Fem Leg Stud (2015) 23:369–374 DOI 10.1007/s10691-015-9293-5 COMMENTARY

Reading UN Security Council Resolutions through Valverde’s Chronotopes Isobel Roele1

Published online: 5 October 2015  Springer Science+Business Media Dordrecht 2015

Mariana Valverde’s Chronotopes of Law aims to ‘capture in thought the openendedness and unpredictability of the multi-voice dialogue that is law’ (2015, 177). Accordingly, the book commits to ‘generate dynamic analyses’ and ‘avoid static models’ (1). To do this, Valverde draws on the work of Mikhail Bakhtin who eschewed ‘mega-scale theory’ in favour of ‘the socially-rooted, pragmatic logic of language-in-use’ (6–7). The eponymous chronotope is one of a host of Bakhtinian concepts—including heteroglossia, dialogism and hybridization—that Valverde adopts and reconfigures in order to promote dynamic analyses of law and governance. In the hands of other writers, this forbidding philosophical jargon could have derailed her pragmatic project, but Valverde has set out ‘to exclude as few readers as possible’ (177) and the terminology is mostly unobtrusive. This is chiefly because Valverde does not use Bakhtinian concepts as building-blocks in an Escherian architecture, but as a ‘set of loosely connected concepts and insights that…can shed new light on how acts of communication take place (6). This offers the reader a flexible toolkit to exploit and makes Chronotopes potentially useful in almost any field of study. The present review tests the usefulness of the Bakhtinian toolkit for studying resolutions of the United Nations Security Council (UNSC). After all, as Valverde puts it, the proof is always in the pudding (2). It finds that the loose theoretical approach of Chronotopes is invaluable as a way of thinking differently about issues even when they have received a lot of scholarly attention. In Valverde’s hands, the chronotope sheds light on how resolutions of the Security council (UNSCRs) are ‘shaped and given meaning by particular spacetimes’ (11), just as it does for & Isobel Roele [email protected] 1

Queen Mary University of London, London, UK

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feminist legal theory, the Supreme Court of Canada’s work on aboriginal rights and the conceptions of security in the works of Thomas Hobbes and Adam Smith discussed in the chapters of Chronotopes. The main challenge is whether the Bakhtinian toolkit offers a distinct approach that adds to existing temporally and spatially sensitive research.

Dynamic Analysis of UN Security Council Resolutions Valverde distinguishes Chronotopes from existing historical, geographical and anthropological approaches to law, using it to break down the artificial disciplinary divides between ‘law and–’ approaches. The chronotope does not look at space and time, but helps us understand ‘how particular temporal scales relate to or influence spatial scale choices’ (56). Moreover, Valverde does not just appropriate Bakhtin wholesale, she repurposes his literary analyses for law. This is done in chapter three which introduces a broad conception of jurisdiction that includes functional, overlapping and temporary jurisdictions beyond the state, as well as the more familiar jurisdictions of scale. Acknowledging the overlap with Foucauldian governmentality studies, Valverde distinguishes her Bakhtinian approach on the basis that it takes into account ‘aesthetic and affective dimensions’ as well as questions of time and space (33). She refers to ‘this counter-rationalist move’ as ‘mood’ which, although not expressly used in Bakhtin’s chronotope of the idyll, Valverde argues is to be found in his analyses (78–79). Different jurisdictions, then, are characterized by different time, space and mood. Valverde thinks of jurisdictions as ‘the governance of legal governance’ (83). The outcome of governance is determined by games of jurisdiction that determine both who governs and how governing takes place in a way that depoliticizes governance by turning these questions into mundane and technical issues (84) and obscuring ‘contradictions between different legal chronotopes that would otherwise pose problems’ (86). This review asks what new insights the Bakhtinian toolkit can give to the discipline of public international law (PIL). International lawyers are no strangers to issues of time and space. Moreover, it is not immediately clear what they can take from the concept of jurisdiction games, as the question of jurisdiction in PIL is rarely taken for-granted and is an intensely political issue for nation-states. Issues of the proliferation of courts and tribunals (Guillaume 2004) and the fragmentation of international law (Koskenniemi 2006) mean that states are used to ‘forum-shopping’ and jurisdiction games are not, to use Valverde’s term, ‘blackboxed’ (Valverde, 158). Perhaps the most widely-used theorization of this within PIL is Martti Koskenniemi’s concept of structural bias (Koskenniemi 2005, 600–603). The question is whether jurisdiction games offer something more. Structural bias has a limited focus on the abstract framework of institutions, such as their formal constitution, their rules of procedure and their composition, which are all static, macro-level features. Researchers of collective security, for instance, often set out the constitutional differences between the UNSC and the UN General Assembly (UNGA). Both bodies are political organs of the UN, and both have a mandate ‘to save succeeding generations from the scourge of war’ (UN Charter,

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preamble). Since they have overlapping competences, there are occasionally jurisdictional clashes, whereupon it is often pointed out that the UNGA is a deliberative organ in which all 193 UN member states are represented, while the UNSC is an exclusive 15 member executive body that prioritizes prompt and effective action over accountability and fairness. The structural bias of the UNSC is further influenced by the privileges accorded to its five permanent members (P5), China, France, Russia, the UK and the USA and by the absence of due process in its proceedings. This, albeit over-simplified, analysis then enables the researcher to understand the individual resolutions produced by the Council as the product of this bias. The macro-focus of structural bias offers useful insights into permanent features of institutional practice, but shines little light on how jurisdiction games are played in practice. The chronotope reveals aspects of UNSC practice that usually remain on the peripheries of international lawyers’ vision. Unusually among international organizations, the UNSC has the authority to impose binding obligations on states when acting under Chapter VII of the UN Charter. Resolutions under this chapter tend to receive more attention than the rest of the Council’s output, especially their operative paragraphs where the obligations are to be found. Preambular paragraphs are often dismissed as a dumping ground for ideas that failed to attract support as operative provisions (Sievers and Daws 2014, 396), and at best are said to form part of the interpretative context of a UNSCR [VCLT, Article 31(2)] which should be treated with caution because ‘there is no conscious effort to ensure that the object and purpose of each operative provision is reflected in the preamble’ (Wood 1998, 87). One of the most infamous UNSC jurisdiction games concerned the legality of Operation Iraqi Freedom of March 2003. Much debate centred on the interpretation of the operative paragraphs of Chapter VII resolution Resolution 1441 (2002). Little attention was paid to chronotopes, although, as a focus on the preambular paragraphs would have revealed, they were central to proponents’ arguments. In order to understand how the jurisdiction game unfurled, we need to think about the chronotopes of UNSCRs. The spacetime of most UNSCRs has more in common with the local police regulations that consist of time- and space-specific rules, than the modern penal codes that adopt a homogenizing spacetime that is blind to social status or context (Valverde 2015, 11–12). This is because traditionally the UNSC has dealt with geographically and temporally rooted situations such as the Syrian civil war, or North Korea’s nuclear weapons programme. Recently, this has been subject to change and the UNSC is increasingly active in so-called ‘thematic issues’ like international terrorism or women in armed conflict that lack defined spatial or temporal limits. Either way, the spacetime of a UNSCR is established in its preamble, which uses present participle verbs to establish the mise en scene, often singling out any incidents or events that precipitated the decision and also creating intertextual links with other relevant texts such as other resolutions, peace agreements or reports. The preambular paragraphs are written in the continuous present tense, so that resolutions begin with the Council recognizing that X, reiterating that Y and, almost always, recalling its previous resolutions on the issue. The preamble fixes the time and space of every resolution at the moment of its

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creation because, unlike the simple present of the operative paragraphs, its grammatical form means that resolutions cannot be decoupled from the moment of their creation. Another overlooked function of the preamble is to set the mood of the resolution. The Council uses diplo-legal formulations to convey various shades of displeasure. At one end of the scale are expressions of concern. The concern expressed is often qualified by an adjective, typically ‘strong’, ‘grave’, ‘serious’ or ‘deep’. The Council is relatively liberal with expressions of concern and in the 12 months from August 2012 and July 2013 during which time it passed 50 resolutions, the Council expressed concern 128 times. It is also relatively quick to ‘condemn’ and did so 119 times during the same time period. The acme of Council displeasure, however, is relatively rare: It only ‘deplored’ 12 times in relation to piracy, the situations in Sudan and Darfur, and North Korea. The verb is unexpected in a body built on military muscle, but it confirms a truism of Council practice: the stronger the language, the more remote the possibility of enforcement action (Talmon 2003, 457). According to the Oxford English Dictionary, ‘to deplore’ is from the Latin de¯plo¯ra¯re meaning ‘to weep bitterly, wail, bewail, deplore, give up as lost’. The connection between deploring and grieving is underwritten with helplessness. The lachrymose mood conveyed by the word, far from signaling decisive action against deplorable phenomena, often suggests that Council action will extend only to handwringing. The Council is on relatively safe ground when it expresses displeasure for the simple reason that this requires no action on the part of UN member states to accept and carry out its decisions (UN Charter, Article 25) which, since the Council was left without a standing army, is the only way it can enforce its decisions. Indeed, the Council is often vilified for being more of a ‘talking shop’ than an effective global policeman (Anderson 2009). Some international lawyers have put a positive spin on this slight, suggesting that the Council is a legislative organ (Johnstone 2008); a talking shop in the manner of, for instance, the UK Parliament. However, UNSCRs bear little resemblance to Acts of Parliament. One of the most obvious differences is that UNSCRs begin with three suspended, italicized words ‘‘The Security Council,’’. Each subsequent paragraph begins with an italicized verb in the active voice, present participles for preambular paragraphs and third person present for operative ones. Any binding obligations will be preceded with the word decides, but more often the Council calls on states and it often requests the UN Secretary General to undertake some task. The present tense of Council resolutions reflects more than the immediacy of emergency-time, it also places the Council in medias res. They are not disembodied texts as are acts of the UK Parliament. Once enacted, a piece of UK legislation exists quite independently of the body that created it. This is reflected in the way that such acts are drafted in the passive voice, ‘Be it enacted…as follows…’, with each separate provision being grammatically complete in its own right. UNSCRs, by contrast do not benefit from the legislative magic of being ‘no sooner said than done’, and the Council is a menacing presence in its resolutions, a reminder that it is an executive organ that enforces as well as makes decisions (White 2005, 21).

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All these aspects of UNSCRs are bound up in the jurisdiction games over Operation Iraqi Freedom and recognizing them sheds light on how the UK government managed to make a plausible case for legality, however distasteful that conclusion has been for many international lawyers. In a nutshell, the UK justification was that the authorization to use force given in UNSCR 678 (1990) when Iraq attempted to annex Kuwait was never terminated by the UNSC, only held in abeyance by the ceasefire recognized in UNSCR 687 (1991) (Greenwood). When UNSCR 1441 (2002) found that Iraq was in material breach of its obligations, the 12-year hiatus was said to be irrelevant because the apparently separate threats Iraq posed to international peace and security by invading Kuwait in 1990 and by failing to cooperate with inspectors in the early 2000s were part of the same continuing threat. This argument was made possible not by the operative paragraphs of 1441 that found the material breach and warned of serious consequences, but by its very first preambular paragraph which begins by ‘recalling all its previous relevant resolutions’, including 678 and 687. From this perspective, it is irrelevant that there was no agreement between Council members in the early 2000s; the preamble inscribed the latest events as another adventure in a long running epic which, as Valverde puts it in Chronotopes ‘is a one-voice story’ that, quoting Bakhtin, ‘knows only a single and unified world view’ (Valverde 2015, 7). The contemporary and vociferous dissents by China, France and Russia could not explode the unity of the Council’s voice which was both a completed action in the past, and therefore inaccessible to change, and a continuing decision in the present made possible by the scene-setting work of the overlooked preamble.

Conclusion Mariana Valverde’s Chronotopes of Law is a contribution to legal theory that transcends the limits of particular disciplines. She offers scholars working on diverse legal issues a toolkit to conduct dynamic analyses and to think differently about their objects of study. She meets the challenge to think differently about PIL by moving beyond structure as a determining factor in jurisdiction games. Readers will, as Valverde invites them to, profit from continuing the dialogue that Chronotopes begins (Valverde, 181).

Bibliography Anderson, Kenneth. 2009. United Nations Collective Security and the United States Security Guarantee in an age of rising multipolarity: The Security Council as the talking shop of the Nations. Chicago Journal of International Law 10(1): 55–90. Christopher Greenwood. 2002. Memorandum: The legality of using force in Iraq Select Committee on foreign affairs minutes of evidence, October 24. Guillaume, Gilbert. 2004. Advantages and risks of proliferation: A blueprint for action. Journal of International Criminal Justice 2: 300–303.

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Johnstone, Ian. 2008. Legislation and adjudication in the UN Security Council: Bringing down the deliberative deficit. American Journal of International Law 102(2): 275–308. Koskenniemi, Martti. 2005. From apology to Utopia: The structure of international legal argumentation, 2nd ed. Cambridge: Cambridge University Press. Koskenniemi, Martti. 2006. Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law: Report of the Study Group of the International Law Commission, International Law Commission 58th Session (2006) UN Doc. A/CN.4/L.682 (2006). Sievers, Loraine, and Sam Daws. 2014. The procedure of the UN Security Council, 4th ed. Oxford: Oxford University Press. Talmon, Stephen. 2003. Statements by the President of the Security Council. Chinese Journal of International Law 2: 419–465. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI. United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. Valverde, Mariana. 2015. Chronotopes of law: Jurisdiction, scale and governance. Oxford: Routledge. White, Nigel. 2005. The law of international organizations. Manchester: Manchester University Press. Wood, Michael. 1998. The interpretation of UN Security Council resolutions. Max Planck Yearbook of United Nations Law 2: 73–95.

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