Plenary panel: Historicizing International Law
I must confess to feeling completely out of my depth in trying to write about this session. Not only was it an intellectually complex area, but my background knowledge of the area is wafer thin. Any observations I make will be inadequate, so if you’re interested in a fuller representation of what was said, I suggest that you look at the abstracts in the Conference Program.
If the plenary yesterday was about the relevance of history to contemporary life, then this one, at the most basic level, was about the relevance of history to international law. Ian Hunter opened the session by describing two ways of historicizing international law. The first is the dialectical approach which draws on Kant and Hegel, and sees international law only beginning in the second half of the 19th century and passing through stages towards a telos of possible harmony amongst the international community. The second, more contextual approach (e.g. Lauren Benton, Mark Hickford) postulates that international law has emerged through treaty making, and that the 17th and 18th century writings of Puffendorf, Vattel etc which were so heavily drawn upon in debates over sovereignty and conquest, were themselves post-facto rationalizations arising from universities attached to sovereign interests. The two views, Hunter claims, are irreconcilable.
Anne Orford also drew on this distinction, noting that from the 1990s onwards there has been the emergence of scholarly writing intent on disrupting the celebratory nature of international law. Third World Approaches to International Law argue that imperialism is ingrained in international law; while disciplinary histories of international law see international law as a profession and a human construct. A maximal contextual approach to international law would argue that we must not look at how the law has been modified over time, whereas international justice relies exactly on that argument: that concepts change over time.
Jessica Whyte used the recent revision of the United States Department of Defence Law Manual as an example. In an update of the 1956 manual, the new version argues, citing in particular Augustine and Aquinas, that there is a ‘just war’ tradition that this new revision is based upon. This is a marked change from the United States’ disavowal of ‘just war’ as a medieval construct when it was during the 1970s in the context of wars of national liberation (like Vietnam).
The questions that followed ranged across a number of current events: the invocation of the Treaty of Waitangi in the context of the Trans-Pacific Partnership negotiations, and the approaches taken by Indian and Irish commissions into famine in the face of food security in a Free Trade world.
Panel: Indigenous Foundation Histories?
The final session I attended noted the publication over the last decade of two ‘foundational’ Indigenous texts: The First Australians documentary series and book for Australian Indigenous people in 2008, and a very handsome (and large) recent volume Tangata Whenua: An Illustrated History.
Common to these texts was a depiction of identity in historical terms, and an assumption of Indigenous agency. In this panel, indigenous authors who had been involved in writing these or other ‘foundational texts’ addressed the question of whether these books were, in fact ‘foundational’ at all, their methodology, and their intended audience.
Aroha Harris, one of the authors of Tangata Whenua noted that the book was a collective enterprise, which tried to write a ‘general’ Maori history. This endeavour, however, is in tension with the focus on iwi (community). The book uses many images, but there were limitations on the images that could be used e.g. images of dead people lying in state. In making decisions about the writing and portrayal of events, she used what she anticipated the response would be from her cousins and aunties as a form of mental guidance. She demurred at the idea that Tangata Whenua might be ‘foundational’: perhaps it is more correct to say that it is overdue.
Heidi Norman is the author of What Do We Want? an analysis of lands right protest in NSW , a specific, fine-grained story from the 1970s onwards of the enduring but changing demands for land.
It was prompted by events in 2004 when Howard had dismantled ATSIC and the Sydney Morning Herald maintained a steady campaign against individuals in the state Aboriginal Land Council. There was no response to this: what had happened, she wondered, to the protest of the 1970s? Her book is an exploration of a new governmentality amongst a new generation of educated Aboriginal people with an ever-expanding conception of land.
Michael Stevens was a contributor of Tangata Whenua and he picked up on the idea of ‘foundational’ not so much in historical terms, but as his grandfather- a builder- would understand it: that without a strong foundation, things can fall down; that any mistake you make at the bottom will follow you up. His contribution, a section titled ‘Fat meat for the winter’ was based on his PhD thesis and drew on his own iwi and family photographs of mutton-bird harvesting and the connection between land and genealogy.
Vicky Grieves responded to these three speakers pointing out that Indigenous histories needed to change the mix, to include genealogy, languages, different ideas of time, ‘everywhen’ and the complexity of identity. Such histories would be a basis for building new histories (often written by non-Indigenous historians) through critique by Indigenous people.
And at this point, my conference came to an end. I had a plane to catch so I wasn’t able to catch the screening of Message from Mungo, an award-winning 2014 documentary.
It’s been a thoroughly enjoyable (if cold) four days: a beautiful setting, terrific food [always important!], well organized and stimulating.
They’ve just unpacked the entries for the Archibald Prize here at the Art Gallery of New South Wales. To which presentations would I award my conference version of the Packers Prize? For the keynotes, Jill Matthews reflection on the writing of Good and Mad Women on 8th July, and for the papers, I think it would have to be Nick Brodie’s presentation on the pictorial boards in Van Diemen’s Land, which I heard on 9th July. Congratulations and thanks all round!