International Law

‘Indian Migration and Empire’: response from Radhika Mongia

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This is the final post in our symposium on Radhika Mongia’s Indian Migration and Empire: A Colonial Genealogy of the Modern State, in which Radhika responds to her interlocutors.

Each of my interlocutors foregrounds and engages with different aspects of my book, Indian Migration and Empire: A Colonial Genealogy of the Modern State. In this response, I want to dwell on four interrelated elements they stress: namely, (1) the distinction between free and forced migration, their differential management in migration regimes and the current incarnations of this distinction; (2) the place of processes of racialisation with regard to migration regimes, to understandings of citizenship and to the contours of nationhood; (3) the enduring Eurocentrism of certain disciplinary presuppositions; and, lastly, (4) the relationship between the colonial state and the modern state, that lies at the heart of the book.

One of the central concerns of the book, as I noted in my introductory post, is to interrogate the remaking of ‘freedom’ in the nineteenth century though a consideration of the distinction between ‘free’ and ‘unfree’/‘forced’ migration and their differential regulation. I unpack this distinction in relation to the 1834 abolition of slavery in the British empire and the state-supervised movement of Indian indentured labour that followed in its wake. Slavery and the memory of the slave trade (the latter abolished in 1807) were at the heart of the contentious legal debates on how, and whether, to regulate Indian migration. Animating these debates was an abiding concern with how to legally distinguish slavery from freedom, violation from volition, coercion from consent, and thereby not only enable, but facilitate, a movement that could be coded as ‘free’. At the centre of the regime that regulated indenture was the appearance of a renovated ‘free labour contract’ that elevated the metaphysical notion of ‘consent’ (a variant of ‘intension’ or of ‘will’), diminished concerns with ‘fairness’ and radically transformed understandings of ‘freedom’. Both Luke and Bridget draw out aspects of this theme and how it endures in our present, by directing our attention to how current migration regimes are also structured around the notions of ‘free’ or ‘forced’ movements. But now, as they point out, we see a twist. If, in the nineteenth century, the concern was to facilitate ‘free’ movement (to avoid charges of a second slave trade), the rationale of our prevailing dispensation is to prohibit ‘free’ movement. Currently, in many national-state spaces, it is only those who according to always-shrinking governmental criteria can be characterised as ‘forced’ or, in the new parlance, as ‘refugees’, who are allowed to move. Others, many more, understood as ‘economic migrants’, who attempt intentionally (and, thus, ‘freely’ and ‘willingly’) to escape the depredations of their circumstances are illegalised, rendered interlopers. Reading Luke and Bridget’s engagements alongside my argument concerning ‘historicising freedom’, it is evident that we have seen yet another profound remaking of freedom in the twentieth and twenty-first centuries—one committed to a sedentary bias that demands that ‘freedom’ is best practiced in your ‘assigned’ place. Or, as Nandita Sharma puts it, increasingly, migrants are conceived as ‘people out of place’. Moreover, as both Luke and Bridget point out, a discourse of ‘protection’ underlies and makes possible the current distinction between ‘free’ (economic) and ‘forced’ (refugee) migration. It was precisely a discourse of protection of, on the one hand, Indian indentured migrants and, on the other, the formerly enslaved in the colonies of Mauritius and the Caribbean, that enabled state regulation of Indian indentured migration. Thus, returning to the details of how this regime was put in place (as I do in my book), serves as an important lesson in thinking about current articulations.

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‘Indian Migration and Empire:’ comment by Nadine El-Enany

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The fourth post in our symposium on Radhika Mongia’s Indian Migration and Empire: A Colonial Genealogy of the Modern State is by Nadine El-Enany, who is Reader in Law at Birkbeck School of Law and Co-Director of the Centre for Research on Race and Law. She is author of(B)ordering Britain: Law, Race and Empire (Manchester University Press, 2020), co-author of Empire’s Endgame: Racism and the British State (Pluto, 2021) and co-editor of After Grenfell: Violence, Resistance and Response (Pluto, 2019).

It is a pleasure to be part of this symposium, especially because Radhika’s work has been such an inspiration to me. Unfortunately for me, her book came out just as I was finishing my own book, (B)ordering Britain: Law, Race and Empire. Though I managed to include some engagement with her work, I wished I’d had her book when writing my own. I have learned so much from it and can see various exciting links and possibilities for conversations with my own. For that reason, I’m particularly glad to have a chance to be part of this symposium. 

Radhika’s book takes the apparent ‘unremarkability’ of the monopoly states exercise over the movement of people and shows how, in actual fact, there is much to be said about this status quo that might lead us to rethinking and rearticulating scholarly and, indeed, activist approaches towards migration in a context of violently protected national boundaries. For me, one of the most salient contributions of the book is the revelation of the relationship between the metropolitan or modern state and the colonial state – in particular, the way in which the former has been shaped by the latter. The contours of Anglo-European nation-states, which once had empires ranging in scope and size, are historically contingent, having been moulded in the course of the formation and implementation of colonial migration regulations. In tracing the transition ‘from a world dominated by empire-states into a world dominated by nation-states’ (p. 1), Radhika thus points to a ‘fundamental colonial genealogy of the modern (nation-)state, in both the metropoles and the colonies’ (p. 3).

Radhika and I share an interest in drawing out and subjecting to analysis ‘the formation of key techniques and technologies for regulating migration’ (p. 3). For Radhika, such a focus enables the illumination of the relation between ‘patterns of migration’ which would otherwise be ‘held distinct’ (p. 3). Crucially, this approach allows for the undoing of ‘methodological nationalism’, which, as Radhika writes, ‘sees the national as the privileged site and scale for investigating migration, and, thereby, misunderstands how definitions of the “national” are necessarily implicated in, and emerge from, non-national, cross-statal, transcolonial, and inter- and intra-imperial forces’ (p. 3).

To my mind, this is a crucial project – to begin to unsettle the methodological nationalism which pervades mainstream scholarship on migration. Those of us who teach migration law from a critical perspective, will be familiar with the wide-eyed looks from students who are asked to question the legitimacy of the supposedly sovereign states they have come to take for granted, both as having always existed, or always destined to somehow come into existence, and crucially, as the only way of organising human life politically and geographically. However, when we begin to chisel away at this seemingly unshakeable status quo, as Radhika’s book does so powerfully, the geographical and political remnants of empire begin to surface, and like re-found jigsaw puzzle pieces, create a much clearer picture of seemingly separate sovereign nation-states as, in fact, embedded in their colonial pasts, and I would argue, suffering from a crisis of legitimacy.

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Colonial Lives of Legality and Possibilities for Resistance?

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The Disorder of Things is delighted to host a symposium on Brenna Bhandar’s new book, Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership. First up is the symposium organiser, Alvina Hoffmann, a PhD student in IR at King’s College London. She is review article editor, social media officer and member of the editorial board of Millennium: Journal of International Studies. She is co-convenor of the research group Doing International Political Sociology. Her thesis investigates the annexation of Crimea, the Sami people’s struggle over land rights and the Internet users’ claims over digital spaces through the lens of rights claims practices which intersect in various institutional settings such as the UN.

Brenna Bhandar’s Colonial Lives of Property takes its readers on an analytical journey through various empirical and temporal contexts, excavating the racial assumptions underpinning the development of modern property law which animate contemporary settings of settler colonialism. In Bhandar’s own words, the book’s main focus lies “on the political ideologies, economic rationales, and colonial imaginaries that gave life to juridical forms of property and a concept of human subjectivity that are embedded in a racial order” (p. 22). The book is an impressive study which skilfully combines archival material, legal cases and fieldwork to showcase the various practices of appropriation of land and its rationalisation through property law regimes. It will appeal to scholars from various disciplines studying the development and contemporary manifestations of racial capitalism, Indigenous people’s dispossession and resistance struggles, and the history of property, territory and sovereignty more broadly. This interdisciplinary form of inquiry not only helps shed new light on questions surrounding the enduring forms of racial and economic inequalities, but also offers thoughtful reflections on new political imaginaries of property.

In this post, I want to draw out three points that Brenna Bhandar’s rich and thoughtful book raises. First, I will show how her historical analysis of processes of racialisation constituted political subjects in colonial settings. Then I will focus on practices of legality and consider ways in which her analysis can be applied in international law with regards to Indigenous peoples and their claims to land rights. The final part will consider Bhandar’s conclusive thoughts on alternative political imaginaries of property which draw on an array of scholars and resources which inspire critical theories and practices of such imaginaries.

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The Internationalist Disposition and US Grand Strategy

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img_3010A guest post from Stephen Pampinella, continuing our occasional series on left/progressive foreign policy in the 21st century. Stephenis Assistant Professor of Political Science and International Relations at the State University of New York (SUNY) at New Paltz. His research interests include US state building interventions, hierarchy in international relations, race and postcolonialism, US grand strategy, and national security narratives. He is on leave from SUNY New Paltz during Spring 2019 and is conducting research on the practice of diplomacy in the Ecuadorian Foreign Ministry in Quito, Ecuador.

Alex Colás’ “The Internationalist Disposition” provides an excellent framework for evaluating foreign policy debates in the Democratic Party. The failures of the War on Terror combined with the emergence of economic and environmental threats have led many to engage in a far-reaching reappraisal of US foreign relations based on left critiques. This new approach toward foreign affairs is called progressive internationalism. It attempts to resolve the tension between adopting greater military restraint and remaining engaged in global governance.

But in recent weeks, establishment voices have sought to reassert their control over foreign policy debates by arguing for the necessity of US hegemony and classic liberal internationalist forms of cooperation. Colás’ methodological internationalism illustrates why traditional US foreign policy approaches will fail to provide actual security for ordinary Americans. It also suggests (somewhat counterintuitively) what kinds of grand strategies could do so. A great power concert strategy, in which the United States pursues a balance of power among its rivals while committing to more democratic forms of international cooperation, can best resolve the non-state threats to US democracy generated by its own liberal order.

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The End of The Hague Yugoslavia

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The Hague campus of Leiden University today hosted the “Final Reflections” symposium of the International Criminal Tribunal for the former Yugoslavia (ICTY). Everyone from the institution showed up: current and past presidents, current and past judges as well as ad hoc judges, current and past prosecutors, media officers and archivists, plus a bunch of guests—gender advisors, professors, judges from other courts, and so on. Even the president of the International Criminal Court (ICC) spoke at the last panel. This was not a mere stock-taking exercise “between a variety of stakeholders,” says the agenda.  Rather, it was an opportunity for said stakeholders to reflect on the ICTY’s legacy, ideally via a set of “short but emphatic statement[s] on the importance of international criminal courts and tribunals – particularly in today’s political climate.”

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Queer International Relations (V)

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The fifth post in our symposium on Cynthia Weber’s Queer International Relations: Sovereignty, Sexuality and the Will to Knowledge is from Dianne Otto. You can read Cynthia’s introductory post and responses to it here. image001

Dianne Otto holds the Francine V. McNiff Chair in Human Rights Law at Melbourne Law School and was Director of the Institute for International Law and the Humanities (IILAH) 2012-2015. Her research, in the field of public international law and human rights law, aims to meld critical legal theory with transformative practice. Dianne’s research covers a broad field including addressing gender, sexuality and race inequalities in the context of international human rights law, the UN Security Council’s peacekeeping work, the technologies of global ‘crisis governance’, threats to economic, social and cultural rights, and the transformative potential of people’s tribunals and other NGO initiatives. She is editor of the forthcoming collection, Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2017). Recent publications include Rethinking Peacekeeping, Gender Equality and Collective Security (co-edited with Gina Heathcote, Palgrave-Macmillan 2014); three edited volumes, Gender Issues and Human Rights (Edward Elgar Publishing, Human Rights Law Series, 2013); and ‘Feminist Approaches to International Law’ in Anne Orford and Florian Hoffman (eds), The Oxford Handbook of The Theory of International Law  (2016).

Cynthia Weber’s ‘queer intellectual curiosity’ takes the reader on a journey of discovery that uncovers the manifold ways that tropes of (homo)sexuality have helped to institute, legitimate, authorize and sustain white, western, civilized, capitalist, (neo)liberal ‘statecraft as mancraft’.[1] She sets out to reveal what happens to our understanding of international politics, and in particular its constructions of state sovereignty, when the variable of sexuality is included in mappings of its relations of power. Along the way, she makes a powerful case for the importance of conversations between queer theory and international relations theory by showing how sexuality works as a fundamental organizing principle in international politics (and, I would argue, in international law as well).

Cynthia searches for, and finds, proliferating figurations of the ‘homosexual’ in international affairs and asks what work these figures are doing, especially in relation to sexualizing sovereign subjectivities, which invest the modern state with authority and legitimacy. Drawing on a somewhat dizzying selection of queer/postmodern theoretical and methodological approaches (beautifully explicated in chapter 2), she shows how these figurations also do work beyond the state to sexualize the formal and informal ways that international relations are arranged, including in regional organizations like the European Union and global security campaigns like the ‘war on terror’.

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The Preventing Sexual Violence Initiative and Its Critics

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I have a piece out in the latest International Affairs on the UK government’s Preventing Sexual Violence Initiative (PSVI), better recognised as that thing William Hague did with Angelina Jolie(-Pitt) when he was still Foreign Secretary. As well as an important project in its own right, the Initiative might be read as signalling a new front in ethical foreign policy, and another success story in feminist activism around sexual violence (alongside the rise of ‘governance feminism’ and what have been called ‘femocrats’ in the UN and elsewhere). The role of the UK as a diplomatic and political presence becomes more important still against the background of rising attention to gender in global policy discourse in recent decades (conventionally referred to as the ‘Women, Peace and Security’, or WPS, agenda). Alternatively, the PSVI might be understood as a cause without demonstrable success, already fading from the scene along with Hague, its main advocate. And from either a conventionally Realist or a more radical activist perspective, the chances of a Foreign Office-led policy initiative making any feminist ground would seem slim.

Against this background, and building on a few years of following the Initiative’s progress, I stake out a preliminary analysis of three planks of the PSVI’s work. First, its wholesome embrace of ‘weapon of war’ thesis. Second, the great emphasis on ending impunity as the most effective means to reduce atrocity. And third, the repeated foregrounding of men and boys as ignored victims of sexual and gender-based violence. The headline conclusion is that, despite its promise, the initiative has thus far achieved little on its own technical terms, and its underlying approach to gender violence in conflict is in important senses limited. The conceptual bases of this relative failure lie in an unduly simplistic account of where and why such violence happens and an inability to reckon with the lack of evidence for strong deterrence effects or the significant resource challenges involved in supporting local and national justice programmes. By contrast, the PSVI stands as an important moment in the opening out of policy understandings of gender violence, although there nevertheless remain important ambiguities over ‘gender neutrality’ in practice, and therefore a likelihood of disputes over resources.

Missouri Emancipation Ordinance

The arrival of the Hague-Jolie Initiative onto the WPS scene was unexpected. The Conservative manifesto for the 2010 general election made no mention of wartime sexual atrocity, and was utterly conventional in its references to human rights. UK support for Security Council resolutions aside, activities on sexual violence have historically come from the Department for International Development (DFID), and with the exception of the attention generated during the London summit, the UK government has not made much of the initiative in its public relations since. The PSVI is thus heavily identified with William Hague personally, and can be traced to his epiphany over the role of genocidal rape in Bosnia. Hague, who is also the biographer of William Wilberforce, has framed war rape as similar to slavery in its immorality and argued for the role of the UK as an abolitionist force, repurposing standard diplomatic practice to progressive ends. This is to seek nothing less, in his words, than “the eradication of rape as a weapon of war, through a global campaign to end impunity for perpetrators, to deter and prevent sexual violence, to support and recognise survivors, and to change global attitudes that fuel these crimes”.

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Ethical Encounters – Care in Counterinsurgency: Feminist Ethics and the Morality of ‘Winning Hearts and Minds’

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This guest post, by Jillian Terry, is the fourth in a series of posts reflecting on contemporary global ethics that was originally organised as the Ethical Encounters in a Changing World panel for the 2015 ISA convention in New Orleans. Jillian is in the final stages of completing her PhD in International Relations at the LSE, where her research explores the relationship between feminist ethics and post-9/11 war. Recently, Jillian has published her research in the International Feminist Journal of Politics and has contributed a chapter to the edited volume Gender and Private Security in Global Politics, edited by Maya Eichler (OUP, 2015). For earlier posts, see Myriam’s here, Joe’s here, Elke’s here and Diego’s here. Kim’s discussion post can be found here.

In thinking of twenty-first century war, questions of ethics in the realm of counterinsurgency are embodied in a wide range of encounters between combatants, civilians, and counterinsurgents. In Afghanistan and Iraq, we have witnessed tactics, strategies, and mechanisms in the name of COIN operations ranging from population control and detention to targeted killings and the implementation of the Human Terrain System, resulting in a set of complex realities about what it means to ‘do’ counterinsurgency in the contemporary era. Nevertheless, much of what we talk about when we think through questions of ethics and counterinsurgency remains tied to its manifestation in formal, legal mechanisms – namely the Counterinsurgency Field Manual (FM 3-24) – and their insistence on counterinsurgency as a practice of ‘winning hearts and minds’. Like much mainstream work on the ethics of war in IR, this has resulted in ethical conversations around counterinsurgency operations that are theorized with respect to just war doctrine, applying principles of jus in bello and jus ad bellum to determine the moral status of counterinsurgency as a means of warfighting. Here, I see a vital disconnect between existing analyses of COIN and how it is actually experienced and felt by insurgents and civilian populations – experiences and encounters that are irreducible to the strict criteria of the just war framework. To bridge this disconnect, I suggest a reorienting of our ethical lens away from just war thinking and towards a feminist ethics premised on care, empathy, and relationality. Such a perspective is more attuned to considering the practical realm of counterinsurgency rather than remaining mired in abstract debates about the semantics and theory of COIN operations. Given that the practical realm is one in which the truly relational nature of counterinsurgency becomes apparent, it is logical to look towards feminist ethics for an alternative viewpoint that prioritizes the lived experiences of individuals over legalistic interpretations of counterinsurgency as it appears on paper. A feminist ethics rooted in understandings of care and relationality will allow us to move beyond the formal articulation of COIN as is found in FM 3-24 and instead think about the encounters of those affected by counterinsurgency operations in a genuine and meaningful way.

U.S. Army PFC Danny Comley during patrol in Kandahar Province, Afghanistan, February 2010.

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Ethical Encounters – Taming of the Infinite: Applying Ethics for Political Violence – A Brief Critique

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This is the third post in a series reflecting on contemporary global ethics that was originally organised as the Ethical Encounters in a Changing World panel for the 2015 ISA convention in New Orleans. Myriam’s post can be found here, Joe’s is here, Jillian’s here and Diego’s here. Kim’s discussion post is here.

The relationship between ethics and politics is complex; in theory, as in practice. Against a contemporary background where hitherto morally prohibited acts, such as assassinations by drones strikes in non-military zones, are instituted as legitimate and justifiable practices, it becomes vital to understand anew the relationship between politics, violence and ethics, and its limits, particularly when such acts are underwritten by innovative military technologies that open new horizons for ethical considerations in international politics.

Ethics, in the context of politics – including international politics – is presently predominantly conceived in terms of applied ethics and chiefly concerned with the search for an ethical theory that can be arrived at through abstraction and applied to real world ethical dilemmas. While burgeoning poststructuralist scholarship in the late 1990s sought to address ethics in terms that consider aspects of contingency, alterity and potentiality, the events unfolding in the aftermath of 9/11 appear to have given way to a more practically oriented approach to thinking about ethics in international politics, giving priority to the application of ethical principles of warring. Such practical approaches often mirror scientific processes, or algorithmic logics in trying to find ‘correct’ outcomes.

While just war traditions of ethics in war have always had a close relationship with the analytical procedures and structures of international law, the practical turn in contemporary political ethics means that concerns addressed in the international and global context are primarily framed in terms of finding and applying appropriate principles, codes and rules in trying to resolve ‘real moral problems’. Problem solving through rational procedures, and scientific rationales thus stands at the heart of practical considerations of the ethics of political violence and war. This is exemplified in the IF/THEN logic of current discourses on the ethics of war or in the structures of target selections for lethal drone strikes. Among others, Seth Lazar’s recent work on the morality of war, presented at a philosophy workshop at the LSE in 2013 for example, considers approaches to moral decision making in uncertainty in the following terms: “one plausible approach to decision-making under uncertainty is to determine the expected moral value (EV) of the outcomes available to me, and to choose the best one. So, I am permitted to ƒ if and only if EV(ƒ) ³ EV(¬ƒ)”. Similarly, Bradley Strawser’s defence of the ethical obligation to use drones as a weapon of choice relies on a selection of variables (X, Y, G) and principles (principle of unnecessary risk – PUR) that, combined, serve to confirm the hypothesis, namely that using drones is an ethical obligation. This procedural algorithmic logic speaks to a technoscientific-subjectivity with which ethical outcomes are ascertained, problems solved. Ethics becomes a technical matter that can be solved through procedures and thus has natural limits. It is only able to assess, whether an outcome was achieved through the correct logical theoretical trajectory, not through the particularities of the moment.

Stuart Kinlough/Getty Images

Stuart Kinlough/Getty Images

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Terra-forming Islands in the South China Sea, or the Future of International Law in the Age of Anthropocene

/ Can Mutlu / 7 Comments

As per our disciplinary formations, IR scholars often indoctrinate instruct their students with the assumption that anarchy is a constant in international relations. The use of the term, however, generally assumes that there are natural/material constants within the international that transcend central concepts of sovereignty, power, and choice/preference. In other words, the assumption is that anarchy has (material) limits. Even those subscribing to the discursive turn would/might agree that there are material constraints that limit ‘meaning construction.’ We base a number of international laws, norms and regulations on this assumption; there are certain constants that cannot be changed through human actions. Our aspirations, capabilities, hopes, preferences, do not change these constants. What if – and this is a big ‘what if’ – for the time being, we are increasingly wrong about this assumption? What if human ability to transform the earth’s eco-systems has reached a level where this basic assumption no longer holds valid, or as valid as it used to be?

its-not-colonialism-its-terraforming

A number of geologists, environmental scientists, and futurists alike have already picked up on this trend. Looking at climate change in particular, they claimed that the earth has entered a new epoch in its life cycle. “We now live in the age of Anthropocene!” these scholars claim. Anthropocene, in this context, refers to the humans’ distinct ability to affect earth’s ecosystems. This claim is disputed, yet many see merit in it. To understand, or reflect, on the implication of the fact that we, as humans, are not the only ‘things’ that matter in this world of ours, you can also look at this amazing post by Audra Mitchell on Posthuman Security.

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While in the future we might see the effects of other types of terra-forming and/or bio-engineering in international relations and international law, this post will only look at the United Nations Convention on the Law of the Sea and the effects of the Chinese pursuits in the South China Sea on the said law. The BBC ran an excellent exposé back in September on the People’s Republic of China’s (PRC) pursuit of building man-made islands on the South China Sea and its (intended) effects on the territorial water disputes between the countries of the region. Aside from the amazing medium through which the BBC editors and reporters managed to convey the message, the story itself is equally worth reflecting on for all things international.

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