International Law’s Invisible Frames Symposium: A Call for Critical Self-Reflection

Introduction to the Symposium on Andrea Bianchi and Moshe Hirsch (eds), International Law’s Invisible Frames: Social Cognition and Knowledge Production in International Legal Processes (OUP 2021)

[Alexandra Hofer is an assistant professor in public international law at Utrecht University and affiliated researcher at the Ghent Rolin-Jaequemyns International Law Institute (GRILI)]

In their thought-triggering project, Andrea Bianchi and Moshe Hirsch bring together sixteen chapters that, each in their own way, aspire to reveal international law’s invisible frames. The editors define frames as “mental patterns, such as patterns of attention, language, metaphors, labels, biases, and structures of knowledge and knowledge production”, or even the schema of cognitive processes that help us “make sense of the world and form expectations” (Introduction, at 1). Elsewhere, Anne van Aaken and Jan-Philip Elm explain that frames act as: “psychological lenses through which people make sense of each other, the issues they face, and the choice options available to them” (chapter 2, at 35). International law operates within these mental patterns and psychological lenses. Each contributor focuses either on the social cognitive mechanisms that influence how international law is put in practice or draws attention to the hidden procedures that shape how we think and ‘do’ international law.  Ultimately, Bianchi and Hirsch invite international lawyers to engage with the three ‘U’s: unlearn through letting go of what we think we know; understand the processes that lay behind the workings of international law; and through these processes unveil by making the invisible visible (Introduction, at 12). To my mind, the endeavour is one that enquires not only what international lawyers do, but also what it means to be an international lawyer. I interpret this as a call for critical self-reflection, a point I will return to.

A pertinent question in this context is one raised by Ingo Venzke (chapter 3): what is the point of critique? While we all have our biases, do we authentically aspire to transcend them through critique? Evidently, one objective is to gain awareness but what we choose to do with that awareness is inevitably up to us. Returning to the question of framing – to give just one example from the edited volume – the manner in which issues or problems are presented shapes our decision-making process; it impacts how legal norms are negotiated, interpreted, and applied (chapter 2). This is something we are no doubt intuitively aware of – the way we present a problem will have an impact the outcome –, but which we perhaps do not think about consciously. Being aware of how these frames work can, amongst others, provide insight on legal strategies. For instance, if Palestine wants to convincingly argue before the ICJ that the monetary gold principle is not applicable in its proceedings against the USA, its best strategy may be to frame the legal problem in a manner that effectively excludes Israel’s rights and obligations and that focuses on third states’ obligations towards Jerusalem (touched upon by Aline Miron).

I also like to think, perhaps idealistically, that through interdisciplinary research in international law we can work towards uncovering how human beings interact as a collective to achieve common goals (‘understanding’). As law aspires to regulate behaviour it is naturally based on assumptions on how this behaviour can, or should be, regulated. However, our assumptions are based on our experience and understanding of human behaviour, which are limited and always subject to evolution. The best we can do is to become aware of our limitations and question our prejudices. The point is then to make these assumptions visible and to see if they add up to scrutiny (‘unveiling’). But before we can do that, we need to be aware of what these assumptions are. We achieve this by taking distance from what we believe we know (‘unlearning’).

As I read the volume, I often paused to ask myself: “What does it mean when I say I am an ‘international lawyer’? What is it I am doing when I teach or research international law?”  Ultimately, in our study of the collective, we wind up considering who we are as individuals. The collective then becomes a sort of looking glass that reveals our ‘Selves’. If, as Jean d’Aspremont argues (chapter 6), international law and the world it works in are one and the same rather than being two separate ontologies, perhaps an analogy can be made between the Self and the collective, or ‘the Others’. The Self may be distinct, but it is part of the whole. Therefore, as mentioned above, I interpret Bianchi and Moshe’s call to ‘unlearn, understand and unveil’ as an invitation to critical self-reflection, where one must first question one’s assumptions rather than take them from granted. If exercising international law requires us to crop out parts of the bigger picture, we should ask what it is we are not seeing or not allowing ourselves to see, and consider whether there would be something to gain by expanding our horizons. To quote theoretical physicist Carlo Rovelli, the challenge to us – regardless of the discipline – is that: “We must take seriously the new things we learn about the world, even if they clash with our preconceptions about how reality is construed” (Rovelli 2021: 136-7). Perhaps our preconceptions, or assumptions, come down to how the world has been framed and the thought processes we have integrated in order to navigate it, which is all the more reason we should engage in unveiling the invisible and questioning it.

This is not to say that there are not limits in borrowing notions from sociology or psychology and applying them to international law. Tomer Broude (chapter 5) provides one example through prosociality – where people incur personal costs for the benefit of others and society at large – and whether it can explain the motivation for humanitarian intervention. Though ‘prosociality’ has potential for the discipline, especially if one believes states should restrict the pursuance of their self-interest for the collective interest, it is not easily transferred to international law, notably because of the multitude of variables involved and the unit of analysis problem (whose self-interest counts? Who are the relevant actors?).

To unlearn may be especially uncomfortable, and the editors recognize it may give rise to insecurity and a feeling of estrangement amongst peers. To the extent that our worldviews may be challenged, the exercise may be so confrontational that the mind may resist and seek to avoid it altogether. If we challenge the worldviews of our peers, they may seek to avoid us. Nonetheless, through intellectual wandering we may have much to gain. Coincidentally, I started to read After: A Doctor Explores what Near-Death Experiences Reveal about Life and Beyond at around the same time as writing this piece (see also here). Prior to studying near-death experiences, Dr Bruce Greyson struggled to make sense of phenomena that caused him to question everything he thought he knew to be scientifically true about human life. Before he could take near-death experiences seriously as a doctor, he had to accept the fact that he may have been perceiving the world through a limited window and that if he poked his head outside of the frame, that his own understanding of the world and our place in it would change radically. Without wanting to set the bar too high or to have unrealistic expectations, one can only wonder what unveiling, understanding and unlearning in international law can add to our understanding of the human experience.

Returning to the symposium, though all the chapters in the volume are worthy of further musings, the present symposium reflects on three of them. We kick off with Emiliano Buis’ commentary on Shiri Krebs’ chapter (chapter 7), which studies what is hidden behind ‘the fog of war’ metaphor and how, along with cognitive and motivational biases, it works as a frame in that it influences post-factual assessments of targeting decisions. As discussed by Harlan Cohen (chapter 12), international lawyers frequently employ metaphors, a process that frames thought process (at 219):

metaphors allow international lawyers to build a shared, tangible universe of legal meaning. In so doing, however, metaphors also help hide international law’s dark side, blind international lawyers to alternative ways of organizing the world, and prejudge legal outcomes. 

Krebs reveals to us how the fog-of-war metaphor – which is employed in such a manner that justifications shortcomings in retrospect as opposed to in real time – participates in presenting “fact-findings practices as natural and neutral”, “[masking] subjective choices and choices made, and enables the reoccurrence of lethal mistakes” (at 137). In his contribution to this symposium, Emiliano Buis engages with the temporal fiction and further enquires on the role of emotions in our rational constructs by taking a closer look at the standard of ‘reasonable commander’. Akbar Rasulov’s (chapter 10) looks into the constructs of international lawyers themselves and argues that the discipline of international law is a “system of specialized knowledge production” (p. 189). It is geared towards the construction of “abstract mental objects that, put together, constitute a body of technical expertise relating to the exercise of global governance” (at 196). Adil Hasan Khan explores to what extent Bourdieu’s concept of habitus, in particular the reading provided by Saba Mahmood and Talal Asad, can enrich our understanding of what international lawyers do. One of the curiosities of international law is that it does not work independently from politics and economies, and yet we teach it as if it does. As Ana Luísa Bernardino (chapter 16) points out, textbooks shape what counts as international law and what should be excluded. Although it is artificial, when we follow textbooks as we teach, we have a tendency to separate international law from other fields. This also frames how students learn to think about the discipline, sometimes it results in curbing their critical thinking – they come to believe some questions are simply irrelevant. Sofia Stolk joins the discussion by exploring Bernardino’s question: “Why do we use a textbook?”, and considers its relevance in her own course. She also engages with the lecturer’s role in teach international law.