular moment. He is almost a spatial thinker about law – he is looking for patterns, he is looking for relations and that really suits how I think. I am interested in tracing how at different slices of time, you would watch these different relations being enabled: rights to certain kinds of property and resources, distributions of value, the liberalization of space (which is really central to the story) and certain kinds of government regimes to ensure that this order can be sustained across the globe. Across different fields – trade, investment, intervention or the liberalization of space – the way law is working is different. And then I try to trace what changes between that moment and the next, so that the function of legal concepts that seem to have moved across time unchanged is in fact completely different as a result of changes in the other parts of the pattern. The difficulty of telling these different stories is that it is important both to sketch these patterns and at the same time to resist the idea that they are somehow necessary – because law in its more repressive modes depends upon the sense that it is necessary to think in a particular way about the rights and obligations that it is setting up.

Let me give an example. My writing on histories of free trade in The Battle for the State retraces how these economic relations were initially facilitated through colonialism and how free trade was one way of coming at the colonial question (and ending colonialism to a degree). In the early 20^th century, this becomes an issue for ordoliberals who start to think about economic disintegration and worry that – with liberalism challenged by anticolonial movements and by the rise of communism in Europe – liberal economic order might disintegrate, and new forms of ordering are required. This was when ordo-liberalism began to be imagined on a global scale. I traced these early ordoliberals, their thinking about international economic order and the way in which they influenced the early GATT through to the way in which the WTO put in place a way of thinking about remaking the state in its relations to the market.

Often when talking about these trade agreements, we assume that the issue is protectionism (to stop the movement of goods across borders). I argued for fifteen years, and ordo-liberalism gave me a way to make this argument, that this is not what trade agreements have been about. Trade agreements, in the language of free trade, have, since the 19^th century, been as much about the internal relations of governance as about external relations of trade. The point is to free the market from certain kinds of constraints from the government, from the state. A lot of people who argue for free trade come at this populist moment and say: ‘well it’s all about protectionism and wanting to put up barriers to the movement of goods’. But in a large part (and maybe this is more so outside the US or Europe), what we see is a process of regulatory alignment through big megaregionals and WTO agreements. These agreements are used to enforce particular ways of regulating services, regulating labour, regulating health. Populism is a reaction to the degree that all those questions about regulatory decision-making and labour relations have been lifted out of the democratic process.

The work that lawyers have been doing on this relationship of ordo-liberalism to international law has now been taken up by historians. So, and I discuss the implications of this in more detail in Politics of History,someone like Quinn Slobodian is really following in the footsteps of international lawyers – me and others – who did a lot of detailed work, largely setting up the argument that he makes. But where Slobodian differs from us is that he simplifies our argument. He makes it seem much more black and white than a lawyer could present it. The challenge that a lawyer faces in trying to talk about this, is that law is not a machine. The WTO is not a machine that you can program and make it work the way you want it to. It is, of course, far more conflicted, there are many more potentials in the law than that kind of story would make it seem. And yet, there is also a tendency, and there has been a tendency, for these agreements to be interpreted with a particular telos in mind – heading towards a particular vision of economic integration. So a lawyer, I think, needs to be able to show how it is that these political choices are made and re-made as a matter of routine as the law is handed on, and also to keep showing that every time the law is handed on, every time there is a new interpretation, those choices are being made again. They are not made for us by some kind of programming back in some historical past, but nor do they depend upon the presence of ideologues overseeing the law’s operation. The law is always being remade. Choices to interpret the law in a particular direction are being made over and over again, but the political stakes of those choices become lost through the routine process of legal transmission.

A long time ago – not a long time, but it seems such a long time now – Anne-Marie Slaughter wrote a piece called ‘International Law in a World of Liberal States’. In a sense, my whole project is to reverse-engineer that. If that’s what international law is in the American hegemonic era, what would it be if it was not being designed for a world of (neo)liberal States? What if it was in a world of social States, social democratic States? What would international law look like then? That’s what I’m trying to think about. I understand Susan Marks’ ‘False Contingency’, and I think that’s also a really important point, but I think the way in which the necessity in law is created has as much to do with lawyers as anything else. So that is us, we are doing that. Those of us who teach lawyers are also participating in handing on the idea that international law ‘locks in’ certain positions that become uncontestable. I think there is political work going on there all the time, and it can be done differently.

[Antoine] I would like to push you on your diagnostic: do we really see things unravel? In the end, we saw CETA enter into force despite a huge mobilisation in Europe. NAFTA survived Trump in a similar structure as before. We can think of Brexit proving extremely difficult for the UK government to implement. And we are then looking at a new trade agreement between the EU and the UK that would be more CETA style and even less social than the EU. Is the liberal order really unravelling?

It’s a good question! What I think is disappearing is the sense of there being no alternative. To have the US blocking the Appellate Body appointment procedure, for example, makes it really transparent that there is no real sense in which the US was committed to this system if it did not benefit their interests in a very specific way. This is why the Trump administration is so interesting: the sense of inevitability, the sense of necessity that everything is locked in, that sense of necessity that trade law or investment law depends upon is being blown up by that administration. The sense that it was all decided long ago and that we have no alternative is being destroyed by the state with the greatest investment in this way of ordering the world. This matters because the rest of us – by which I mean all the countries that are allied with the US – have been persuaded that there is some huge moral and normative commitment that means we have to go along with this even if it is demonstrably not in the interest of a country or its people to keep complying with these trade or investment agreements. So, that is what I think is disappearing. It’s like the Wizard of Oz where Oz comes out from behind the curtain. The sense that there is a moral overlay to this system is disappearing. What remains is a much more transactional or pragmatic sense of why countries sign on to such agreements and how that is going to be explained to the people.

I agree that it’s striking how much these arrangements seem to be able to stay in place, despite a great deal of populist protesting, but it does not seem to me that this can continue. I might be wrong, but unless there is going to be a lot of investment in policing, and much more investment in security and detention, there has to be some other compact reached with people all over the world, than we are seeing at present. That would be the dystopian side of my story: it is always possible to respond to the social question with more criminalisation, more policing, more security, more detention, more border control. That seems to me the dystopian possibility ahead of us right now. We see a language of self-defence being taken up to explain what is happening at the US-Mexico border. We actually see NATO policing refugee movements in the Mediterranean. NATO is a collective self-defence organisation set up under Article 51 of the UN Charter. Think about that for the moment… Collective self-defence of the North Atlantic requires policing boats of refugees from North Africa… Really?!

This is the dystopian alternative. All I can think to do is say as loudly as I can: ‘that is not an alternative! Let’s not do that!’ You know, there is a social question, it is presenting itself as rising, as uprising, millions of people on city streets all over the world, watching each other on social media being on city streets all over the world. The planet is on fire. People are moving. Yeah, we could respond to that with force… But what else could we do?

[Dimitri] More on this dystopia. In your narrative, the backlash is portrayed as a productive political momentum. An end to the sense of false necessity and an opening up of new possibilities. The alternative reading, however, and that’s the one Martti Koskenniemi brought us last year, situates the backlash in a story of white male supremacy and the revolt against loss of status for a particular socio-cultural class. Does this problematise your own qualification of this backlash as a productive moment? Does it make your invocation of left-leaning populism more problematic?

Yes. I would say it is a populist moment precisely – and this is Chantal Mouffe’s argument – because it puts a particular style of politics back on the table, in which you would dramatize the separation between the people and elites in order to try and make certain kinds of arguments. There are various kinds of populism now that are participating in that form. One of them does have these characteristics of the far-right populism to which Martti is drawing attention. He would then set that up – and I heard Joseph Weiler do something similar – as a reaction to something that actually happened in the world: a loss of status caused by the rise of feminism and environmentalism, and refugees, and everything. The argument would be that there is some actual status redistribution to which you can point and say: ‘yes these people have had something taken away from them in terms of status’. But I don’t think this shift has happened. And I think this kind of anger is there all the time – this anger against women, against minorities. It is not something that has happened now and it is not producing this backlash. It has been present all along. I have heard the story about this status question for the last forty years. It is an old story and it does not explain what is happening now. There are many dangers and I do not think that the rise of far-right populists is anything to think about lightly at all. I think it is very serious and extremely troubling, but I just have a different diagnosis of what has produced it.

[Antoine] You described the current moment as a creative moment – or a moment inviting new creative politics. I was drawn to think about the Greek crisis and the rise of Syriza in this context. It was a very small party, became the dominant party and tried to provide a radical alternative in a way. How does their eventual failure to do so affect your story and your perception of the existence of an opportunity for alternatives?

One of the things I have been looking at is the work that has been done by people like Christian Joerges on European constitutionalism. I think his work is so sophisticated, he is such a subtle thinker. He may be the most important thinker about the European economic constitution. He has been thinking about this properly for a long time. A lot of people talking about European constitutionalism are ignoring the economic story. His argument is that we lifted a lot of this out of law after the financial crisis. We are getting to discretionary, almost dictatorial styles of decision-making being made in relation to financial questions. Then we really are getting to something properly troubling, legally and politically.

When I think about creativity and the moment for possibility, I think the European integration project for so long was not something you could really question as an international lawyer. It was seen to be almost an unproblematic good. Yes, there might be a democratic deficit, but there was a powerful consensus around the largely positive quality of that integration project. In that story, I still don’t think there is enough attention being given by those champions of the European project to what the Euro Crisis has done to democracy and law. That should be all anyone with an interest in constitutionalism is talking about in relation to Europe, shouldn’t it? When I say that this is a creative moment, I mean that there is a potential in the law to take up these issues because the law opens onto some sort of democratic process – unless we are in a dictatorship – and it opens onto market relations and onto the social world. The law mediates between these things.

[Antoine] So what do we do, concretely? How do we place the social question back at the centre of international law? Can it be done? Or should we rather go back to the state and use international law to protect much more aggressively the autonomy of the state, the ability to regulate, the democratic process in the state? How do you see it happening?

There are many ways to come at this. We should try to think about participation (or democracy if you want to be more ambitious). We should think about how to reinvent a kind of mass participation process – let’s put it like that. How do you do that? I think there are a lot of answers.

Every time there is international agreement or dispute settlement, you pretty much move into a world of secrecy. That is because international agreements are often thought to involve matters of State, matters of national interest, so they have to be negotiated in secret. Often these big arbitrations are conducted in secret. None of that has anything to do with the way we think about law that is worthy of the name. This would be fine, I guess, for the odd alliance you want to make with another power, but it is absolutely not ok for dealing with the everyday business of government, which is what these trade and investment agreements deal with. One answer would then be to figure out how to open up these agreements to democratic processes. We get to see these big megaregionals two weeks before they are due to be signed, and they are 10,000 pages, and the government says: ‘ok you’ve got two weeks to give feedback’. That is very funny. That is not democracy, obviously. If the answer is ‘no that cannot be done, there is too much at stake for national interest, we cannot open this to participation’, then I think the scope of these things has to be far narrower.

I think we could rethink how collectives can take part in the integration process. One of the things that we notice about investment agreements, for instance, is that the regimes are asymmetrical in terms of who can bring a claim. One sort of collective, the collective that we call a corporation, tends to be able to bring a claim against another collective, that we call a State. We only give certain collectives power. If we look at the Viking and Laval decisions in the context of the European Union, we see how other collectives – in this case unions – are not able to participate in economic decision making. We could think about these collectives and which ones we favour.

Another answer would be to rethink the role of adjudication. We tend to think as lawyers that the ideal of a legal system is to have adjudication. Perhaps we might also think that the ideal of that ideal would be to allow individuals to bring claims. I think that is very questionable internationally, because it makes a lot of assumptions about the political process within which adjudication is embedded, most of which is not true of international law. We should rethink this enthusiasm for adjudication.

[Taylor] Just picking up a little bit on what you mentioned about the role that lawyers have in the way that law is created and also the role that you have as an educator of lawyers. How do you feel that your diagnostic on international law’s role in supporting inequalities and neoliberalism affects your teaching, particularly on international economic law?

When I am teaching lawyers, I always try to make really visible that law is at heart an openly conflictual process taking place as an argumentative practice. The thing that law has going for it is that it is open about this, that law is an openly partisan process, that we can see who wins and loses – and this all happens in a system that generalises the result and makes it public and hands it on for the next round of contestation. We can see throughout history a record of this and that is what law is useful for: a visible routinisation of judgment in a conflictual environment. And I am also pretty clear about the fact that there are these big hegemonic powers that shape the alternatives for the rest of us. So, I’m not really romantic about international law in that sense. I think that there’s a formal commitment to sovereign equality, but states like the US or China have a whole lot more say in how the world is organised than states like Australia.

I am always interested in what options that gives us: how do adjudicators or treaty-makers try to deal with those facts? What is the best you can do with that material? With those facts of the world? Would we be better off with no international law? And how does that all relate to these questions of democracy that I have put on the table? That is how I teach it. I look at every area of the law and every case to study the rich, weird ways in which humans try to address those issues because I think it is endlessly interesting. I really enjoy teaching law students who often seem to be hugely idealistic and interested in those questions. And I don’t put them on the table cynically. I think they are difficult dilemmas and I invite my students to join me in trying to understand the world and think about what we might do, and what they might do. It’s their world after all.

[Dimitri] A final question. With your writing on critical historiography and your plea ‘In Praise of Description’, you have been a methodological inspiration for many international law scholars. Do you experience a direct relationship between the expressed need for methodological renewal in your scholarship and the politics that are driving your work?

Yes, absolutely – I never engage in questions about method just for the sake of it. I always do it because I have a problem that I am trying to resolve. I would only open up new methodological questions because I am trying to think about something and I am blocked. Then I am trying to figure out why, what is stopping me from thinking about this in a way that would be productive. Often, I find that someone or some tradition is telling me that I cannot think about that. I think that happens for lawyers a lot more than in other disciplines. I say this a little bit tongue-in-cheek, but we are a little bit authoritarian in that we really look for authority. ‘What’s your authority’ is a proposition that makes sense in law. We want to know the authority for something and we translate that into the authority of specific lines of thinking. That is why I would open up these questions. Also, very often lawyers are invited to imagine that a question was resolved back in the past. So, you know, Luhmann said that there’s no way back to the Garden of Eden, fragmentation took place, the world has been divided up in functional specialisations, there is no way back to paradise. That would be to ignore that every day – if you are in a room with lawyers talking about X and you try talking about Y – you will be told ‘well no, you cannot talk about Y because we only talk about X’. We constantly reperform the pushing aside of anything we do not want to talk about. We create these closed worlds – to borrow the systems theory language.

We just keep creating the closed world over and over again, and I would always be pushing to open it. I think that would be the relation of methodology, theory and the practice.        

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About the Asser Annual Lecture: Each year the Asser Institute invites an internationally renowned jurist and outstanding public intellectual to take inspiration from Tobias Asser’s vision and to examine – as Asser did in his days – how to respond to ‘the condition of society’. Mutual trust and respect are crucial to the health of any society, especially when it is a heterogeneous one; this holds regardless of whether it is the international society, the European society or the urban society of one of the rapidly growing cities across the globe. A question that Tobias Asser handed down to us is ‘how can law and legal institutions contribute to the cultivation of such necessary trust and respect?’ – a question central to the Asser Institute’s Research Agenda.