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Kennedy urges legal activism

A LEADING international law expert has urged humanitarians to take a more pragmatic and responsible approach in their efforts at making the world more just.Speaking at a public lecture at the…

A LEADING international law expert has urged humanitarians to take a more pragmatic and responsible approach in their efforts at making the world more just.

Speaking at a public lecture at the University of Melbourne Law School this month, Professor David Kennedy of Harvard Law School revisited efforts to humanise international affairs in peace and war through legal activism and policy making.

“Humanitarians are used to thinking of their efforts as marginal, weak, barely able to be heard,” Kennedy told his audience.

“They see themselves giving advice rather than making policy, judging the statecraft of others from a safe distance.” But, he said, humanitarian professionals have become partners in governance.

In his lecture, Kennedy, the Manley O. Hudson Professor of Law at Harvard, explored this relationship. He looked at some of the difficulties which arise when humanitarian sentiments are transformed into legal and institutional projects — in human rights, in efforts to humanise global trade, and in a century of humanitarian efforts to limit the violence and frequency of warfare.

Humanitarians prefer to think of themselves off to one side, Kennedy said, “speaking truth to power, or hidden in the policy apparatus advising other people … to humanise their means and ends”.

But humanitarians increasingly do provide the terms in which global power is exercised, Kennedy said.

“We speak the same language as those who plan and fight wars. Human rights has elbowed economics aside in our development agencies, which now spend billions once allocated to dams and roadways on court reform, judicial training, and ‘rule of law’ injection.”

Additionally, the United Nations High Commissioner for Refugees designs and manages asylum, refugee and immigration policies with governments around the world, Kennedy said.

We act as if we live in a “roiling world of power”, according to Kennedy, which we struggle vainly to cover in a veil of legal rules.

But, the situation is actually the reverse, he said. There is a “global thicket of legal rules and institutions”, with only the slightest opportunities for political engagement or contest.

“An effective humanitarianism will need to find space in that world for political struggle if we are to become responsible protagonists over the terms and future of global justice,” Kennedy said.

Humanitarians think they speak truth to the powerful as representatives of somebody else, Kennedy told his audience. This may be the underrepresented, the powerless, the victimised, the voiceless.

“But we have enchanted the unrepresented, have acted as if speaking for them absolved us of our responsibility.”

“Let us speak in our own name, remembering that we, like they, are uncertain where virtue lies. Doing so might centre us in governance as people with projects, our feet to the fire of participation in power,” he said.

Kennedy said it had become routine to say that international law had little effect on the Iraq war. “Arguments by a few international lawyers that the war was illegal failed to stop the Bush administration and its allies, who were determined to go ahead regardless.” But laws of force, laws of war and laws of sovereignty also defined and appeared to legitimate the war in Iraq, Kennedy said.

Kennedy teaches international law, international economic policy, European law, legal theory and law and development at Harvard. He has practised law with the United Nations High Commissioner for Refugees and the Commission of the European Union.

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