Rethinking Community in a Divided World: Professor Fleur Johns on International Law’s Shifting Landscape

Rethinking Community in a Divided World: Professor Fleur Johns on International Law’s Shifting Landscape

[The interview was conducted by Klaudia Klonowska, a Ph.D. Candidate in International Law at the Asser Institute and the University of Amsterdam. Klaudia is a member of the research project Designing International Law and Ethics into Military Artificial Intelligence (DILEMA) led by Dr. Berenice Boutin.]

The Annual Lecture held at the Peace Palace is a long-standing tradition of the Asser Institute in The Hague. It is Asser Institute’s flagship event that recognizes the contributions of internationally recognized legal experts who reflect on ‘the condition of society’. In previous years, we have been joined by Martti Koskenniemi, Anne Orford, Andrew Murray, Michael Fakhri, and Brigid Laffan, among others. This year the Asser Institute is welcoming Professor Fleur Johns as the keynote speaker on 25th April 2024. Register here to attend the event.

Fleur Johns is a Professor in the Faculty of Law & Justice at the University of New South Wales (UNSW) in Sydney, Australia. She is also a Fellow of the Academy of the Social Sciences in Australia, an Australian Research Council Future Fellow (2021-2025), a Visiting Professor at the University of Gothenburg, Sweden (2021-2024). Professor Johns works in international law, legal theory, law and development, and law and technology.

Inspired by the title of your keynote for the 9th Annual T.M.C. Asser Lecture – “Connection in a divided world: Rethinking ‘community’ in international law” – the first question I would like to ask is, how do you understand the relationship between the idea of community and international law? And why, as you suggest, may it be time to rethink “community” in international law?

Community, as all international lawyers know, is a recurrent point of reference in the rhetoric of international law and it serves a range of purposes that are well-documented in the literature. It often functions as a legitimizing device, creating a sense of international law having a global constituency, and as a technique for breaking legal questions out of bilateral frames or detaching them from one or other national framing.

We could think of erga omnes partes and erga omnes obligations as one manifestation of that technique. But there is also a long and well-documented history of notions of the international community serving assimilationist and racist purposes in international legal work: most egregiously in the nineteenth-century writing of the Scottish international lawyer James Lorimer, but also elsewhere. Many instantiations of community or efforts to secure community depend on identifying figures or elements that do not belong, and scapegoating, expelling, or suppressing these figures or elements. There is, for instance, a lot of literature on this phenomenon in the context of the war on terror.

My argument in the Asser Lecture is that in recent proceedings at the International Court of Justice (ICJ), we are seeing new articulations of community or common interest in international legal terms that are highly attuned to those perils. These fresh claims are not so much concerned with universalizing legal questions or concerns, but rather with cutting across and wedging open specific struggles and offering other states and peoples a point of entry to them – an opportunity to articulate what is at stake for them in those struggles. This assertion of common interest is directed against versions of community that are arguably underpinning the violence in question in each case. In that sense, we could think of these claims as ‘anti-community’ assertions of community.

This is quite different from a universalizing idea of community, that imagines people transcending struggle into a higher order of unity. I talk about this in terms of an attenuated notion of community, drawing an analogy to an attenuated vaccine. In a vaccine that is made from the pathogens that it is designed to protect against, you attenuate the pathogens. You try to make them less pathogenic and less likely to cause disease. But they still need to remain potent or active for the vaccine to work. This is the idea that I am working with for the Asser Lecture. I am interested, in particular, in recent proceedings that have invoked erga omnes partes obligations and erga omnes obligations, so obligations owed to all other states parties to a multilateral treaty or all other states under customary law, regardless of the harm caused or loss suffered. I am also interested in recent practices of intervention in ICJ disputes, although I talk less about intervention in the Asser Lecture.

I am thinking of The Gambia v. Myanmar, Canada and The Netherlands v. Syrian Arab Republic, South Africa v. Israel, and most recently The Republic of Nicaragua v. Germany. None of these, I think, can be understood as applications articulating common interest or community in universalist or generic terms. Rather, these applications can only be understood by reference to long-standing relationships of allyship and political allegiance informing them, as well as the complex struggles that underpin each of these proceedings. The applicants in these proceedings, in trying to enforce erga omnes partes and erga omnes obligations, do not attempt to sublate these disputes into a higher unity. Rather, these claims really have a diagonal, cross-cutting impetus. They cut through what could otherwise be a bilateral dispute and hook other states into it, highlighting other states’ stakes in that conflict, at least for the time being.

The common legal interest that the applicant states assert in each of these cases is very specific to a certain dispute and a certain forum. These applications are not putting forward a sense of community that is bonded forever and for all time. And this is important and timely, I think, because it could offer a way of breaking logjams in very longstanding and intractable conflicts. It advances a way of thinking and talking about community that takes seriously the perils of community bonding and nostalgia, but still maintains the potency of the idea of commonality. It appeals to “community” while recognizing that appeals to community often reinforce hierarchy and justify violence.

At this moment it is particularly interesting to take note of recent international legal practice around community because community and common interest have become so difficult to articulate and practice in many settings – there seem to be more forces than ever driving people apart at every scale. We have the Far Right in many jurisdictions voicing versions of community that express some of its most pernicious qualities. And we have experiences and vocabularies of community that do not seem fully resolved or well-understood, like the “online community”. What is that in and to international law? We don’t really have a place for it in international legal thought or practice.

The time is right to rethink the concept of community in international law because of these difficulties and the long-standing struggles that are dealt with in each of the recent ICJ proceedings that I mentioned. It seems important, in these dark and divisive times, to explore and pay close attention to these new articulations of what I’m describing as an attenuated community.

Is there a particular case at the ICJ that we could turn to, to help us better grasp how this concept of “community” is used by participating parties?

The case of The Gambia v. Myanmar kicked off these recent attempts to wedge open the idea of erga omnes partes and erga omnes obligations, although there is a longer history to these terms of course. This case is interesting because there is nothing obvious that really connects these two communities, these two nations. They are more than 11,500 kilometers away from each other; they are very different communities—one is overwhelmingly Muslim, the other majority Buddhist but with a small Muslim minority. There is no obvious connection. The Gambia’s action has been supported by the Organization for Islamic Cooperation (OIC), but in the pleadings, The Gambia is very clear that it is not a front for the OIC. It is pursuing this in its own interest, in its own right, while it makes no secret of the fact that it is supported by the OIC. So, this is partially about regional and religious affiliations, but it is not wholly explained by them.

The former Minister for Justice who first got this case underway, Abubacarr Tambadou, talked about the importance of The Gambia’s own history of dictatorship and emerging from dictatorship as something that was underpinning these proceedings. But that is not an entirely straightforward explanation because the current president of The Gambia, Adama Barrow, has himself been criticized for authoritarian tendencies.

As in all these proceedings before the ICJ, the connection being drawn is somewhat fraught. The Gambia’s application is no different. There is nothing purist about it. It seems somewhat underwritten by self-interest, but not fully explicable by that. Yet there is nonetheless this very clear articulation by The Gambia that they have a legally protectable interest in the mistreatment of the Rohingya minority and a majority of the Court has accepted that argument, at the preliminary phase. This represents a powerful reconfiguration of relationships around this experience of communal violence. 

In contrast to many forms of international legal work, this is not a gesture premised on exposing violence that we do not know about. The allegations of Rohingya persecution in Myanmar have been well-documented by many different parties for some time. What The Gambia is doing is trying to use a legal device to reconfigure relationships around that well-known violence and therefore make something possible with a view to its potential resolution.

So, in the case of The Gambia v. Myanmar, what you observe is that the concept of “community” is used in ways that go beyond the traditional categorizations constituted on a regional basis, is that right? 

That is right. It creates a new configuration of legal relations and opens up prospects for forging new alliances around a dispute. As we have seen from the interventions, it invites other states to join the claims, but it does not invite them to form a new institution, get behind some perfect identity of interests, or claim any seamless convergence of values. Instead, the claim of “community” as it is being used is trained on a specific set of struggles and experiences of violence and oppression. The Gambia’s use of international legal techniques invites the collectivization of that experience and enables other states to assert an interest in it and its resolution. They are not saying that because we have so much in common, we are going to do this. 

This takes account of the risks of assembling communities and, thereby, excluding, marginalizing, and expelling people from communities. It seems to be paying careful attention to the history of community-making in international law and recognizes that the violence that is the target of this proceeding is itself underpinned by efforts to secure community. In its pleadings, The Gambia has drawn attention to Myanmar’s “racist and exclusionary vision” of the national community – a community in which the Rohingya are afforded no rightful, lawful place under Myanmar’s citizenship law. Yet The Gambia also recognizes that Myanmar describes its actions against the Rohingya people as efforts to ensure national security or to secure their “own” community. And so, the claims of community are both the target of these proceedings and integral to their formulation.

So far you have discussed the way that language can participate in the making of communities, but your work has also addressed the material forces that partake in these kinds of assemblages. Can you explain how you see physical spaces and digital technologies partaking in these phenomena of community-making that you’re describing?

Yes, this is a great question, even though the shifts that I have been discussing do not just concern language, of course. You are right that my writing has been very much concerned with the material infrastructures and technological interfaces through which international legal work gets done, and the placement and timing of that work. As part of this, I have had a long-standing interest in the city, both as a lens through which to understand international legal relations and communities, and because of the role of cities in sustaining certain practices, arrangements, and ideas in international legal order. The study of cities also offers a way of grasping the effects of digitalization on the international legal landscape.

It is no accident, of course, that the technical and strategic moves that I have been discussing are being staged in The Hague: one of those pivotal cities with which all international lawyers are supposed to be familiar like Geneva or New York. Nevertheless, thanks to the digital connection, the oral argument in these cases is being followed via livestream and is the subject of real-time commentary among people all over the world, making it possible for many people to have some sense of being “in the room”. Conceivably, these technologies have a ‘deterritorializing’ effect on international legal work, downgrading the significance of place, and the city in particular. Perhaps they open up ways for people to participate in debates previously impeded by physical distance. New, cross-border ways of assembling and configuring “community” potentially become conceivable too: the vital role played by itinerant workers in the life of cities, for example, might more easily be attested when digital traces are accumulated and analyzed. 

But then, of course, there are many forces of ‘reterritorialization’ and bordering associated with the digitalization of international legal work as well. Many sites well outside major urban centers – far less well-known and less frequently visited by international lawyers – have acquired great strategic significance for this work. We can think of the placement of data centers, for instance, which often are not so much in the center of cities as on the urban or para-urban fringe. The distribution of this material infrastructure of data processing, storage, and transmission matters enormously for the realization of technological connectedness or involvement, including the capacity of people to access this kind of “in-the-room” sensation. That is because of the role of proximity to data centers in ensuring faster transmission, lower latency, and shorter response times—and this is a very uneven international landscape. There are well over 5000 data centers in the United States and there are around 81 in Indonesia. But international lawyers do not pay a lot of attention to this fact. Distributional analysis along these lines is further complicated by the growing reliance on cloud services to support distributed computing. Resulting dependence on a relatively small number of hyper-scale data center providers like Amazon Web Services is producing further patterns of geographic concentration, predominantly in major cities in China and the United States at the moment. Being “at the table” of sites of strategic, political, and legal significance internationally increasingly depends on access and proximity to this kind of material infrastructure. 

We have several ways of thinking about this in scholarly and professional literature, including in international legal scholarship – most commonly by talking about “the digital divide”. However, I do not think that the digital divide is a particularly useful way of thinking about distributional inequities of this kind. That is because this diagnosis implies that it’s a divide that we can span, we can build a bridge across, and that, once we do so, we will all be on the same plane, so we just need to work consistently towards that closing of the gap. It might be more productive to think about this in a way that’s indebted to world systems theory, to think about the new versions of center-and-periphery dynamics that emerge (center and periphery being key terms for world systems theory). 

Thinking about forms of community, recalling what I was talking about earlier, we might wonder if and how attenuated community could be articulated among the peripheries in this socio-technical landscape – or indeed between center and periphery. But I do not think that we should do so by assuming that everyone has the same objective and that we just need to close this gap and then all will be seamless and frictionless. That idea, to the extent that the language of the digital divide promotes it, is, I think, unhelpful.

That also, I suppose, feeds into the question of how else we can rethink this concept of community beyond, for example, how the ICJ or members of the disputes have done it.

Exactly. I am thinking of not just community, but also of the language of commonality, of common interest. What I am interested in, when we think of the makeup of the term “community”, is the tension that arises between the “comm” (or common) and the “unity” and techniques or practices that leverage that disjunction between those two components. I am interested in the idea that the “the common” does not necessarily always perfectly unify and we do not need to wait for perfect unity – or presume perfect identity of interest, or convergence of value, in order to experience commonality, or for legal techniques of commonality to be activated. And I find that reflecting on the relationship between digitalization and international law opens up ways of thinking about that disjunction afresh.

Your last comment makes me think again about how communities are both about belonging and necessarily also about exclusion, of those that are outside a certain community, outside of a certain attenuation, as you call it, of what is common for that community. Perhaps you want to bring it back to the ICJ proceedings or answer this more broadly – who do you see this concept of community excluding?

At an event in Melbourne in December 2015, I recall the anthropologist Ghassan Hage highlighting the double meaning of collaboration when discussing the politics of anthropological research; it can mean working together but it can also mean betrayal. I think that is also true of the collaboration that is involved in forging a sense of common interest or community in international legal work. There is always an element of betrayal or a kind of double-edged quality to collaboration.

That is something of which international lawyers are well aware. One response in the international legal repertoire is often to think about exclusion in highly general terms. So, to think about the generalized exclusion of women and girls or the peoples of the continent of Africa, and then aim at their generalized inclusion. And that is something I am a little bit circumspect about. I am not sure that this sort of generalized idea of “who gets excluded”, and general gestures of inclusion, are all that productive. Sometimes it verges on meaninglessness, or it can tend towards tokenism and have other sorts of perverse consequences. I prefer more targeted articulations of feminist and anti-racist goals that take account of this double-edged dimension of community-making. This returns to my interest in recent articulations of common interest in the ICJ because the claims made, as I said before, signal a high level of attentiveness to the kind of casting aside that takes place when we create an allegiance. The claimant states are quite clear about why they are advancing these erga omnes claims: to counter specific instances of communal violence. But they know, and everyone knows, that this is a somewhat fraught exercise, that it comes at some sense of peril.

In the case against the Syrian Arab Republic, for instance, Canada and The Netherlands are insisting that they have a legally protectable interest, a legal stake in the torture and violent mistreatment of Syrian dissidents. These states are thus allying themselves with quite a motley array of militant groups opposed to President Bashar Al-Assad that are loosely affiliated in a national coalition, and this includes forces that Canada and The Netherlands would likely oppose very strongly on other grounds. So, it is not a comfortable alliance, and it is also made more complicated by the fact that both Canada and The Netherlands themselves have participated in the bombing of Syrian territory.

They have caused some suffering while working in this proceeding to try to alleviate suffering because they have bombed not just their adversaries. Hence, it is a fraught exercise of allegiance and one that, on its surface, makes clear the marginalization or setting aside involved in any assertion of common interest, which is the double-edged quality that I was talking about earlier. The attenuated claim of common interest or community-making that is articulated in these states’ attempts to enforce Syria’s erga omnes obligations is an allegiance that one could well imagine them stepping back from in another setting.

That is what makes the appeal to a common interest in these recent ICJ applications different from other versions of the international community that we have heard many times in international legal work. It has this fraught, contingent quality, and yet it is a forceful gesture of alliance and allegiance that is trying to achieve something – to change something in the face of long-standing suffering and violence.

In a way, these concepts then are used and misused, as you suggest through your last comments, for very strategic purposes in these legal proceedings. You have already shown this double-edged sword, but what do you think could be the long-term consequence of using this concept in a way of reinterpreting communities? Do you also see risks?

Absolutely. What is fascinating to me is that the risks and perils are at the forefront at the same time as the possibilities. The possibilities that I see are associated with the possible reconfiguration of the sense of common interest around long-standing conflicts. This allows other states to articulate that they have a legal interest in preventing or ending the suffering and violence endured by those most affected by these conflicts, and explore afresh what range of action is available to them to work towards that end.

The possibility of reconfiguring legal relationships around these long-standing conflicts, and hopefully producing new possibilities for resolving them, is exciting, although that seems the wrong word to use amid such devastation. However, the fraught nature of the relationships in question does not go away. As many have pointed out in the surrounding commentary, the applicant states do not come to these conflicts with clean hands or slates. And, of course, there is no assurance that the ICJ will deliver what is sought or that any route to peaceable resolution will open up as a result. In each of these cases, turning to the ICJ is an explicitly experimental, risky move to make, in the face of the unbearable, ongoing devastation of the Rohingya, Syrian, and Palestinian peoples over many, many decades, and the suffering of Hamas hostages and their communities.

Rethinking the concepts of community, as we already spoke about, can impact access to a seat at the table and having a voice in the proceedings. However, could it also be empowering to be cast outside a given community? This question comes from my understanding of your studies on visibilities and invisibilities, where invisibility is not always portrayed in the negative. On the contrary, some have also argued that invisibility can be empowering for entities that want to escape the gaze of another surveillant entity. I wonder if we could speak in similar terms about the dynamics of inclusion and exclusion in community-making.

I have been quite critical of the discourse of transparency in past writing. The aspiration to make the invisible visible is ubiquitous in international legal work, and that is almost always assumed to be a good thing, an emancipatory move. I have been quite doubtful of that for two main reasons. One is that I do not think visibility very often delivers the agency and empowerment that is promised. For instance, in the context of digitalization and algorithmic governance, an argument is often made for making the source code of an algorithm public. But that may be not very meaningful at all. In fact, it is most likely not meaningful without having access to the continuous data streams from which the algorithm in question has learned, and is continuing to learn. It is unclear how and for whom the making of algorithmic source code transparent is actually going to be empowering. That is one illustration of how the assumption that agency follows from visibility or disclosure is often misplaced. 

The second reason why I am not convinced that transparency politics is always productive is because things do not need to be invisible in order to cause harm – this is an obvious point. Susan Marks has encapsulated this well in writing about the “myth of the dangerous dark”: the misplaced idea that bad things happen under cover of darkness rather than in plain sight and that the work of international lawyers should be constantly working to expose the dark to light. Many oppressed and marginalized communities have a very good grasp of this myth; many do not buy into this myth at all. As a result, they may even identify invisibility with relief and protection from over-policing and exploitation. Sociologist Sarah Brayne has written about the phenomenon of “system avoidance” among people who have had contact with the criminal justice system; people who then go on to also avoid system interactions in health care and other settings. Avoiding the system, or being invisible to the system, is often experienced as a form of solace, or self-protection. So, I think that in general terms we international lawyers should focus less on invisibility as a primary mode of injustice. 

That is also one of the reasons why I am interested in digital interfaces that are being used to support decision-making in international legal work – in humanitarian development, for instance – because they are often reordering relationships and altering knowledge practices of governance in plain sight. We do not need to dive into the back rooms where these interfaces have been made to register and engage with their effects and their politics. 

This also applies to recent ICJ proceedings. As I said earlier, these cases are not making visible things that we did not know about. They are reconfiguring legal relationships around already well-documented conflicts and conditions. They are demonstrating the possibility of a politics that is not framed in the optic register of visibility versus invisibility.

Which communities do you identify with, and how do you think you are also creating communities around yourself and around the kind of scholarship that your work represents?

The communities that I feel a part of in international law, and my work, are quite a jigsaw, quite a delightful jigsaw. I spend a lot of time thinking about and working on relationships with students and colleagues.

At the scale of the city, I am very fortunate to live in Sydney, a city with a critical mass of really interesting thinkers around international law across a number of institutions. Beyond Sydney too, the international law community in Australia is relatively tight-knit and supportive and full of people doing terrific work. As Australia is a big place, the international law community depends on the digital infrastructure of connection, although I think that it is crucial to come together physically periodically as well. I think that doing things together is important to sustaining a sense of a common endeavor. Since the pandemic, we are getting a bit better at establishing this sense of “doing things together” or engaging in common work through digital media as well. But, whether in person or virtually, I find it important that these settings of collective work are organized and maintained with care, so as not to be highly transactional or oriented towards fostering quid pro quo relationships. 

There are a great many people from around the globe with whom I feel in conversation, even though we might connect quite infrequently, and I might not keep up with everything that they are doing. These are also people that I have done smaller or bigger projects with; having spent a few intense days together at a workshop or a conference, or having worked together in a reading group, on a publication, or an editorial board, or people with whom I have interlocking and allied projects. 

Throughout my career, I have always been interested in questions of access and alliance, and I am always interested in wedging these communities open in small ways—somewhat as the ICJ proceedings are seeking to do, as we have discussed—and in bringing new people and stakes into the mix. I think it is important to keep redistributing status within academic and scholarly networks and helping to forge new openings and alliances. And on that note, I am very grateful to you for making space and time for this conversation and your thoughtful questions.

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