Boundaries of discourse in the International Court of Justice : mapping arguments in Arab territorial disputes

Abstract

Territorial adjudication before the International Court of Justice (ICJ) goes beyond drawing lines on maps; it is a discursive contest over the limits of Jaw and membership in international society. For Third World states endowed with 'full' membership in the postcolonial era, how are narratives of inclusion and exclusion, as well as law and politics, constructed in the courtroom? Within the institutional biases and linguistic parameters peculiar to international law, how can postcolonial experiences be rendered intelligible before the Court? A close reading of four territorial cases involving Arab states provides a particular site to explore the legal grammars, or rules of argument, that shape international Jaw as a language. The thesis draws on new and Third World approaches to international law (NAIL) and (TW AIL) to examine processes of dialogue between the ICJ bench and bar. By seeing international law as a constraining and yet dynamic discourse, the thesis maps some of the grammars of argument used in contests of selfhood and statehood. Territorial matters between Third World states occupy a prominent place on the Court's docket, and perhaps more than any other area of law, they require confrontations with international law's colonial past. The thesis probes the tension between colonial exclusion and postcolonial 'inclusion' through the cultural experience of Arab territoriality. Arab statehood is the concept through which the thesis tests the extent of international law's universal reach and embodiment. Is international law more than a European discourse? How have Arab experiences been listened to or silenced? A number of common devices and images of international law emerge in the case studies. Drawing on Koskenniemi's work on normative indeterminacy, the thesis demonstrates how international law is articulated through the law/politics dichotomy. Without the solid ground of normative certainty, international law is instead a discourse framed by ongoing attempts at disciplinary boundary-drawing and defensive postures against politics. Through non-European examples of authority over territory, Arab experiences challenge international law's porous borders. Historical reappraisals are important tools for expanding the contours of international law's past and present dimensions. Examples of treaties formed through coercion, colonial bias and the nonrecognition of indigenous title over land are offered for examination by participating states, but are rarely translated by the bench in its judgments. The thesis shows how the Court pursues a narrow, colonial rendering of the past that perpetuates European models of statehood and selfhood in the postcolonial era. By exploring the domain of territorial adjudication through a critical lens, the thesis demonstrates the value of a discursive reading of ICJ cases. In mapping the grammars of legal argument, the thesis highlights the possibilities and limits of postcolonial membership for Third World states. Discursively, the thesis shows how the Court is a site of only limited linguistic creativity: dialects of politics, emotion and history are all uttered, but such 'extra-curial' utterances rarely shape ICJ judgments. That they are spoken at all, however, is significant, and such statements indicate the possibilities for a universalising discourse of international law.