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Published online by Cambridge University Press: 24 March 2023
International lawyers study international law primarily through its written texts—treaties, official documents, judgments, and scholarly works. Critical to being an international lawyer, it seems, is access to the written word, whether in hard copy or online. Indeed, as Jesse Hohmann observes, “the production of text can come to feel like the very purpose of international law.”
I thank Cassandra Allen, Eirini Fasia, Emma Macfarlane, Emma Nyhan, and Nikiforos Panagis for their assistance with research for this Article.
The Lecture was convened at 5:00 p.m., Wednesday, April 6, 202, by the Distinguished Discussant, Karima Bennoune of University of Michigan Law School, who introduced the 2022 Grotius Lecturer, Judge Hilary Charlesworth of the International Court of Justice.
This Lecture and Discussant Comment will also be published in Volume 38 of the American University International Law Review.
1 Jessie Hohmann, The Treaty 8 Typewriter: Tracing the Roles of Material Things in Imagining, Realising, and Resisting Colonial Worlds, 5 London Rev. Int'l L. 371 (2017).
2 Anne W. Gulick, Literature, Law, and Rhetorical Performance in the Anticolonial Atlantic 2 (2016). According to David Kennedy, international law's function is as a “vernacular of political judgment.” David Kennedy, Of War and Law 46 (2006).
3 See, e.g., Desmond Manderson, Law and the Visual: Representations, Technologies, Critique (2018); Desmond Manderson, Danse Macabre: Temporalities of Law in the Visual Arts (2019); Linda Mulcahy, Eyes of the Law: A Visual Turn in Socio-legal Studies?, 44 J. L. & Soc'y 111 (2017); Richard Sherwin, Visualizing Law in the Age of the Digital Baroque: Arabesques and Entanglements (2011).
4 Margaret Davies, Law Unlimited, ch. 4 (2017).
5 For example, Report of the Special Rapporteur in the Field of Cultural Rights: The Right to Freedom of Artistic Expression and Creativity, UN Doc. A/HRC/23/34 (Mar. 14, 2013); Report of the Special Rapporteur in the Field of Cultural Rights, UN Doc. A/HRC/37/55 (Jan. 4, 2018); see also Eleni Polymenopoulou, Does One Swallow Make a Spring? Artistic and Literary Freedom at the European Court of Human Rights, 16 Hum. Rts. L. Rev. 511 (2016); Paul Kearns, Freedom of Artistic Expression in International Law, 25 Art Antiquity & L. 99 (2020).
6 See, e.g., Emma Cunliffe, Nibal Muhesen & Marina Lostal, The Destruction of Cultural Property in the Syrian Conflict: Legal Implications and Obligations, 23 Int'l J. Cultural Prop. 1 (2016).
7 European Union Agency for Fundamental Rights, Exploring the Connections Between Arts and Human Rights: Report of High-Level Expert Meeting, Vienna 29–30 May 2017, at 11 (Publications Office of the European Union, 2017). See also Sarah Joseph, Art and Human Rights Law, in Research Handbook on Art and Law (Jani McCutcheon & Fiona McGaughey eds., 2020).
8 Mary Ellen O'Connell, The Art of Law in the International Community 11–12 (2019). See also the website of the “Art and International Justice Initiative,” whose mission is described as “complementing international justice research and practice, with artistic exercise.” The Initiative also promotes “different forms of arts as healing tools and as emotional channels on matters in the field of international justice. Art and International Justice Initiative, at https://artij.org/en/mission.html.
9 “Aesthetics draws on knowledge gained through reason applied to the universal human reaction of pleasure in the beautiful, perceived through the senses.” It promotes “the good of empathy, selflessness, generosity, and love.” O'Connell, supra note 8, at 7.
10 Id. at 298.
11 Id. at 8–9.
12 Maggie Farley, “Guernica” Cover-Up Raises Suspicions, L.A. Times (Feb. 6, 2003), at https://www.latimes.com/archives/la-xpm-2003-feb-06-fg-guernica6-story.html (a UN spokesperson explained that the painting was covered to avert a “diplomatic incident”).
13 Law of the Journey/Ai Weiwei, ARTPIL, at https://artpil.com/news/law-of-the-journey-ai-weiwei.
14 Miriam Bak McKenna, Designing for International Law: The Architecture of International Organizations 1922–1952, 34 Leiden J. Int'l L. 1 (2021).
15 Id. at 2.
16 Kate Miles, Painting International Law as Universal: Imperialism and the Co-opting of Image and Art, 8 London Rev. Int’l L. 367 (2020); see also Kate Miles, Visuality of a Treaty: Reflection on Versailles, 8 London Rev. Int'l L. 7 (2020).
17 Miles, Painting International Law as Universal, supra note 16, at 368.
18 Jeffery G Hewitt, Certain (Mis)Conceptions: Westphalian Origins, Portraiture and Wampum, in Routledge Handbook of International Law and the Humanities 167–68 (Shane Chalmers & Sundhya Pahuja eds., 2021).
19 Tanja Aalberts & Sofia Stolk, The Peace Palace: Building (of) the International Community 114 AJIL Unbound 117, 118 (2020).
20 See Randall Lesaffer, The Temple of Peace. The Hague Peace Conferences, Andrew Carnegie and the Building of the Peace Palace (1898–1913), in One Century Peace Palace, from Past to Present 31–33 (2013).
21 See, e.g., Marco Duranti, The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention (2017); Daniel Litwin, Stained Glass Windows, the Great Hall of Justice of the Peace Palace, in International Law's Objects (Jessie Hohmann & Daniel Joyce eds., 2018).
22 McKenna, supra note 14, at 2.
23 Duranti, supra note 21, at 29.
24 For details of the competition, see Hilde de Haan & Ids Haagsma, Architects in Competition: International Architectural Competitions of the Last 200 Years 105–13 (1988); see also Bob Duynstee, Daan Meijer & Floris Tilanus, The Building of Peace: A Hundred Years of Work on Peace Through Law: The Peace Palace 1913–2013, at 51–57 (2013). Twenty architects were invited to participate and received a fee of 2000 Dutch Guilders; the rest had to pay their own costs. See also Fred Bernstein, (Not) Going Dutch, in Carnegie Medal of Philanthropy, at https://www.medalofphilanthropy.org/not-going-dutch.
25 Compare the change in style witnessed at the Paris 1889 world exhibition: Arthur Eyffinger, The Peace Palace: Residence for Justice, Domicile of Learning 68 (1988).
26 KPC de Bazel, quoted in de Haan and Haagsma, supra note 24, at 113.
27 Duranti, supra note 21, at 31.
28 Quoted in id. at 33. This description was disputed—The New York Times referred to it as Sicilian Romanesque. Bernstein, supra note 24.
29 This was badly damaged by bombing in 1940. L'hôtel de ville de Dunkerque, at https://www.ville-dunkerque.fr/decouvrir-sortir-bouger/histoire-patrimoine/dunkerque-aujourdhui/lhotel-de-ville-de-dunkerque.
30 Quoted in Duranti, supra note 21, at 31.
31 Lesaffer, supra note 20, at 31.
32 A Design for the Palace of Peace at the Hague, XXII Architectural Rev. 80, 81–82 (1907).
33 Id. at 83.
34 September 7, 1913, quoted in Judith Resnik & Dennis E. Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms 251 (2011). The English architectural press was condescending about Cordonnier's design, describing it as “exuberant in detail and fantastic in massing” noting that it had “much of the vivacity and prettiness of the Low Countries in which it is to be built.” In its view, “English architects thought, surely rightly, that the style of the ‘Cockpit of Europe,’ dainty and debonair as is, was not the manner in which a building calculated to mark for all time the supreme arbitrament for all nations above and beyond the sword might best express its purpose.” A Design for the Palace of Peace at the Hague, supra note 32, at 80.
35 Quoted in Bernstein, supra note 24.
36 Resnik & Curtis, supra note 34, at 252; Eyffinger, supra note 25, at 74–75.
37 Duynstee, Meijer & Tilanus, supra note 24, at 56–57.
38 Vienna Secession, in A Dictionary of Modern Architecture, at https://voices.uchicago.edu/201504arth15709-01a2/2015/11/16/vienna-secession.
39 Though in fact his Peace Palace design is rather traditional. Bernstein, supra note 24.
40 Albert Christ-Janer, Eliel Saarinen 174–76 (1948).
41 KPC de Bazel, quoted in de Haan and Haagsma, supra note 24, at 113.
42 Eyffinger, supra note 25, at 72.
43 Duranti, supra note 21, at 36.
44 Id. at 39.
45 Anthony Anghie, Race, Self-Determination and Australian Empire, 19 Melb. J. Int'l L. 423, 449 (2018).
46 Duranti, supra note 21, at 36.
47 Aalberts & Stolk, supra note 19, at 121.
48 Leslie J Moran, Visual Justice, 8 Int'l J. L. in Context 431, 435 (2012).
49 Susan Sontag, On Photography 4 (1977).
50 See, e.g., Glenn Porter & Michael Kennedy, Photographic Truth and Evidence, 44 Australian J. Forensic Sci. 183 (2012).
51 See, e.g., Immi Tallgren, Come and See? The Power of Images and International Criminal Justice, 17 Int'l Crim. L. Rev. 259 (2017).
52 Certain Phosphate Lands in Nauru (Nauru v. Austl.), Preliminary Objections, Judgment, 1992 ICJ Rep. 240 (June 26).
53 On the background to the case, see Antony Anghie, “The Heart of my Home”: Colonialism, Environmental Damage and the Nauru Case, 34 Harv. Int'l L.J. 445 (1993); Cait Storr, International Status in the Shadow of Empire: Nauru and the Histories of International Law 248–52 (2020).
54 Certain Phosphate Lands in Nauru (Nauru v. Austl.), supra note 52, para. 5.
55 Certain Phosphate Lands in Nauru (Nauru v. Austl.), Memorial of Nauru, paras. 415–29 (Int'l Ct. Just. 1990).
56 See James Crawford, “Dreamers of the Day”: Australia and the International Court of Justice, 14 Melb. J. Int'l. L. 520, 540–43 (2013) (for outline of these objections).
57 Certain Phosphate Lands in Nauru (Nauru v. Austl.), supra note 52, para. 4.
58 See John Gollings, Nauru: Aerial Documentation of the Phosphate Mine, at https://johngollings.com/cultural-projects/nauru.
59 Memorial of Nauru, supra note 55, paras. 200–01 (referring to photographs 8 and 10), para. 211 (referring to photograph 5).
60 Id., para. 96 (referring to photographs 2–5), para. 212 (referring to photographs 1, 2, 8, and 9).
61 Id., para. 212 (referring to photographs 8 and 9).
62 Id., paras. 212, 214–219 (on the social and cultural effects of phosphate mining, describing a rather bucolic life in a subsistence economy).
63 Id., para. 213.
64 Id. (photographs 4 and 5).
65 150 Nat'l Geographic 344 (1976).
66 Id. at 352.
67 Certain Phosphate Lands in Nauru (Nauru v. Austl.), Verbatim Record, 39 (Nov. 15, 1991), at https://www.icj-cij.org/public/files/case-related/80/080-19911115-ORA-01-00-BI.pdf.
68 Id.
69 Id. at 44; see also 8, 10, and 30 (Barry Connell).
70 Id. at 35.
71 Id. at 9–10.
72 Certain Phosphate Lands in Nauru (Nauru v. Austl.), Verbatim Record, 14 (Nov. 22, 1991), at https://icj-cij.org/public/files/case-related/80/080-19911122-ORA-01-00-BI.pdf.
73 Id. at 32–33.
74 The ICJ upheld one that dealt with Nauru's claim to the overseas assets of the British Phosphate Commissioners. Certain Phosphate Lands in Nauru (Nauru v. Austl.), supra note 52, para. 72(3).
75 Crawford, supra note 56, at 541.
76 Id. Compare the ICJ's broader reading of the principle in East Timor (Port. v. Austl.), Judgment, 1995 ICJ Rep. 90, 102 (June 30).
77 Anghie, supra note 45, at 434.
78 Id. at 432–33.
79 In a report on a visit to Nauru in May 1990, MEK Neuhaus (DFAT) observed: “The case aside, while one might wish with mining over to forget about Nauru, it is a problem that will not go away. Having been a partner in the creation of the problem, we cannot unfortunately avoid the responsibility of being a partner in the solution. Ideally the 1968 independence settlement should have resolved the issue, but the reality is that it did not. While this may be the Nauruans’ fault, the consequences will affect not only them, but Australia and the region.” MEK Neuhaus to A. Brown, P. Shannon, H. Burmester, and J. Trotter, Nauru—Pits of the Pacific: Report of Visit 20–24 May 1990, para. 16, May 30, 1990, Foreign Affairs and Trade Minute Paper, in National Archives of Australia, NAA: A9737, 1990/3276, Pt. 1, p. 125, at https://recordsearch.naa.gov.au/SearchNRetrieve/NAAMedia/ShowImage.aspx?B=8260120&T=PDF.
80 Department of Foreign Affairs and Trade, Record of Branch Heads Meeting, at 3–5 (Peter Shannon), Jan. 16, 1990, in National Archives of Australia, NAA: A9737, 1990/3276, Pt. 1, p. 273, at https://recordsearch.naa.gov.au/SearchNRetrieve/NAAMedia/ShowImage.aspx?B=8260120&T=PDF; Briefing Note on Nauru ICJ Case, in National Archives of Australia, NAA: A9737, 1990/3276, Pt. 1, p. 280, at https://recordsearch.naa.gov.au/SearchNRetrieve/NAAMedia/ShowImage.aspx?B=8260120&T=PDF; see also Cable from DFAT Canberra to PP Nauru, Nauru ICJ Case — Visit to Nauru, May 11, 1990, in National Archives of Australia, NAA: A9737, 1990/3276, Pt. 1, para. 2, at https://recordsearch.naa.gov.au/SearchNRetrieve/NAAMedia/ShowImage.aspx?B=8260120&T=PDF (“For your information, our aim through the consultant's report is to demonstrate that Nauru was left in a good economic position at independence and if properly managed the income from its resources would have provided for its long term economic security including providing sufficient money for land rehabilitation.”).
81 E.g., the High Commissioner to Nauru, Barry Wyborn, writing to Michael Thawley, Assistant Secretary DFAT on 21 February 1990. Thawley had written (letter of February 7, 1990): “I'm not so keen on acknowledging colonial mistakes.” Wyborn replied: “I'm not too keen on carrying the sins of my fathers either but I guess what I had in mind was to draw upon the precedent set in our domestic approach to aboriginal policies. Where my recollection is that rarely is a speech made that some Minister or other doesn't recognise the self-evident fact that as late as the 1960s government policies and community attitudes were not always enlightened. Obviously there is a real problem in the particular context of the ICJ and Nauru in that any admission risks misinterpretation as acceptance of responsibility for rehabilitation. I'm not sure that has to be the case. On the other hand I wouldn't like the job of arguing our colonial policies stood the test of time. They may well stand comparison with other of their era but that is a separate point. I guess it's just my naive open honest manner: if it's true why not acknowledge it? If we don't volunteer the point I'm sure others will ram it down our throats.” National Archives of Australia, NAA: A9737, 1990/3276, Pt. 1, pp. 232, 237, at https://recordsearch.naa.gov.au/SearchNRetrieve/NAAMedia/ShowImage.aspx?B=8260120&T=PDF.
82 Helen Bogdan and Associates, Media Statement, in National Archives of Australia, NAA: A9737, 1990/3276, Pt. 1, p. 37, at https://recordsearch.naa.gov.au/SearchNRetrieve/NAAMedia/ShowImage.aspx?B=8260120&T=PDF.
83 An Australian weekly magazine, The Bulletin, ran a feature article on the case, using John Gollings’s photos. Nauru—Island in Distress, Bulletin (June 19, 1990), in National Archives of Australia, NAA: A9737, 1990/3276, Pt. 1, pp. 103–05, at https://recordsearch.naa.gov.au/SearchNRetrieve/NAAMedia/ShowImage.aspx?B=8260120&T=PDF. The weekend supplement to the newspapers The Sydney Morning Herald and The Melbourne Age also ran an article with photos. Cameron Forbes & Sebastian Costanzo, Poor Little Rich Island, Good Weekend (June 9, 1990), in National Archives of Australia, NAA: A9737, 1990/3276, Pt. 1, pp. 117–21, at https://recordsearch.naa.gov.au/SearchNRetrieve/NAAMedia/ShowImage.aspx?B=8260120&T=PDF. A popular talk-show host, Darren Hinch, interviewed John Gollings on television. Transcript Title: Nauru to Take Australia to Court Over Phosphate Mining Damage, Channel 7's Hinch (June 6, 1990), in National Archives of Australia, NAA: A9737, 1990/3276, Pt. 1, pp. 112–14, at https://recordsearch.naa.gov.au/SearchNRetrieve/NAAMedia/ShowImage.aspx?B=8260120&T=PDF (“[Photographer [Gollings]: And then there is a series of really telling images of these enormous bulldozers literally ripping and raping and raking the earth to get the top soil off to expose the phosphate, and then a series of aerial photographs which just show this extraordinary lunar effect at 20,000 feet. We went across in the island's own plane and it just showed this total devastation. It's amazing—you've actually got to look very closely at the photographs to realise that they are not a blank piece of grey photographic paper. It's that extraordinary. Journalist [Hinch]: Do you think photographs will hold the key to the emotion to sway a court case? Photographer [Gollings]: I actually think in this case that one picture really does do more than a lot of legal argument. There are one or two photographs in this exhibition which I think would win a court case.”).
84 Foreign Affairs and Trade, Minute Paper, para. 4, June 18, 1990, in National Archives of Australia, NAA: A9737, 1990/, Pt. 1, p. 58.
85 Gollings, supra note 58.
86 See Anghie, supra note 45, at 425 (arguing that Australia's role as a colonial power “powerfully influenced the origins of Australian international law”).
87 Sontag, supra note 49.
88 Ariella Azoulay, The Civil Contract of Photography (2008)
89 Ariella Azoulay, What Is a Photograph? What Is Photography?, 1 Philosophy of Photography 9, 11 (2010).
90 Alice Palmer, Image and Art in the Whaling in the Antarctic Case, in Research Handbook on Art and Law, supra note 7, at 9, 15.
91 Roland Barthes, The Third Meaning: Notes on Some of Eisenstein's Stills, Artforum (Jan. 1973).
92 Debbie Lisle, Travel, in Visual Global Politics 315 (Roland Bleiker ed., 2018). For example, Debbie Lisle argues that the more that images depict Syria as “violent, dangerous and chaotic, the more everyone's encounters with, and responses to, Syria will reflect that assumption.”
93 Sarah Sentilles, Creation Stories: The World-Making Power of Art, 73 Griffith Rev. (2021).
94 Desmond Manderson, AD 2014: A Review of Eve Darian Smith, Laws and Societies in Global Contexts—Contemporary Approaches, 8 L. & Humanities 77, 86 (2014).
