Nicholas Rajkovic has recently introduced two concepts which, between them offer a fresh lens through which we can view our profession. Rajkovic developed these concepts, “performances of legality” and “vicarious litigation”, in his reflections on “lawfare”. But they apply more generally. 

Public International Law as Performance

Lawfare was “a hybrid model of combat … where legality assumes a foreground, and not background, position in combat strategy”.^[1] But it has evolved Rajkovic argues, now participants “are doing something more”, “they are producing … patterned actions directed at an organized context … which aim to construct appearances of lawfulness.”^[2] These “are performances of legality”, professional exercises in PIL, whose “chief goal is … validation from a global audience of legal experts, public opinion, and sovereign decision-makers.”^[3]

It is important to emphasise that “the term “performances” does not imply cynical theatrics, but rather concerted actions to display legality or illegality”.^[4] These “appeal implicitly and explicitly to recognized legal interpretations and standards, so as to enact the trappings of obligation, competence and imperative compliance.”^[5] Although developed in an IHL setting, this concept captures the work of most international lawyers. Deploying “the trappings of obligation, competence and imperative compliance”, we display our professional skills, and seek validation from our “global audience” of professional counterparts. We enact performances of legality.

However, PIL lacks institutional centrality, and it is difficult to imagine how, or where, these performances might be judged:

This has led to a distinctive struggle between adversaries over appearances of legality and illegality, which has produced an institutional and narrative battlespace of growing importance that this paper conceptualizes as vicarious litigation.^[6]

Vicarious litigation takes place in imaginary, hypothetical, or metaphorical courts: the “court of public opinion”, or a “tribunal” of impartial international lawyers, “a global matrix of legal experts, activist groups (e.g. Human Rights Watch) and para-judicial entities (e.g. UN commissions and human rights rapporteurs)”.^[7] Consequently:

Vicarious litigation can readily escalate into a vortex of militarized legalism with no actual court for resolution, which, while proliferating references to legality, paradoxically disables the institutional coherence, authority and power of IHL.^[8]

Radical indeterminacy and vicarious litigation

For Rajkovic then, IHL was not, “traditionally,” indeterminate; but is being made so by the impacts of vicarious litigation. I disagree on this point. IHL, like PIL generally, has never been determinate. The stabilizing “authority” of the ICRC has never really been accepted. There have always been counter-currents to the ICRC mainstream, and disputes over the legality of specific actions. These are rarely resolved, and the courts of public and professional opinion are generally split and undecided. Vicarious litigation reveals the absence of “institutional coherence, authority and power [in] IHL.” It reveals the same absences in PIL generally.

Performers of international law create arguments for the legality or illegality of particular instances of state conduct. To do so, they identify, interpret, and apply the “relevant rules”; they “appeal … to recognized legal interpretations and standards” for support.

However PIL is indeterminate. There is no consensus over the “relevant rules” and “recognized legal interpretations and standards”. There are many forms of “competent legal argument” and no agreement over how these should be assessed or ranked. There are disputes over which legal norms exist, which apply, and what they mean in context; disputes over the authority of particular institutions or expert bodies. These manifest as conflicts over legality because, in radically indeterminate PIL, every course of conduct is simultaneously legal and illegal. Performances of legality are professional techniques for weaponizing that indeterminacy.

We should contextualise performances of legality and vicarious litigations within the observable (and oft bemoaned) reality that very few of the thousands of legal claims produced have any perceptible impact on the material world. The multitudinous monographs, edited collections, and articles published, the increasingly lively blogosphere; even the “authoritative” special rapporteur’s reports, and committee, commission, or tribunal determinations, have no obvious bearing on the real-life disputes they purport to resolve. 

It is startling that this glaring lack of impact is generally found uninteresting; blithely subsumed under the lament that PIL ought to be better enforced. This normalised, yet peculiar, acceptance of systemic impotence is maintained by a combination of PIL’s progressive eschatology and quotidian practices. But it should be unsettling, and unsettled – made strange. PIL is an endless array of concurrent performances of legality, suspended in perpetual deferral before imaginary, hypothetical, or metaphorical, courts. The quintessential vicarious litigations, these manifest unresolved and irresolvable conflicts over the existence and meaning of the “norms” of PIL.

As such, PIL is an “institutional and narrative battlespace”, where different normative claims and schools compete for space, attention, and prestige. It is a site of linguistic conflict, where “rival legal performances seek to impose governing appearances of illegality or lawfulness.”^[9] These performances are not simply a “novel institutional mutation of IHL”.^[10] They are the very “practice of PIL” itself. International lawyers rarely “do law” in any meaningful sense, as there are few authoritative institutions in which to practice.

Likewise, as academics we don’t really “do” law either, we describe what we believe it means to “do law”. In municipal legal studies, this generally manifests in summarizing the judgments and mimicking the forms of the appellate courts. Things are more complex in PIL where there are many forms of “court”, “judge”, or “authoritative decision-maker” to summarise or mimic. Consequently, when international lawyers choose to focus on a particular institution, they elevate that institution into a system official of their own imagined legal system. This is generally done in concert with others in what Beverly and Etienne Wenger-Trayner call a “community of practice”.^[11]

Where we (don’t) do law

We are professionally constructed as international lawyers in relatively discrete communities. These “are groups of people who share a concern or a passion for something they do and learn how to do it better as they interact regularly.”^[12] They “engage in joint activities and discussions, help each other, and share information”.^[13] Members “develop a shared repertoire of resources: experiences, stories, tools, ways of addressing recurring problems.”^[14] These communities evaluate the competence of their members, who “care about their standing with each other.”^[15]

Communities of practice manifest “the constitutive power … to shape collective beliefs and understandings for the community”. The impact is profound: 

such collective understandings … become ‘background knowledge’ and ‘structure’ to the community that, in turn, shape the perception of the world of its members, the way in which they act, they evaluate other groups’ world views and how they set their priorities.^[16]

In other words, we don’t learn to “do” PIL as such, or even environmental, trade, or human rights law as such. We are trained to perform our community’s construction of the discipline. We internalize the preferences, postures, assumptions, and commitments of our formative communities. Within these communities, intricate, if often implicit, simulacra of legal systems are formed and maintained by common commitment. These imagined legal systems provide the templates for our own performances of legality, and our standards for judging others’ performances. They form our preferred rules of vicarious litigation. However, our interlocutors or adversaries need not share our preferences.

Parallel performances of legality are staged by different communities of international lawyers; each takes its own imagined legal system as the point of reference. Performances are generally directed at the community itself, or communities bearing similar constitutive assumptions. Those with radically different understandings of PIL are portrayed as manipulative or idealist, misguided or incompetent; they are excluded from our discourse. We refuse to recognise their imagined legal systems. Vicarious litigations take place within communities, or between those communities who interact with one another.

To understand PIL as an ethical project, one must focus on the performances of those communities which share one’s ethical/political leanings. Nominally “progressive” communities of international lawyers abound in all spheres of PIL: international humanitarian law, international human rights law, environmental law, even international economic law has its radicals and rebels. Their performances take the forms of articles and books, reports and judgments, classes and speeches. These paint the familiar picture of a nice, but weak, PIL whose intricacies are still being debated, but whose outline is agreed.

And, of course, they clash with reality: wars are fought without restraint, human rights violations are endemic, environmental degradation continues apace, and the international economic system continues to immiserate the masses in the under-developed world. There are international lawyers whose performances seek to justify these events. But these are usually ridiculed, rejected, or excluded from the progressive discourse entirely. Consequently, the vicarious litigations generally yield guilty verdicts – a “victory” for the progressives, and a vindication of PIL, albeit thwarted by realpolitik.

The most common victories are pyrrhic. The law is identified and interpreted to demonstrate that is has been “breached”. Behaviour is identified as “unlawful”, articles and reports are written supporting the “judgment”. Responsibility is apportioned, and demands are made for accountability. But nothing is done, the “unlawful” behaviour goes unpunished, and generally continues. In response, the winning community laments the lack of enforcement or compliance for its judgment. But it remains proud of its performance, certain it vanquished its foes. And it continues, continues to perform, to litigate – to win, and to lament. 

Our training allows us to rationalise and excuse this ongoing lack of impact – be it through compliance studies, complaints about enforcement, or downright denial. We continue performing, certain in both our cause (ethical PIL) and our belief in its value. But we ought to undermine this certainty, to ask for whom we are performing, and why. (Why) is our vision of ethical PIL authoritative? Is ethical PIL authoritative or “binding” at all? Why do our commands fall so consistently on deaf ears? Which audience do we care about?

It seems plausible that the various performers of PIL work primarily for their communities, for community recognition, professional recognition. I do not mean to suggest cynicism here, but rather an idealised commitment to the community’s imagined legal system, its simulacrum. Thus, PIL’s “substitutions of … simulacrum for original are often invisible” because they are “effectuated by and throughout the discipline”^[17]As a result, international lawyers all too often “settle for and settle into the pursuit of a simulacrum of the object of their desire.”^[18] The performers (subconsciously) prioritise perfecting their imagined legal systems over actually creating a better world – “the object of their desire”. We assume that our interventions are both objective and important, but we receive validation for that assumption only within our own communities of practice. Hence we perform for them.

Others do the same, for their communities. Not only performances of legality, but also vicarious litigations, proceed in parallel. Victories are abundant, and losses do not register. The invasion of Iraq, and Israeli policy in Palestine, each remain both “lawful” and “unlawful” depending on which imagined legal system they are tried under. Consequently, we must also reckon with the abandoned argument, the unresolved dispute itself, where the breach of one community’s law may be the application of another community’s law. PIL is as much complicit as it is innocent. These breaches of PIL are concurrently actualisations of (another) PIL.

This brings to light a distinction between laws which impact the material world (actualized laws) and those which do not. This distinction is important, because compliance and enforcement are contingencies. If we assume these simply should occur, we disguise the impediments to realising our preferred interpretations; we cannot perceive the reasons our demands were not realised. 

At a deeper level, this suggests an explanation of why certain laws are actualised and others are not. PIL is part of a larger system, and that larger system dictates which visions of PIL will be realised, and which will not: who will “do law” and who produce “performances of legality”. It allows us to perceive, and clarify, the fate of most ethical claims expressed through PIL: they are not realised. This is best explained by the constraints imposed by the greater system, the ongoing coloniality of actualized PIL, but that is a story for another day.

^[1] Rajkovic N., “Performing “Legality” in the Theatre of Hostilities: Asymmetric Conflict, Lawfare and the Rise of Vicarious Litigation, 21 San Diego International Law Journal (2020) 439

^[2] Id., at 440

^[3] Id., at 442

^[4] Id., at 437

^[5] Id.

^[6] Id., at 440

^[7] Rajkovic 442

^[8] Id.

^[9] Id., at 444

^[10] Id., at 456

^[11] Wenger-Trayner B. and E. “Communities of Practice a Brief Introduction”.

^[12] Ibid, 1.

^[13] Ibid.

^[14] Ibid.

^[15] Ibid.

^[16] Bianchi A. “Epistemic Communities” in d’Aspremont J. and Singh S. (Eds), Concepts for International Law – Contributions to Disciplinary Thought 266.

^[17] Schlag P. The Enchantment of Reason p. 9.

^[18] Ibid