A Monument to E. G. Wakefield: New and Historical Materialist Dialogues for a Posthuman International Law
Social Science Research Network, 2023
In this chapter, we consider a posthumanist critique of international law in relation to the mate... more In this chapter, we consider a posthumanist critique of international law in relation to the material world. Our perspective on posthumanism and international law is framed by a monument of Edward Gibbon Wakefield, the so-called 'founding father' of the colony of South Australia. Centering the monument in our dialogue, we discuss two types of materialism: New materialism and historical materialism. We argue that an engagement with new and old materialism opens possibilities for a critical engagement with posthumanism. Central to this critical engagement are themes of materiality, settler colonialism, agency, and exploitationthemes that are key for understanding the operation of international law. By identifying where the materialist theories differ, and also where they converge, we ultimately seek to identify the utility of a posthumanist critique for destabilising international law's imperialist, capitalist, racialized and patriarchal structures.
My refection on the chapters in this volume 1 is prompted by an emotional response-or rather, a s... more My refection on the chapters in this volume 1 is prompted by an emotional response-or rather, a series of emotional responses. The frst of these is my own emotional response to a publication by Edward Gibbon Wakefeld: his "A Letter from Sydney", 2 published in 1829, which served to underpin his theory of "Systematic Colonization". 3 My response to Wakefeld's arguments around the value of land prompted a wave of emotions in me, one that took me back to a second emotional moment. That second emotional moment was between contributors to the workshops which underpin this collection. I was struck, in listening to the impassioned debate between authors, how deeply they felt about value, its defnition, its use, and the work it does in the world and in their scholarship. Questions about value are not only "academic" in nature, but are deeply felt. I was taken back to these fervent discussions by my own emotional response to Wakefeld's discussion of the value of land. 4 This, then, made me particularly attentive to value in an emotional register, and I found myself reading the chapters contributed to this volume with an eye to emotional response, to feelings, or at least the traces of these that can be found in the chapters. I do not subscribe to the still-dominant view that emotion and reason are "structurally opposed", with emotion pitted against reason, and with reason superior to it. 5 Thus I am not looking for traces of emotion that might belie the writer's objectivity, or point to illegitimate bias or lack of rationality. Rather, I posit that we learn from and intellectually (not just biologically) experience 6 Ibid. at 26; see also E. Kidd White, 'Images of Reach, Range, and Recognition: Thinking about Emotions in the Study of International Law', in Bandes et al. (eds.), Research Handbook on Law and Emotion (2021), 492; M. Nussbaum, Upheavals of Thought: The Intelligence of Emotions (2008). 7 Of course, the decision to take a "straight-laced" "objective" academic-style presentation may be, in itself, an emotive form of communication. With thanks to Geof Gordon for this point.
This article sets out the major tenets of new materialism and maps out its implications for inter... more This article sets out the major tenets of new materialism and maps out its implications for international law. It considers what new materialism might offer for those of us working within international law in the way of new insights, resources, practices or politics. It first sets the contours of new materialism within the broader material turn. It then elaborates three main tenets of new materialism’s methodology, theory, and ontology: its attention to matter in its physicality; the embedded and entangled subject; and the vitality or agency of objects. The article focuses on how new materialist work might help us to understand, first, subjectivity and second, power and accountability in international law. It concludes that new materialist approaches offer important and compelling insights, working against entrenched categories and structures that continue to perpetuate or excuse violence and harm in international law’s doctrines and practices. These insights provide resources for r...
Conceptualising domestic servitude as a violation of the human right to housing and reframing Australian policy responses
Griffith Law Review
1 Modern slavery is a contested term. See Vijeyarasa and Bello y Villarino (2002), p 38; Allain (... more 1 Modern slavery is a contested term. See Vijeyarasa and Bello y Villarino (2002), p 38; Allain (2017); see Stead and Davies (2020) for a critical perspective on the characterisation of 'modern slavery' in Australia. I use the term as an umbrella under which to gather contemporary practices of slavery, servitude, forced labour and human trafficking recognised in Australian and international law.
This chapter takes three historical moments—the opium wars, the ‘war on drugs’, and the ‘war on t... more This chapter takes three historical moments—the opium wars, the ‘war on drugs’, and the ‘war on terror’, and uses these episodes to demonstrate the various ways in which interests over opium are caught up in, interrelated with, and co-productive of, international legal regimes. In particular, the chapter focuses on the ways in which opium illuminates paradoxes around and within the concept of sovereignty, and specifically how opium as an object of international law has enabled interventions in sovereign states. Physical interventions in sovereign territory, economic interventions enabled by laws that concern both the facilitation and prohibition of trade, and moral interventions based on standards of morality and civilization are considered.
This article analyses the forgotten right to continuous improvement of living conditions in ICESC... more This article analyses the forgotten right to continuous improvement of living conditions in ICESCR Art 11(1), drawing on: the travaux préparatoires; the broader context of Twentieth Century international law; and the work of the Committee on Economic, Social and Cultural Rights. It argues that we can find nascent interpretations of the right, which provide a starting point for recovering this right into broader international legal discourse. These nascent interpretations, drawn from its roots in international law, prompt a reconsideration of the meaning of Article 11(1). They contribute new ways of thinking about old debates over economic, social and cultural rights as a whole, including different perspectives on the relationship between rights and development; the meaning of continuous improvement beyond economic growth; and human rights' potential contributions to human flourishing and to more sustainable ideas of what it means to be human. I.
Principle, Politics and Practice: The Role of UN Special Rapporteurs on the Right to Adequate Housing in the Development of the Right to Housing in International Law
The United Nations Special Procedures System, 2017
This chapter considers how the approaches of the various UN Special Rapporteurs on housing have f... more This chapter considers how the approaches of the various UN Special Rapporteurs on housing have fed into the development of the content of the right to housing in international and domestic law. Here, I address two themes that emerge from the Reports of the Special Rapporteurs on adequate housing as central and enduring factors underlying the violation of the right. These themes are: women’s housing rights; and economic globalisation and the financialisation and marketisation of housing. I argue that in their work on these two issues, the Special Rapporteurs have attacked, in a deeply structural fashion, the failure of states to ensure the right to adequate housing, and in doing so have provided an important, even radical critique of the prevailing social and economic paradigm. In the context of a complex interaction among principles, politics and practice within which all Special Rapporteurs work these reports remain important normative statements on a world in which the right to adequate housing is possible, even if their impact on the ground has often been muted by those same political and practical factors.
Toward a right to housing for Australia: Reframing affordability debates through article 11(1) of the International Covenant on Economic, Social and Cultural Rights
Australian Journal of Human Rights, 2020
ABSTRACT This paper argues that engaging the content of, and state obligations for, the right to ... more ABSTRACT This paper argues that engaging the content of, and state obligations for, the right to housing under Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) can contribute to an important shift in how we think about, and mobilise around, housing affordability issues in Australia. Against a background of a widely acknowledged housing affordability crisis, the paper argues that debates over affordability unfold in particular ways in Australia, and the right to housing shows the paradoxes and problems of the housing affordability picture in a new light. The article examines three facets of housing affordability: affordability for the vulnerable or disadvantaged; housing as wealth and savings; and housing financialisation for speculation and investment. It argues that the right to housing as enshrined in ICESCR can be used as a foundation on which to build a new discourse around the right to housing in Australia; to hold governments’ actions up against an international standard; and to imagine and guide creative policy proposals.
Housing provides and protects some of our most fundamental needs. It shields us from the elements... more Housing provides and protects some of our most fundamental needs. It shields us from the elements and provides refuge from external physical threats. It gives us a base from which to build a livelihood and take part in the community, from the neighbourhood to the state. Moreover, housing provides a space in which our psychological needs can be met and fostered. As I have explored elsewhere, housing is important in the formation and protection of identity, community and place in the world (Hohmann, 2013). The recognition of the right to housing in law is based on an appreciation of the importance of housing to privacy, autonomy and freedom; its function in facilitating participation and inclusion in society; and its role in providing the material goods that make all of these things meaningful and possible. In other words, the principles that inform and underlie the right to housing include some of the most fundamental concerns of human rights (Hohmann, 2013). Moreover, while aspects of a person’s relationship with her housing and home may be protected by rights to privacy, property, liberty and security, by rights to vote and to freedom of expression, a right to housing shifts the focus, insisting that housing is not instrumental to the realization of other human needs and goods, but itself fundamental (Hohmann, 2013)
This paper considers the Grenfell Tower fire as a breach of the right to housing by the UK, in co... more This paper considers the Grenfell Tower fire as a breach of the right to housing by the UK, in contravention of its obligations under international law. I examine how the fire, the underlying housing conditions that at least in part led to it, and the government’s response, breach the elements of the right to housing under the International Covenant on Economic, Social and Cultural Rights. I concentrate on the requirements that housing must be habitable, accessible – particularly for disadvantaged groups – and in an adequate and safe location. In a close analysis of the international legal standards, I clarify the ways the UK breached the right to housing, and how those international legal standards point to its inadequate actions and response for the survivors and victims. In concluding, I suggest that although the government is likely to resist the right to housing, it remains a powerful political tool to demonstrate the government’s lack of care of its people, and its overall leg...
This Chapter suggests a research agenda on the right to housing. First, it sets out the context o... more This Chapter suggests a research agenda on the right to housing. First, it sets out the context of violation of the right, before turning to examine the right as codified in international law and in key national constitutions. It then identifies three key challenges in realising the right, which should inform and underpin research going forward: financialization; privatization, and equality.
This chapter discusses the right to housing as a human right. After setting out some of the key c... more This chapter discusses the right to housing as a human right. After setting out some of the key conceptual and theoretical questions around the right, the chapter canvasses significant international, regional and domestic constitutional protections of the right. It uses a careful reading of the right as interpreted to demonstrate the ways in which the right to housing offers a riposte to the current critique that economic, social and cultural rights are inattentive to, and unresponsive to, issues of inequality and structural injustice, and that they provide only minimal protections, rather than reaching toward more robust standards of human flourishing. In fact, the chapter’s reading of the interpretation and application of the right to housing demonstrates that those interpreting and the right have consistently paid attention to inequality, and to structural injustices of the global economy.
This chapter brings into dialogue a number of materially astute theories and methodologies in the... more This chapter brings into dialogue a number of materially astute theories and methodologies in the humanities and social sciences to consider how we might conceive of the lives of objects in international law. It begins with everyday lives—the way law and objects are woven into daily existences, drawing on ethnographies of the lived experience of law. Second, it considers the social lives of objects and biographical approaches to the lives of things, making reference to anthropological ideas, museum studies, and history, as well as ‘life writing’ and biography. Third, it considers objects as vibrant, agentive actants, drawing on ideas from Actor-Network-Theory (ANT) and science and technology studies (STS), thing theory, and also recognizing the long legal history of objects as agents. The chapter deliberately seeks to unsettle the legal and ontological categories of subject and object, to provoke reflection on how they are constructed and contested in international law.
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