The Ethnographic Turn in International Law: Vernacularisation as a Path towards Reform?

[Moritz Koenig obtained his PhD in law from SOAS, University of London and is currently working on a research project on the history of Dutch colonial law schools.]

It has often been argued that international law and international legal scholarship are incapable of reforming themselves. David Kennedy has argued that supposed renewal in legal argument is usually simply a recycling of old ideas and Nathaniel Berman, in a famous essay on empire and international law, has advocated for a genealogical account of international law. In this way, he argued, we could identify the repetitive violence of international law instead of falling for the false promise of ‘restatement-renewal’. Many other scholars have repeatedly argued that international legal scholarship is plagued by the same issues of coloniality it has struggled with since its inception. And while this certainly holds true in the sense that power imbalances are still present and that international law is still underwritten by capitalist expansion, I argue that the recent ethnographic turn has shown us a way towards genuinely reformed international legal arguments.

The increasing disciplinary openness that has accompanied international legal scholarship especially over the last decade has led to an explosion of ethnographic engagement with the everyday lives of international law across a vast geographical scope, especially among marginalized communities and social activists. Prominent symposia have been held exploring the possibilities of this conjuncture and authors such as the pioneering Sally Engle Merry, Luis Eslava, Vanja Hamzić, Sumi Madhok, and Ayça Çubukçu have highlighted the multiple localizations of international law by experiencing it through the same cognitive categories as their interlocutors do. In other words, such scholarship has led to a vernacularization of international law that goes beyond what has been coined the ‘empirical turn’ in international law which is predominantly concerned with the efficacy of international law. Instead, the recent rise in ethnographic engagement is expressly interested in questions of power relations, subjectivity formation, and subaltern narratives.

These complex narratives of international law’s everyday life do not amount to simple ‘alternative’ ways of imagining law. Instead, they highlight the multiple ways of actively living with and against international law – they demonstrate engagement and contestation, accommodation and resistance. We have been shown the multi-faceted struggles of people fighting for local causes through the vocabulary of international rights while also calling attention to the pernicious nature of these same mechanisms. This indeterminacy of international law in combination with the fact that the main protagonists of these narratives are rarely trained lawyers but community organizations, public interest groups, or marginalized communities, ethnographic engagement with international law has led to a collapse of the old binary that has dominated discussions in international legal scholarship of how arguments should be constructed, i.e. doctrine v justice, formalism v fairness, or hard v soft law. Indeed, the categories of doctrine and justice themselves have been dissolved and made more fluid.

As such, ethnography has demonstrated how people have created diverse arguments about and lives around international law. These cannot simply be categorized as either originating from doctrine or conceptions of broader justice. Rather, they always incorporate both aspects while never being vehemently committed to either. Vernacular international legal arguments are shown to be loosely based on doctrine by invoking specific principles without being dogmatic while at the same time turning to multiple conceptualizations of justice that are grounded in material realities, not lofty ideals. A few examples may illustrate this point.

In Eslava’s account of the everyday operations of international law in Bogota, he has investigated how dwellers in informal settlements have opposed the city’s development plans, themselves a manifestation of local authorities enacting the political, social, and economic concerns of international law. Eslava has demonstrated that community organizers proficiently invoke rather detailed notions of human rights law and sovereignty to contest locally significant issues such mapping exercise for the purpose of spatial reorganization, threats of eviction, and inadequate housing. At the same time, key ideas of human rights law such as justice and fairness are turned to through collective action, for instance, in celebrations of Human Rights Day. The goal of such initiatives is thus not to disengage from law but rather to transform legal institutions into vehicles for conversation. Eslava has argued that by strategically deploying human rights law, residents in Bogota have consciously inscribed themselves into international legal subjectivity.

Maja Janmyr has shown how international refugee law has been localized and internalized. With a view to refugees in Lebanon, she has argued that doctrinal categories are usually not sufficient to capture the experience of refugees as she unpacks the local struggles behind the making of locally adapted refugee law. Engaging with Sudanese refugees, Janmyr demonstrates how refugee activists nevertheless utilize the doctrinal language of international law while negotiating a treacherous political context. Refugee activists are shown to be highly aware of international legal procedure and intervene in specific issues such as the reopening of old case files, the speeding up of cases, and a smoother resettlement process, all the while advocating for broader principles such as non-discrimination, for instance during sit-ins and other forms of collective action.

In her account of gendered human rights struggles in South Asia, Madhok has argued that marginalized communities, such as Adivasi women, have strategically resorted to human rights law while adapting it for their own purposes. Struggling with issues such as hunger, welfare, and citizenship, human rights law is not seen by marginalized women as an end in itself but rather as a ‘field of possibility’ that can be filled with locally rooted meaning. In the process, both local development and human rights law can be continuously redefined through the creative deployment of novel political and rights-based vocabularies.

Martti Koskenniemi has stated that international law is ‘in constant movement from emphasizing concreteness to emphasizing normativity and vice versa without being able to establish itself permanently in either position (p. 65)’. But this is exactly the point of ethnographic engagement with international law – there is no need to permanently establish itself as either to gain legitimacy. Whereas Koskenniemi argued that indeterminacy constitutes an obstacle to international law’s legitimacy, ethnographic accounts have shown that popular legitimacy or illegitimacy depend on a constant recombination of these two notions, they are constantly deployed in creative rearrangements. Ethnographic accounts of international law’s everyday life have shown that this is the ultimate source of the law’s productivity. As such, international law is constantly being developed in the face of indeterminacy but without its actors having to conform to a ‘culture of formalism’ which Koskenniemi has proposed as a way of learned engagement with international law.

Koskenniemi has also argued that ‘alternative’ visions of international law are notoriously difficult to create. Non-Western accounts of international law are usually put forward by lawyers who are nevertheless trained in the Global North and thus must comply with Eurocentric conceptual confines. He then argues for a pursuit of ‘autochthonous forms of thinking about inter-community relations that would […] stand on their own’ (p. 5). However, this binary of international law in which non-Western conceptions either reproduce colonial categories (through a culture of formalism) or constitute sui generis accounts of law are reductionist and essentialist as they lead to representations of non-Western international law that is either the result of docile derivativeness or primordial othering.

On the contrary, ethnographic accounts of international law show that neither do the movers of international law have to be trained lawyers imbued with a sense of professional duty nor do they have to put forward autochthonous visions of law. Nevertheless, they are competent users of the vocabulary of international law and adapt it to local circumstances. The indeterminacy of legal ethnography demonstrates that marginalized people and social activists often act as vernacular lawyers that have both, an appreciation for and knowledge of doctrine as well as a locally rooted sense of justice. Vernacular legal argument thus does not have to be posed as a counternarrative to international law but as being in deep conversation with it. It highlights the myriad trajectories of modern international law in which the old binary of doctrine v justice is dissolved.

Thus, ethnographic indeterminacy has allowed us to glimpse the multiple, and at times fleeting, political subjectivities crafted out of an encounter with international law. Indeterminacy is not a hindrance for the legitimacy of legal arguments anymore but immensely productive of vernacular legal arguments. As Eslava has noted with a view to community organizers in Bogota, legal norms are ‘political texts that invite people to be involved in their production and application (p. 276).’ Therefore, ethnographic engagement with international law has shown us a way towards genuine reform based on vernacularity and the adaptation of law to local material realities. In this way, Kennedy’s old lament of international legal argument simply being more of the same can finally be dispelled.