The Destiny of International Law

Leiden Journal of International Law

Volumn 17, Issue 3, 2004, Pages 441-476

  Orford, Anne ^a  

^a UNIVERSITY OF MELBOURNE   (Australia)

Author keywords

anxiety; crisis; inheritance; repetition; sovereignty

Indexed keywords

EID: 33845236771     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156504001980     Document Type: Article

References (212)

1. The UNMillennium Declaration, UN Doc. A/RES/55/2 (2000), paras. 1, 3.
2. The UNMillennium Declaration., paras. 5, 32.
3. See M. Koskenniemi, ‘Legal Cosmopolitanism: Tom Franck's Messianic World’, (2003) 35 New York University Journal of International Law and Politics 471, 486.
4. Implementation of the United Nations Millennium Declaration, Report of the Secretary-General, UN Doc. A/58/323 (2003).
5. Implementation of the United Nations Millennium Declaration., para. 2.
6. Implementation of the United Nations Millennium Declaration., para. 3.
7. Implementation of the United Nations Millennium Declaration., para. 4.
8. For a meditation on the phrase ‘the time is out of joint’, and itsmeaning forwhat he terms mondialisation, see J. Derrida, Specters of Marx: The State of the Debt, theWork ofMourning, and the New International (1994), 77-94.
9. G. Borradori, Philosophy in a Time of Terror: Dialogues with Jü rgen Habermas and Jacques Derrida (2003), 27.
10. H. Charlesworth, ‘International Law: A Discipline of Crisis’, (2002) 65 Modern Law Review 377.
11. Borradori, ‘International Law: A Discipline of Crisis’ note 9, 87.
12. English international lawyers, for instance, have long been haunted by the ghost of legal philosopher John Austin,who argued that international law is not law ‘properly so called’: J.Austin, The Province of Jurisprudence Determined (1954 [1832]), 139. The essence of the well-worn Austinian argument is that law is the command of a sovereign in the character of a political superior, backed up by force and habitually obeyed. Austin was quite specific in his assertion that international law was not law. Despite the fact that international law emanated from sovereign states, those sovereigns could not bind each other. International society lacked an overarching sovereign and, thus, ‘an imperative law set by a sovereign to a sovereign is not set by its author in the character of political superior’.
13. S. Freud, ‘Beyond the Pleasure Principle’, in The Standard Edition of the Complete PsychologicalWorks of Sigmund Freud, ed. James Strachey, vol. XVIII (1961) (hereafter Beyond), 7; J. Derrida, The PostCard: From Socrates to Freud and Beyond, trans. A. Bass (1987), 257-409; S. Felman, Jacques Lacan and the Adventure of Insight (1987), 98-159.
14. For the argument that Freud discovered in theOedipusmyth ‘not an answer but the structure of a question’, see Felman, ‘Beyond the Pleasure Principle’ note 14, 103.
15. B. Simma (ed.), The Charter of the United Nations: A Commentary (2002) (hereafter Commentary), 73.
16. M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2001).
17. The Gentle Civilizer of Nations: The Rise and Fall of International Law., at 510-11.
18. See also The Gentle Civilizer of Nations: The Rise and Fall of International Law., at 361, for the reference to the ‘Oedipal urge’ involved inKoskenniemi's recounting of the work of Hersch Lauterpacht.
19. This section develops the ideas published in A. Orford, ‘The Gift of Formalism’, (2004) 15 EJIL 179.
20. M. Koskenniemi, ‘Review of Bruno Simma, The Charter of the United Nations: A Commentary’, (1996) 17 Australian Year Book of International Law 227.
21. Commentary, ‘Review of Bruno Simma, The Charter of the United Nations: A Commentary’ note 16, vii.
22. In response to a question on 22 January 2003 about European opposition to the use of force in Iraq, US Defense Secretary Donald Rumsfeld replied: ‘You're thinking of Europe as Germany and France. I don't. I think that's old Europe. If you look at the entire NATO Europe today, the centre of gravity is shifting to the east and there are a lot of new members’: J. Hooper and I. Black, ‘Anger at Rumsfeld attack on “old Europe” ‘, Guardian, 24 Jan. 2003, available at http://www.guardian.co.uk, accessed July 14 2003.
23. For an analysis of a similar image of the Covenant of the League of Nations as the charter of international society, and of international law as a complete system or autonomous legal order, as it appears in the work of Hersch Lauterpacht, see Koskenniemi, response to a question on 22 January 2003 about European opposition to the use of force in Iraq, US Defense Secretary Donald Rumsfeld replied: ‘You're thinking of Europe as Germany and France note 21, 361-88.
24. Commentary, For an analysis of a similar image of the Covenant of the League of Nations as the charter of international society note 16, 16.
25. Commentary., at 84
26. Commentary., at 495.
27. Commentary., at 248.
28. Commentary., at 702.
29. Commentary., at 17.
30. Commentary., at 15.
31. Commentary., esp. at 156-8.
32. Commentary., at 157.
33. Onthe absence of any international law rule allowing for humanitarian intervention or the rescue of a state's own nationals, see Commentary., 130-3.
34. Onthe absence of any international law rule allowing for humanitarian intervention or the rescue of a state's own nationals., at 792.
35. Onthe absence of any international law rule allowing for humanitarian intervention or the rescue of a state's own nationals., at 803-4.
36. Onthe absence of any international law rule allowing for humanitarian intervention or the rescue of a state's own nationals., at 791.
37. SeefurtherT.M.Franck, Recourse toForce: StateActionagainstThreatsandArmedAttacks (2002).Franckadvocates a reading of the UN Charter based on the statement of St Paul in II Corinthians: ‘The letter killeth, but the spirit giveth life’ (174). For Franck, while the ‘literal’ text of the UN Charter does not allow for anticipatory self-defence or humanitarian intervention, the Charter isnot a ‘static formula’ but a ‘constitutive instrument’ that can be adapted by the practice of the UN's principal organs and by members through state practice (6). Franck argues that the Charter has been adapted to allow for a much broader reading of the right of self-defence to encompass anticipatory self-defence or the rescue of a state's nationals abroad, and for an approach to humanitarian intervention that would treat it as excusable if illegal.
38. Commentary, Recourse toForce: StateActionagainstThreatsandArmedAttacks note 16, 713-14.
39. Commentary., at 754.
40. Commentary., at 759, quoting ‘Supplement to an Agenda for Peace’, UN Doc. A/50/60-S1995/1, 3 Jan. 1995, para. 80.
41. Commentary, Commentary note 16, at 664.
42. Commentary., at 663.
43. D. Kennedy, ‘The International Style in Postwar Law and Policy’, (1994) Utah Law Review 7, 14.
44. M. Hardt and A. Negri, Empire (2000).
45. Commentary, Empire note 16, 898, 337.
46. Commentary., at 337.
47. Commentary., at 914, 905.
48. Commentary., at 915.
49. Commentary., at 914.
50. Commentary., at 911.
51. Commentary., at 898.
52. Commentary., at 905.
53. C. Douzinas, The End of Human Rights (2000), 329.
54. A.-M. Slaughter, ‘A Chance to Reshape the UN’,Washington Post, 13 April 2003, B7. See further the discussion of Slaughter's position in section 2 below.
55. Commentary, ‘A Chance to Reshape the UN’ note 16, 744.
56. E.g. the section by Rauschning on Art. 75 links the principle of rule over a foreign population expressly for its benefit ‘by fully developed States acting as trustees’ underpinning this system directly (if uncritically) with the writings of de Vitoria and the speeches of Edmund Burke on India (Commentary., 1099).
57. the section by Rauschning on Art., at 1107.
58. See particularly A. Anghie, ‘Time Present and Time Past: Globalization, International Financial Institutions, and the ThirdWorld’ (2000) 32 New York University Journal of International Law and Politics 243.
59. Hardt and Negri, ‘Time Present and Time Past: Globalization, International Financial Institutions, and the ThirdWorld’ note 47.
60. Hardt and Negri., at 4.
61. Hardt and Negri., at xii, 4.
62. Hardt and Negri., at 37.
63. Hardt and Negri., at 14.
64. Commentary, Hardt and Negri note 16, 165.
65. Commentary., at 166.
66. Derrida, Commentary note 14, 283.
67. Derrida., at 284.
68. Derrida., at 345.
69. Commentary, Derrida note 16, 3.
70. Commentary., at 6.
71. Commentary., at 8. Delbrü ck on Art. 25 is much more confident about the existence of such ‘founding fathers’ and persistently refers to them in fixing the meaning of controversial texts, for example at 448 ('in the eyes of the authors'), 447 ('according to the will of the authors'), 445 ('the intentions of the authors').
72. Commentary., at 1379.
73. Commentary., at 1379-80.
74. Commentary., at 1377.
75. Commentary., at 21-3.
76. Commentary., at 21.
77. B. Simma (ed.), The Charter of the United Nations: A Commentary (1995), vii.
78. Douzinas, The Charter of the United Nations: A Commentary note 57, 329.
79. M. J. Glennon, ‘The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter’, (2001-2) 25 Harvard Journal of Law and Public Policy 539, 541.
80. A.-M. Slaughter, ‘Good Reasons for Going Around the UN’, New York Times, 18March 2003, A33.
81. Koskenniemi, ‘Good Reasons for Going Around the UN’ note 17, 483.
82. Koskenniemi., at 481.
83. Koskenniemi., at 483-4.
84. Koskenniemi., at 484.
85. M. Koskenniemi, ‘ “The Lady Doth Protest TooMuch”: Kosovo and the Turn to Ethics in International Law’, (2002) 65 Modern Law Review 159.
86. Koskenniemi, ‘ “The Lady Doth Protest TooMuch”: Kosovo and the Turn to Ethics in International Law’ note 17, 489.
87. See, e.g., Charlesworth, Koskenniemi note 14, 377; A. Orford, ReadingHumanitarian Intervention: Human Rights and the Use of Force in International Law (2003).
88. A.-M. Slaughter, ‘A Chance to Reshape the UN’,Washington Post, 13 April 2003, B7.
89. Douzinas, ‘A Chance to Reshape the UN’ note 57, 328.
90. Douzinas., at 330.
91. Douzinas., at 332.
92. The visibility of a crisis of authority in modern law is one of the effects of terrorism more generally. The fiction of a stable relationship between violence, territory, and authority is disrupted by acts of violence which are not controlled by the sovereign. The sense of a solid ground for the law, whether national or international, is undone by the inability successfully to ground a definition of terrorism in any regime of facts, truth, or morality. Ed Morgan has suggested that part of the horror felt as a result of witnessing a terrorist attack is the ‘transfer of violence’ to the viewer's ‘own vulnerable and unstable state of mind’. The viewer who experiences a sense of disintegration does so not only because he or she is faced with scenes of death and destruction, but because of the reminder that there is no stable or coherent authority grounding the law or its subjects. See further E. Morgan, ‘International Law's Literature of Terror’, (2002) XV Canadian Journal of Law and Jurisprudence 317.
93. For the argument that ‘evidence in law makes up for the violence found at the non-legal origin of criminal procedure’, see P. Rush, ‘Deathbound Doctrine: Scenes of Murder and Its Inheritance’, (1997) 16 Studies in Law, Politics and Society 71, 77.
94. Franck, For the argument that ‘evidence in law makes up for the violence found at the non-legal origin of criminal procedure’ note 40, 67.
95. Franck., at 65.
96. S/RES/1368 (2001) of 12 Sept. 2001; T. M. Franck, ‘Terrorism and the Right of Self-Defense’, (2001) 95AJIL 839, 842.
97. S/RES/1383 (2001) of 12 Sept. 2001, para. 3.
98. Franck, S/RES/1383 note 40, 67.
99. Franck., at 67-8. For Franck, this ‘evidentiary requirement’ arises ‘after, not before, the right of self-defense is exercised’. Thus a state may in its ‘sole judgment’ determine ‘whether an attack has occurred and where it originated’.Only after the resort to force in self-defence must a state demonstrate ‘that it is acting against the party guilty of the attack’ and not against an ‘innocent party’: Franck, Franck note 104, 842.
100. Charlesworth, Franck note 11, 382-4.
101. N. Philadelphoff-Puren and P. Rush, ‘Fatal (F)laws: Law, Literature andWriting’, (2003) 14 Law and Critique 191, 201: ‘the practice of judgement is not reducible to the task of finding the facts, as if the statement of the case is a correct reflection and reproduction of the state of affairs in the world-as if it were possible to find facts and not write them’. To the extent that law is unable to see itself as writing, ‘law understands itself as reflecting a state of affairs, rather than producing it, and. it believes it can control the contexts in which its texts emerge and take on meaning’ (202).
102. Even if the United States had been willing to submit to the authority of the United Nations, terrorism makes visible the absence of a stable and legitimate authority capable of allowing us to agree on the ‘facts’ about terrorism. International law has long been unable to reach a common definition of terrorism, or to agree on measures to enable a collective response to terrorism under the auspices of an international organization. As James Der Derian comments, ‘outside the state, with no sovereign authority (in both the juristic and linguistic senses) to rule on legitimacy, we cannot establish facts whichwill bring an end to terrorism’: J. Der Derian, Antidiplomacy: Spies, Terror, Speed, andWar (1992), 82.
103. Secretary of State Colin L. Powell, Remarks to the United Nations Security Council, 5 Feb. 2003, available at http://www.state.gov/secretary/rm/2003/17300pf.htm, accessed 8 July 2003.
104. Remarks by the President in Address to the Nation, The Cross Hall, 17 March 2003, available at http://www.whitehouse.gov/news/releases/2003/03 (accessed 12May 2003).
105. Remarks by the President in Address to the Nation. The assertion of an authorization to use force in response to Iraq's ‘material breaches of its disarmament obligations under relevant Security Council resolutions’ was later relied on in Letter Dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, 21March 2003, S/2003/351.
106. M. Dowd, ‘Powell without Picasso’, New York Times, 5 Feb. 2003, A27.
107. On the ‘double veils of cloth and flags’, see M. Hansen, ‘Statement on Critical Inquiry in the 21st Century’, Critical Inquiry Editorial Board Meeting, Public Symposium, 11 April 2003, available at http://www.uchicago.edu/research/jnl crit-inq/typewriter.html, accessed 12 June 2003.
108. Dowd, On the ‘double veils of cloth and flags’ note 115.
109. Dowd., at 993.
110. Dowd., at 991, 993.
111. The phrase ‘terror bombing’ is taken from H. B. Chipp, Picasso's Guernica: History, Transformations, Meanings (1988), 156.
112. Derrida, The phrase ‘terror bombing’ is taken from H. B. Chipp note 118, at 963.
113. Picasso's painting had been commissioned by the Spanish Republican government, and from that point on worked as a critique of the legitimacy of the fascist rebels and later of the government they established. Picasso instructed his friends and his lawyer that the painting was not to return to Spain until a democratic regime and individual liberties were established. As a result, the painting remained a ‘refugee’ from Spain until its ‘homecoming’ in 1981. See further P. Picasso and R. Dumas, ‘The Future of Guernica’, Press Release issued on 15 April 1977 by Picasso's lawyer Roland Dumas, reprinted in E. C. Oppler (ed.), Picasso's Guernica (1988), 153-5; Chipp, Derrida note 121, 170-91.
114. John Berger, ‘Success and Failure of Picasso’, in Oppler, Picasso's painting had been commissioned by the Spanish Republican government, and from that point on worked as a critique of the legitimacy of the fascist rebels and later of the government they established note 123, at 267, 271.
115. Derrida, ‘Success and Failure of Picasso’ note 118, at 943.
116. As thehistorian of bombing Sven Lindqvisthas shown, European powers realizedmuchearlier that bombing allowed them to exercise ‘controlwithout occupation’ to pacify ‘restless natives’-for instance in the French and Spanish bombing of their respective parts ofMorocco in 1912, and in Britain's bombing of India's northwest in 1915, Egypt in 1916, Afghanistan and Somalia in 1919, Trans-Jordan in 1920, and Iraq in 1920. See S. Lindqvist, A History of Bombing (2001), 100-2.
117. See particularlyG. L. Steer, ‘The Tragedy of Guernica: TownDestroyed inAirAttack’, The Times, 28April 1937, reprinted in Oppler, As thehistorian of bombing Sven Lindqvisthas shown note 126, at 160, 161. ('In the form of its execution and the scale of the destruction wrought,noless thanintheselectionof its objective, theraidonGuernica is unparalleled inmilitaryhistory.')
118. On the figure of the fallen warrior as a reference to the eleventh-century manuscript of the Apocalypse of Saint-Sever, see E. C. Oppler, ‘Introductory Essay’ in Oppler, ‘The Tragedy of Guernica: TownDestroyed inAirAttack’ note 123, at 45, 92.
119. W. Benjamin, ‘TheWork ofArt in theAge ofMechanical Reproduction’, in Illuminations, trans. H. Zorn (1970), at 211. On ‘Guernica in Paris: July-Oct. 1937’, see Chipp, On the figure of the fallen warrior as a reference to the eleventh-century manuscript of the Apocalypse of Saint-Sever note 121, at 137-55.
120. Benjamin, ‘TheWork ofArt in theAge ofMechanical Reproduction’, at 234-5.
121. R. Penrose, Picasso: His Life andWork (1958), 318.
122. M. Leiris, ‘Faire-part’, Cahiers d'Art, no. 4-5, 128, trans. E. C. Oppler, in Oppler, Picasso: His Life andWork note 123, at 210.
123. J. Bergamý n, ‘Naked Poetic Truth’, in Oppler, ‘Faire-part’ note 123, at 201, 202.
124. S.McVeigh, P.Rush, and A.Young, ‘AJudgmentDwelling inLaw:Violence and theRelations of LegalThought’, in A. Sarat (ed.), Law, Violence, and the Possibility of Justice (2001), 101, 107.
125. President's Remarks at the United Nations General Assembly, New York, 12 Sept. 2002, available at http://www.whitehouse.gov/news/releases/2002/09/print/20020912-1.html (accessed 12May 2003).
126. US Committed toWorking Toward Democratic Iraqi Government, White House Statement on Salahudeen meeting, 1 March 2003, available at http://www.usembassy.it/file2003 02/alia/a3022801.htm (accessed 11March 2003).
127. Deputy Secretary of Defense Paul Wolfowitz, Remarks at Town Hall Meeting with Iraqi-American Community, Michigan, 23 Feb. 2003, available at http://www.defenselink.mil/speeches/2003 (accessed 26 May 2003).
128. J.Wright, ‘US Plans for Two-Year Occupation of Iraq’, Reuters News, 11 Feb. 2003.
129. Amnesty International, Iraq: On Whose behalf? Human Rights and the Economic Reconstruction Process in Iraq, available at http://web.amnesty.org/library/print/ENGDME141282003 (accessed 7 July 2003).
130. This might appear to be decided by Security Council Resolution 1483, which in its preamble refers to the United States and theUnitedKingdom as the ‘occupying powersunder unified command’ and in para. 4 ‘Calls upon the Authority, consistent with Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory’. Yet, as Thomas Grant has commented, the status of occupying power would seem to conflict with some of the obligations for legal, judicial, and political reform required of the Authority in the same resolution. See further T. D. Grant, ‘Iraq: How to Reconcile Conflicting Obligations of Occupation and Reform’, ASIL Insight, June 2003, available at http://www.asil.org/insights/insigh107a1.htm (accessed 9 July 2003).
131. J. J. Paust, ‘The US as Occupying Power over Portions of Iraq and Relevant Responsibilities Under the Laws of War’, ASIL Insights, April 2003, http://www.asil.org/insights/insigh102.htm (accessed 5 June 2003).
132. R. Dobie Langenkamp and R. J. Zedalis, ‘What Happens to the Iraqi Oil?: Thoughts on Some Significant, Unexamined Questions Regarding Occupation of Oil Fields’ (2003) 14 EJIL 417.
133. Amnesty International, ‘What Happens to the Iraqi Oil?: Thoughts on Some Significant note 140.
134. According to US State Department spokesperson Richard Boucher, foreign diplomats in Iraq have no status because ‘They're accredited to a regime that is no longer existent.’ There are now no diplomatic privileges in Iraq ‘because there's no government in Iraq’. F. L. Kirgis, ‘Diplomatic Immunities in Iraq’, ASIL Insight, June 2003, available at http://www.asil.org/insights/insigh109.htm (accessed 7 July 2003).
135. S. Goldenberg, ‘A Tour of the Palace’, The Age, 12 April 2003, 3.
136. J. Jones, ‘Saddam's Art:What Does this Painting Tell Us?’, The Age, 18-19 April 2003, Insight 9.
137. ‘The Homily on Obedience’ (1559), reprinted in A. M. Kinney (ed.), Elizabethan Backgrounds: Historical Documents in the Age of Elizabeth 1 (1975), 61.
138. M. Breitenberg, AnxiousMasculinity in EarlyModern England (1996), 1.
139. I leave to a later date the complicated questions of what a daughter might inherit, and what amothermight represent, within such a tradition, but starting points for exploring these questions are J. Butler, Antigone's Claim:Kinship Between Life andDeath (2000); J. Copjec, Imagine There's noWoman: Ethics and Sublimation (2002); L. Irigaray, Speculum of the OtherWoman, trans G. C. Gill (1985), 13-129.
140. J. Derrida, The Gift of Death, trans. D.Wills (1995), 21.
141. E. L. Santner, My Own Private Germany: Daniel Paul Schreber's Secret History ofModernity (1996), xiii.
142. S.Freud, ‘Psycho-AnalyticNotesonanAutobiographicalAccountofaCaseofParanoia(DementiaParanoides)’ in The Standard Edition of the Complete Psychological Works of Sigmund Freud, ed. James Strachey, vol. XII (1961), 9.
143. Santner, ‘Psycho-AnalyticNotesonanAutobiographicalAccountofaCaseofParanoia(DementiaParanoides)’ note 154, at 144.
144. Santner., at xiii.
145. Santner., at 15.
146. Santner., at 26, 32.
147. Santner., at 43.
148. Santner., at 61.
149. Santner., at xi.
150. Santner., at xi.
151. Santner., at 144.
152. Santner., at 144 (emphasis in original).
153. Derrida, Santner note 118, at 943.
154. Derrida., at 993.
155. Benjamin, Derrida note 129, at 247.
156. Santner, Benjamin note 154, at 144.
157. Derrida, Santner note 14.
158. Derrida., at 352.
159. Derrida., at 352-3.
160. Derrida., at 353.
161. D. Kennedy, ‘When Renewal Repeats: Thinking Against the Box’, (2000) 32 New York University Journal of International Law and Politics 335.
162. ‘When Renewal Repeats: Thinking Against the Box’., at 335.
163. ‘When Renewal Repeats: Thinking Against the Box’., at 363.
164. ‘When Renewal Repeats: Thinking Against the Box’., at 407.
165. Derrida, ‘When Renewal Repeats: Thinking Against the Box’ note 14, at 29.
166. Forother critical historiesexploring theresources offeredbythisperiodof internationallawanditsmodernist passions and fantasies, see O. Korhonen, International Law Situated: An Analysis of the Lawyer's Stance Towards Culture, History and Community (2000);N. Berman, ‘Legalizing Jerusalem or, of Law, Fantasy, and Faith’, (1996) 45 Catholic University Law Review 823; N. Berman, ‘Between “Alliance” and “Localization”: Nationalism and the New Oscillationism’, (1994) 26 New York University Journal of International Law and Policy 449.
167. Koskenniemi, Forother critical historiesexploring theresources offeredbythisperiodof internationallawanditsmodernist passions and fantasies note 17, at 504.
168. Koskenniemi., at 506.
169. Koskenniemi, Koskenniemi note 90, at 175.
170. Koskenniemi, Koskenniemi note 17, at 5, 143-78.
171. M. Foucault, ‘Two Lectures’, in idem, Power/Knowledge: Selected Interviews and OtherWritings, ed. C. Gordon, trans. C. Gordon, L.Marshall, J.Mepham, and K. Soper (1980), 104.
172. G. C. Spivak, A Critique of Postcolonial Reason Toward a History of the Vanishing Present (1999), 279 (emphasis in original).
173. J. Lacan, The Seminar of Jacques Lacan, Book VII: The Ethics of Psychoanalysis 1959-1960, ed. J.-A. Miller, trans. D. Porter (1992), 261.
174. J. Beard, The Political Economy of Desire: Law, Development and the Nation-State (forthcoming, 2004).
175. Koskenniemi, The Political Economy of Desire: Law note 20, at 92, 511. My sense of this ‘Christian poetics of the journey of the soul’ is drawn from the work of Judith Grbich, particularly ‘Ned Kelly as Fetish: Filming Law's Colonial Imaginary’, paper presented as part of the Postcolonial Legal Scholarship seminar series, Institute of Postcolonial Studies, Melbourne, 29May 2003; and ‘Semiotics andLawDown-Under-Aesthetics inChristian Juridico-Theological Tracts: TheWanderings of Faith and Nomos’, (2000) 12 International Journal for the Semiotics of Law 351.
176. Koskenniemi, Koskenniemi note 17, 54.
177. Koskenniemi., at 92-3.
178. Koskenniemi., at 109.
179. Koskenniemi., at 165-6.
180. Koskenniemi., at 126.
181. Koskenniemi., at 127.
182. Commentary, Koskenniemi note 16, 1103.
183. Commentary., at 1103.
184. Orford, Commentary note 92; Beard, Commentary note 193.
185. Felman, Orford note 14. For an exploration of the resources offered by human rights discourse as a basis for responding to the recognition of the lack that foundsmodern law, see Orford, Orford note 92, at 186-219.
186. See the discussion in Orford, Felman note 92, at 179-80, 183-5.
187. Felman, the discussion in Orford note 14, 131.
188. Felman., at 138.
189. J. Lacan, Le Séminaire, livre II: Le Moi dans la thé orie de Freud et dans la technique psychanalytique (1978), 250, translated and quoted by Felman, Felman note 14, at 132.
190. Felman, Le Séminaire note 14, at 133 (emphasis in original).
191. Felman., at 139 (emphasis in original).
192. Felman., at 136.
193. Felman., at 142 (emphasis in original).
194. Sophocles, Oedipus at Colonus, trans D. Grene, in D. Grene and R. Lattimore (eds.), Complete Greek Tragedies (1954), scene 3, 105-6, quoted in Felman., at 142.
195. Felman, Sophocles note 17, at 152.
196. Felman., at 158 (emphasis in original).
197. Felman., at 12.
198. Felman, The Juridical Unconscious: Trials and Traumas in the Twentieth Century (2002), 94-6.
199. Felman., at 95 (emphasis in original).
200. Felman. (emphasis in original).
201. Felman. (emphasis in original).
202. Derrida, Felman note 118, at 943.
203. Kennedy, Derrida note 177, at 494.
204. Kennedy., at 494-5.
205. Kennedy., at 495.
206. Kennedy., at 499.
207. Felman, Kennedy note 14, at 139 (emphasis in original).
208. Kennedy, Felman note 177, at 498.
209. Lacan, Kennedy note 208, cited in Felman, Kennedy note 14, at 136.
210. Felman, Lacan note 14, at 139.
211. Kennedy, Felman note 177, at 500.
212. Santner, Kennedy note 154, at 19.