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Abstract
The current catastrophes in the Ukraine and the Gaza Strip, and the ongoing calamities in Afghanistan, Haiti, Syria, Yemen, Iraq, Venezuela and elsewhere, all call out for a humanitarian approach to International Refugee Law (IRL). Rather than advancing towards this objective, the international community finds itself at an impasse, in which states act to enforce borders, repel potential asylum seekers, deny requisite visa and travel documents, and punish intermediaries. As a consequence, there are 35,000,000 people who have fled persecution in their country of origin in search of protection, and are currently in the limbo of refugee camps and border spaces, facing uncertain futures in potential host countries. This tragedy could be overcome if states would abide by the tenets of International Refugee Law (IRL) and, for those claimants who meet the conditions set forth by refugee treaties, provide a pathway towards protection and integration. In this article, I will offer a reading of Mikhaïl Mikhailovich Bakhtin’s work as a means of crafting an approach to understanding and applying the tenets of IRL, and in so doing make a contribution to the overlap between law and humanities.
ACKNOWLEDGMENTS
This article is the product of many years of research, and advice and input from a wide array of extraordinary scholars, including Michael Holquist, Nikolaos Pavlopoulos, James Hathaway, Ed Rubin, Julian Mortenson, Danae Azaria, Debbie Anker, and Jim Silk. I’m grateful for the incredible support I’ve received from the Rockefeller Foundation, the Guggenheim Foundation, the SSHRC, and the Canada Research Chair program.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 Victor Erlich, “Russian Formalism,” Journal of the History of Ideas 34, no. 4 (October–December, 1973): 627–38.
2 M. M. Bakhtin, Rabelais and His World. Translated by Helene Iswolsky (Bloomington: Indiana University Press, 2009).
3 Julen Etxabe, “The Dialogical Language of Law,” Osgoode Hall Law Journal 59, no. 2 (Spring 2022): 429–516.
4 Michael Holquist, Dialogism: Bakhtin and His World (London: Routledge, 2002).
5 M. M. Bakhtin, “Discourse in the Novel,” in Dialogic Imagination (Austin: University of Texas Press, 1981), 271–2.
6 M. M. Bakhtin, Speech Genres and Other Late Essays, 125.
7 Bakhtin, “Discourse in the Novel,” 293–4.
8 M. M. Bakhtin, “Author and Hero in Aesthetic Activity,” Art and Answerability 4 (1990): 23.
9 See Amit Pinchevski, “Freedom from Speech (Or the Silent Demand),” Diacritics 31, no. 2 (Summer, 2001): 70–84, 74.
10 Bakhtin, Speech Genres and Other Late Essays, 134–5.
11 Michael Holquist, 21.
12 Ibid., 22.
13 M. M. Bakhtin, “The Problem of Speech Genres,” in Speech Genres and Other Late Essays, 126.
14 M. M. Bakhtin, “Discourse in the Novel,” 340.
15 Ibid., 340.
16 Julen Etxabe, 431.
17 Lawrence M. Solan and Tammy Gales, Corpus Linguistics as a Tool in Legal Interpretation, 2017 BYU L. Rev. 1311 (2018). https://digitalcommons.law.byu.edu/lawreview/vol2017/iss6/5
18 M. M. Bakhtin, “Discourse n the Novel,” 288.
19 Julen Etxabe, 432–3.
20 Manderson, Desmond, “Mikhail Bakhtin and the Field of Law and Literature,” Journal of Law, Culture, and the Humanities 8 (2012): 1–22, 4. ANU College of Law Research Paper No. 12–39, Available at SSRN: https://ssrn.com/abstract=2122104.
21 West, Russell Jr. “Mikhail Bakhtin and Change in the Common Law.” Washington Law Review 72, no. 1 (January 1997): 291–314.
22 Ibid., 292–3.
24 See for eg Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, para. 75) indicating even more clearly that the rules of treaty interpretation reflected in Articles 31-32 are relevant to the interpretation of the Refugee Protocol.
25 Article 32 “is intended to cover both the contemporary circumstances and the historical context in which the treaty was concluded“(International Law Commission, Third Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur, document A/CN.4/167, Add.1-3 (1964), p. 59, para. 22). Furthermore, Article 32 refers to “factual circumstances present at the time of conclusion and the historical background of the treaty (O. Dörr and K. Schmalenbach, eds., Vienna Convention on the Law of Treaties: A Commentary (Springer, 2018), 624).
26 Bakhtin’s work has been applied in interesting ways to treaty negotiations with indigenous peoples. For example, Joseph Roach notes in “Mardi Gras Indians and Others: Genealogies of American Performance (Theatre Journal, Disciplines of Theatre: Theory/Culture/Text (1992, pp. 461–83) that “American Indian peace treaties, performed with songs, dances, and speeches by tribal members of the great Iroquois Confederacy, should be canonized as the first American dramas. Their premise was that Amerindian rituals, like the Greek ‘songs and dances on the threshing floor,’ constituted foundational texts in the field of American theatre research.”
27 The Office of the United Nations High Commissioner for Refugees was established on December 14, 1950, by the United Nations General Assembly. The agency is mandated to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide.
28 Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law, 4th ed. (Oxford: Oxford University Press, 2021).
29 James Hathaway, The Rights of Refugees under International Law, 2nd ed. (Cambridge: Cambridge University Press, 2021).
30 Debbie Anker, The Law of Asylum in the United States (New York: Thomson Reuters, 2023).
31 I say this to ward off arguments presented from SCOTUS Justice Scalia’s perspective, reflected for example in Conroy v. Aniskoff: “The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators.” Jonathan R. Siegel writes in the SCOTUSblog that “Scalia crystalized his thoughts into a set of lectures delivered at Princeton in 1995, which later appeared in book form. He complained particularly about reliance on legislative history, but that was merely one detail in the bigger picture. The bigger picture was that ‘[t]he text is the law, and it is the text that must be observed’ Scalia employed this textualist philosophy from that point forward. Legislative history always remained a particular sticking point. Even when Scalia joined an opinion, he made a point of refusing to join portions that relied on legislative history—a practice he continued over decades. But more generally, he argued that the goal of statutory interpretation is to implement the meaning of statutory text, not the intent behind the text” (https://www.scotusblog.com/2017/11/legal-scholarship-highlight-justice-scalias-textualist-legacy). Rather than undermining the case for liberal interpretation of refugee law, this reinforces it because the texts outlining its obligations are extremely clear, as we’ll see.
32 We find another example of public-facing proclamations in treaty negotiations with Iroquois peoples, wherein “parts of the treaty proceedings were conducted before crowds numbering in the hundreds, and they reached a more extended colonial and transatlantic audience. The printed treaties, themselves hybrid Iroquois-European creations, were also hybrid verbal forms that represented the spoken word as text“(121). M. Sandra Gustafson, Eloquence Is Power: Oratory and Performance in Early America (Chapel Hill: University of North Carolina Press, 2000).
35 “In July 1951, a diplomatic conference in Geneva adopted the Convention Relating to the Status of Refugees. It has since been subject to only one amendment in the form of the 1967 Protocol.“https://www.unhcr.org/about-unhcr/who-we-are/1951-refugee-convention
36 Robert F Barsky, “From the 1965 Bellagio Colloquium to the Adoption of the 1967 Protocol relating to the Status of Refugees,” International Journal of Refugee Law 32, no. 2 (June 2020): 340–63.
37 Some of the lawyers and scholars with whom I’ve consulted have argued that judges could look to the Travaux of the 1951 Convention in order to clarify ambiguities in the meaning of the Protocol. This seems to me incorrect, because in doing so they would be looking at negotiations in the period leading up to 1951, a political and historical context that bore very little relation to what was happening in the period 1965–67. See Paul Weis, The Refugee Convention, 1951: The Travaux Préparatoires Analysed, with a Commentary (Cambridge: Cambridge University Press, 1995); Andreas Zimmermann, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford: Oxford University Press, 2010).
38 Julian Davis Mortenson, “The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History,” American Journal of International Law 107, no. 4 (October 2013): 780–822, 781.
41 See https://academic.oup.com/ijrl/article-abstract/32/2/340/5896512?redirectedFrom=fulltext and a series of blogs for The Yale Journal on Regulation at https://www.yalejreg.com/?s=barsky.
42 See for example the list of participants, arranged with reference to their country and roles, on the UNHCR website: https://www.unhcr.org/en-us/protection/colloquia/3ae68bea8/colloquium-legal-aspects-refugee-problems-note-high-commissioner.html
43 See for example “The Legal Significance of Expert Treaty Bodies Pronouncements for the Purpose of the Interpretation of Treaties,” International Community Law Review (2020).
44 Julian Mortenson (2013), 781.
45 Ibid., 9.
47 Elena Baylis, The International Law Commission’s Soft Law Influence, 13 FIU L. Rev. 1007 (2019).
Available at: https://ecollections.law.fiu.edu/lawreview/vol13/iss6/6; D. Azaria, The Legal Significance of Expert Treaty Bodies Pronouncements for the Purpose of the Interpretation of Treaties,” International Community Law Review 22, no. 1 (2020): 33–60. doi: https://doi.org/10.1163/18719732-12341420
50 Julien Mortenson, personal correspondence 3/6/23.
51 Anthony Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2013), xx.
52 Ibid., 1. For the list of treaties that pertain to refugees, see Jahid Hossain Bhuiyan’s “Refugee Status Determination: Analysis and Application”, in An Introduction to International Refugee Law, p. 39, available at https://brill.com/display/book/edcoll/9789004226166/B9789004226166-s004.xml.
53 Gilbert Jaeger, “On the History of the International Protection of Refugees,” IRRC 83, no. 843 (September 2001): 727–37, 728.
54 United Nations General Assembly resolution 429(V) of 14 December 1950, available at http://www.unhcr.org/refworld/docid/3b00f08a27.html
55 In interpreting treaties, it is often permissible to consult preparatory materials, usually in the event of their being an ambiguity. Sometimes a treaty may make specific reference to some foundation report and that might be consulted to aid in interpretation. See for example : https://www.unhcr.org/en-us/protection/travaux/4ca34be29/refugee-convention-1951-travaux-preparatoires-analysed-commentary-dr-paul.html
56 A similar negotiation process occurred for the negotiation of the ICSID Convention, at around the same time. See https://icsid.worldbank.org/resources/publications/the-history-of-the-icsid-convention. It’s also worth recalling the International Law Commission as a complement to this discussion, since in this case leading figures in international law, rather than state representatives, assembled to address subject area topics before the states got involved with reviewing the ILC’s proposal for a treaty. See https://legal.un.org/ilc/ilcintro.shtml.
57 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted by the Assembly of Heads of State and Government at its Sixth Ordinary Session, Addis-Ababa, 10 September 1969. See https://www.unhcr.org/en-us/about-us/background/45dc1a682/oau-convention-governing-specific-aspects-refugee-problems-africa-adopted.html
58 Cartagena Declaration on Refugees, adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, Cartagena de Indias, Colombia, 22 November 1984. See https://www.unhcr.org/en-us/about-us/background/45dc19084/cartagena-declaration-refugees-adopted-colloquium-international-protection.html.
59 “[T]he Refugees Protocol 1967 could not be signed, only acceded (or succeeded) to, even though the Refugees Convention 1951, which it supplements, could be signed.” Anthony Aust, Modern Treaty Law and Practice (Cambridge, Cambridge University Press, 2013), 21.
60 See Sarah B. Snyder, “1968 Was an Anniversary Year for Human Rights. Few People Noticed.” https://medium.com/hindsights/1968-was-an-anniversary-year-for-human-rights-few-people-noticed-52eb2dc2d92a
61 Op cit.
62 Yearbook of the International Law Commission, 1966, Vol. II p. 220.
63 M. M. Bakhtin ‘slovo s ogliadkoi’ 1984: 205; 1972: 352.
64 M. M. Bakhtin, Problems of Dostoevsky’s Poetics, p. 196.
65 M. M. Bakhtin ‘slovo s lazeikoi’, Bakhtin 1984: 232–3; 1972: 400.
66 M. M. Bakhtin, Speech Genres and Other Late Essays , 233.
67 Paul Sullivan and John McCarthy, “Toward a Dialogical Perspective on Agency,” Journal for the theory of Social Behaviour 34, no. 3 (2004–09): 291–309, 292.
68 Ibid., 295.
69 Caryl Emerson. “Keeping the Self Intact during the Culture Wars: A Centennial Essay for Mikhail Bakhtin,” New Literary History 27, no. 1 (1996): 107–26.
70 Ibid., 117.
71 M. M. Bakhtin, Art and Answerability (Austin: University of Texas Press, 990), 97.
72 Paul Sullivan and John McCarthy, 307.
73 Caryl Emerson (1985), 69.
74 M. M. Bakhtin (1981), 269.
75 Edsel Tupaz, “A Dialogical-Republican Revival: Respect-Worthy Constitutionalism in Post-Conflict Northern Ireland, South Africa, and Southern Philippines,” Wayne Law Review 54, no. 3 (Fall 2008): 1295–364, 1301.
76 Holloway and Kneale, International Encyclopedia of Human Geography 2009, https://www.sciencedirect.com/topics/social-sciences/heteroglossia.
77 Edsel Tupaz, 1301.
78 Cass Sunstein, “Incompletely Theorized Agreements,” Harvard Law Review 108, no. 7 (1995): 1733.
79 Edsel Tupaz, 1318.
80 M. M. Bakhtin Dialogic Imagination, 76.
81 Draft Articles on the Law of Treaties with Commentaries, Report of the ILC to the General Assembly on the Work of its 8th Session, [1966] 2 Y.B. Int‘l L. Comm‘n 224, art. 29, para. 6, U.N. Doc A/6309/Rev.1 [hereinafter ILC Commentary].
82 Dinah Shelton, “Reconcilable Differences–The Interpretation of Multilingual Treaties,” Hastings International and Comparative Law Review 20, no. 3 (Spring 1997): 611–38, 612.
83 Ibid.
84 Anthony Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2013), xx.
85 Ibid., 387.
86 See Jean Hardy, “The Interpretation of Plurilingual Treaties by International Courts and Tribunals,” Brit. YB Int'l L. 37 (1961): 72.
87 “The predominance of French was sometimes explained, even by English speakers as late as 1939, as being due to its inherent superiority: It is impossible to use French correctly without being obliged to place one‘s ideas in the proper order, to develop them in a logical sequence, and to use words of almost geometrical accuracy. [I]t may be regretted that we are discarding as our medium of negotiation one of the most precise languages ever invented by the mind of man“(Shelton 614).
88 “The fact that French was a national language, unlike Latin, did cause some caution in drafting, as seen in the General Treaty of the Congress of Vienna, which expressly observed that the exclusive use of the French language in the treaty was not to be construed as a precedent for the future, and that every Power reserved the right to adopt, in future negotiations and conventions, the language that it had previously employed in diplomatic relations. In spite of French predominance, the United States and the United Kingdom were early proponents of English. In transmitting to the United States Senate a 1785 consular treaty with France, John Jay recommended that ‘in the future, every treaty or convention which Congress might think proper to engage in should be formally executed in two languages’. Nonetheless, at the 1919 Peace Conference, English had a difficult struggle for recognition. Ultimately, the Treaty of Versailles was concluded with authentic versions in English and French“(Shelton 614).
89 P.V. Kumar Amith and Milind Malshe, “Translation and Bakhtin’s Melalinguistics,” Perspectives 13, no. 2 (2005): 115–22.
90 Dennis Kutchins, “Bakhtin, Intertextuality and Adaptation,” in The Oxford Handbook of Adaptation Studies, ed. Thomas Leitch (Oxford: Oxford University Press, 2019).
91 Boris Buden, Stefan Nowotny, Sherry Simon, Ashok Bery, and Michael Cronin, “Cultural translation: An Introduction to the Problem, and Responses,” Translation Studies 2, no. 2 (2009): 196–219.
93 Oct. 12, 1929,49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11, 22-23 (1933), originally drafted in French.
94 Jill Barrett and Robert Beckman, Handbook on Good Treaty Practice (Cambridge: Cambridge University Press, 2020), 187–8.
95 Aust, 224.
96 “The Dynamism of Treaties” Maryland Law Review 78, no. 4 (2019): 828–81, 833.
97 Ibid., 834.
98 Ibid.
99 Ibid., 835.
100 This has led scholars to debate about the “principle of contemporaneity,” wondering if it implies a reference to language usage at the time a treaty was negotiated, concluded, or entered into force. See Richard Gardiner, Treaty Negotiation (Oxford, Oxford University Press), 292–93, Panos Merkouris “‘Treaty Interpretation and Its Rules: Of Motion Through Time, Time-Will and Time-Bubbles,” in Treaties in Motion, ed. P. Merkouris and M. Fitzmaurice (Cambridge: Cambridge University Press, 2020), Chapter 4 TRICI-Law Research Paper Series No. 003/2019, University of Groningen Faculty of Law Research Paper No. 8/2020, Available at SSRN: https://ssrn.com/abstract=3511329
Additional information
Notes on contributors
Robert F. Barsky
Robert Barsky works at the intersection of humanities and law, with a focus on border crossings. In his newest book, Clamouring for Legal Protection: What the Great Books Teach Us about Vulnerable Migrants (Hart Law/Bloomsbury Press, 2021; 2023), written while he was a Rockefeller Resident Fellow at the Villa Serbelloni in Bellagio, Barsky suggests that many stories in the Western Tradition deemed to have enduring value offer insights into current discussions about the flight and plight of vulnerable migrants. His forthcoming book, sponsored by the Guggenheim Foundation and the Rockefeller Foundation, describes the complex process whereby modern international law was negotiated, beginning in Bellagio, through a treaty negotiation replete with Cold War tensions, savage wartime bombings, massive human rights violations, sensitive negotiations and amidst struggles for civil and voting rights. Barsky is the author or editor of numerous books on narrative and law, including Undocumented Immigrants in an Era of Arbitrary Law: The Flight and Plight of Peoples’ Deemed ‘Illegal’ (2016); Arguing and Justifying: Assessing the Convention Refugees’ Choice of Moment, Motive and Host Country (2000); and Constructing a Productive Other: Discourse Theory and the Convention Refugee Hearing (1994). He is the author of two biographies of Noam Chomsky, and one of Zellig Harris, all with MIT Press. He’s the founding editor of the international open access border-crossing journal AmeriQuests, and a new journal on art and border crossing called Contours Collaborations. Barsky has been a Canada Research Chair and a visiting professor at Yale University, the University of Northampton, the University of Memphis Law School, the Institute for Advanced Studies in Toulouse, France, the Law School of VU University Amsterdam, and the Institute for Advanced Studies in the Humanities, at the University of Edinburgh.