Beyond Containment – Confronting Racial Hierarchies in International Law: The Slow and Benevolent Violence of International Law – An Oceanian Perspective

Pacific state, regional organisation and civil society leaders are preparing for the annual Conference of the Parties (COP) of the UN Framework Convention on Climate Change (UNFCCC). Going into COP30 in Belém last year, they were hoping that Australia would be made the host of this year’s COP31 to make it a “Pacific COP” where Pacific states, those most affected by the crisis, could “help shape the global response.” 

While the Australian government bid for the COP, there were concerns it was not doing enough to challenge Türkiye’s parallel bid. Palau’s President, Surangel Whipps Jr, even publicly urged Australia’s Prime Minister, Anthony Albanese, to fly to Belém to “close the deal”, which he declined to do, eventually leading to Australia’s withdrawal, a move Papua New Guinea’s Foreign Minister Justin Tkatchenko decried as “disheartening.” As a compromise of sorts, Australia will preside over the negotiations, which it stated will “give Australia and the Pacific unprecedented influence over multilateral deliberations and actions of the global community.” 

The potential of COPs is almost always outweighed by their reality. Last year’s COP30, for example, was also disappointing because of the omission of any reference to the ICJ’s “historic” advisory opinion on the obligations of States in respect of climate change from the decision text. Far from being accidental, states like Saudi Arabia reportedly made inclusion of the opinion a red line and refused to discuss it in negotiations. Even the COP30 president, Brazil, removed references to the opinion from the text leaving many to ponder whether COPs are forms of pantomime action. 

But despite another “failure” of a COP, and ongoing attempts by the US to derail Vanuatu’s efforts to pass a resolution promoting the implementation of the advisory opinion at the UN General Assembly, Pacific leaders appear hopeful and determined to advance their struggles for climate justice at COP31 this November. 

This cycling from hope to disappointment and back again is nothing new for us Pacific peoples (or Oceanians as I refer to us, drawing on Epeli Hau’ofa) and other Indigenous and racialized peoples. It has always been the inescapable reality of our engagements with the UNFCCC and international law more broadly. In my chapter in Emancipating International Law, I argue that the UNFCCC’s COP is one of the ways in which international law inflicts slow and benevolent forms of violence. These more psychological dimensions not only operate to inhibit climate justice for Oceanians and other Indigenous and racialized peoples, but to prevent it altogether. It does this by enacting various myths about international law’s capacity to achieve such justice.

One of these myths is that Global North states are committed to, or even interested in, working towards climate justice. To illustrate, Australia deploys benevolent rhetoric underscoring its commitment to working with Pacific states at COP31. Yet, it effectively gave up on a Pacific COP, undermined Pacific states’ arguments in the ICJ climate change proceedings, and repeatedly approved coal mine expansions as its emissions continue to soar. The other myth is that climate justice takes time and requires incremental progress in international law. We witness this regularly with the putatively altruistic statements of COP decision texts and UN press releases. Each year since the 2015 Paris Agreement, they promise further progress on loss and damage funding by the next COP, all while major emitting states sidestep their obligations to support funding. 

My suggestion is that naming these myths allows us to recognize that climate justice cannot be achieved via international law, and that it will only ever provide the fora and mechanisms for ruling classes to inflict multi-dimensional violence that is not just systemic, structural, institutional, and physical, but psychological in robbing us of our ability to dream of and imagine a world beyond international law. 

Taking this argument seriously leads us to consider the tricky question of whether Oceanians should now mobilise against international law rather than within it. As this is not an easy one to think through, it may be helpful to explore two somewhat more manageable questions.

First, what roles, if any, can Pacific states and regional organisations of nation states like the Pacific Islands Forum play in resisting international law’s violence or, moreover, mobilising against international law altogether? I ask this because Oceanian engagements with international law are driven and made possible by Pacific states and regional organisations, which are deeply dependent on international law and vice versa. Like other postcolonial theorists lamenting the tragedies of formal decolonisation, Hau’ofa argued that the introduction of nation-states and regional organizations in Oceania did not produce “real national sovereignty” as many think. Rather, they have led to Oceania’s “integration” into the West-led regional and global order, which secures the power of “ruling groups” of Oceanian elites, or comprador bourgeoisie to adopt Marxist terminology. This ”‘integration” manifests in several ways, including in Pacific states’ complicity with Indonesia’s genocidal settler-colonial regime in West Papua, and their support for the US-Israel-led Zionist entity at the General Assembly during its livestreamed genocide in Palestine and the wider region – while simultaneously advocating for human rights, like the right to self-determination, in the ICJ climate change proceedings. 

These contradictory positions are not only nonsensical but are actively opposed by decolonial feminist movements in Oceania who understand the deep interconnections between Oceanian and Palestinian struggles against empire. My suggestion then is, if nation-states and regional organizations in Oceania are unwilling to resist against the violence of international law and stand in solidarity with other intertwined struggles of Indigenous and racialized peoples, we must imagine, dream, and work towards futures beyond them.

This leads to the second question: is it time for Oceanians to pursue forms of counter-violence, and if so, which ones? I ask this because liberation movements in Oceania, Palestine, Yemen and beyond have long had to engage in counter-violence against the entities seeking to annihilate them, particularly because the mechanisms of international law supposedly designed to protect human rights and prevent genocide ‘fail’ to do so. These movements have had to bravely confront the immovable truth that international law is never coming to save them and that there are no consciences for them to appeal to. To quote Frantz Fanon’s timeless thesis that many of us keep trying to forget, but can no longer ignore –

“[c]olonialism only loosens its hold when the knife is at its throat … Colonialism is not a machine capable of thinking, a body endowed with reason. It is naked violence and only gives in when confronted with greater violence.”

The idea of enacting or supporting counter-violence is likely to be opposed by many Oceanians for several reasons. It may be perceived by some as antithetical to the so-called ‘Pacific Way’ — an institutionalized regional identity based on traditional Indigenous norms around collectivism and relationality that promotes non-violent consensus building in regional and international fora. Others may dismiss it as impractical, infeasible and inappropriate in Oceanian contexts. 

Despite these and other concerns and considerations, I argue that it would be unwise for Oceanians to reject the necessity of counter-violence. It is no coincidence that the imperialist and capitalist entities carrying out and facilitating genocides in Palestine, Oceania and around the world in apparent ‘violation’ of international law, are also simultaneously escalating the climate crisis and preventing climate justice through international law. This connection reveals the work international law does for empire and the material interconnectedness of all liberation struggles against it. It also makes clear that armed resistance movements against empire in Palestine and beyond are effectively dismantling the entities responsible for the climate crisis and strongly suggests that such forms of resistance should be undertaken or at least supported by Oceanians as well. Indeed, it could be that counter-violence does not need to be physical or militarised, and that complementary psychological, slow and benevolent forms can be taken up as well. 

More fundamentally, various Oceanian laws and norms make clear that all peoples, living things, lands, and waters are deeply connected to each other. For example, for us Samoans, the concept of the va is widely understood to underpin all our relations with each other and the world. As Albert Wendt explained: 

“[Va] is the space between, the between-ness, not empty space, not space that separates but space that relates, that holds separate entities and things together in the Unity- that- is- All, the space giving meaning to things … A well-known Samoan expression is … “teu le va” Cherish/nurse/care for the va, the relationships. This is crucial in … cultures that value group, unity, more than individualism.”

In my view, this and other similar Oceanian norms follow that we are obligated to honour and nurture our connections to Palestinians, Oceanians and other Indigenous and racialized peoples being forced to enact counter-violence against the entities seeking to annihilate them. Failing to do so would breach our laws and norms and who we purport to be as Oceanians. In any case, while enacting or supporting counter-violence might appear outrageous, unnecessary, and impossible to some Oceanians now, refusing to do so will likely no longer be an option for an ever increasing number of us as the climate crisis and impunity of empire escalate largely uninterrupted.

I offer and frame these thoughts in the chapter as provisional reflections for debate amongst Oceanians, and perhaps other Indigenous and racialized peoples and our allies. This is not only to encourage collective knowledge-building that honours the va between us all, but to acknowledge that what I am putting out there is confronting and needs to be critiqued and refined. 

Since writing the chapter and presenting its ideas in a few Oceanian spaces, many more thoughts, and (self) critiques have come to mind. One is the need to consider more deeply the relationship between class relations in Oceania and the violence of international law. Rather than being helplessly co-opted, a closer reading of Hau’ofa, Fanon and others suggests that Oceanian and other elites who believe in and perpetuate international law’s myths, are driven by self-interest and their allegiance to empire over Oceania. This follows that these elites and the nation-state and organization forms they uphold are a part of the international law that the wretched of Oceania and the wider earth must resist. 

There is also a need to be clearer about how I or we understand ‘international law’. When some of us talk and write critically about international law, we might be using it both in doctrinal terms and as a proxy for empire, the Zionist entity or the Global North, sometimes without being aware or clear that we are doing so. In my chapter, I appear to animate international law as a living system of mechanisms, tools, and technologies that inflict multi-dimensional forms of violence on behalf of the empire and its entities. But more than anything, I understand it as a proxy for the way the world currently is. Admittedly, understanding international law in such broad terms comes with risks and costs. It arguably obscures the specific actors of empire and how they operate within and beyond international law, and may undermine the potential to strategically use international law, even just rhetorically, as some revolutionary scholars, activists, and movements have done and continue to do. 

But as the collapsing US empire and all its entities continue to simultaneously weaponize, distort, and abandon international law, it is becoming harder to deny that to be made and remade, empire(s) needs international law to exist, both as a system and as a proxy for the world as it currently exists in our collective imagination. This means that we need to dismantle international law to dismantle the unjust world we live in and be able to create a new one for our children and earth. For us to do this, we must finally let go of international law’s emancipatory potential, which will always remain illusory and unfulfilled. To draw inspiration from the legacy and words of Amílcar Cabral, for our children’s futures, we must “destroy everything” that is against justice and liberation for all – “step by step, one by one if necessary … we have to destroy in order to construct a new life.”