Justine Poon is a PhD student at the Australian National University. Her thesis topic: “How a body becomes a boat” examines the ways in which law, political discourse, imagery, and metaphors shape how asylum seekers are treated and perceived in Australia. Far from the positivist, black letter law of many legal institutions, Justine describes her approach as thinking “deeply and sideways” about law. Her research is creative, speculative, and provides critical insights into how refugee discourse and policies could be challenged and reimagined.
OS: Can you explain in general terms your thesis, “How a body becomes a boat”?
JP: My thesis examines how law, language, and images mediate the way we see and treat certain bodies. I specifically examine the situation of asylum seekers who attempt to come to Australia by boat and how law, discourse, and representation transform them into objects, thereby expanding the boundaries of what the state can legally do to them.
The expressions “boat people” and “stopping the boats” are commonplace when politicians, the media and the public refer to this group of people, but the law also participates in this process of transforming people with rights into objects that are problems for the state. Instead of being dealt with as human beings, asylum seekers are categorised as “unauthorised maritime arrivals” and the volume of law that is directed towards that category treats them as problems to be removed from the territory by any means.
OS: How did you come to research this topic?
JP: One answer is that this was an extension of my honours thesis project when, under the guidance of Dr Honni van Rijswijk, I became really interested in how things that are excluded from the official records of law—such as emotions, stories, and meaningful engagement with questions of justice and injustice—can be animated and illuminated by scholarly analysis. Professor Desmond Manderson, who is my doctoral supervisor, is a singularly dynamic thinker whose work inspires me to think sideways about legal issues. This approach to law recognises the power and influence that law has over our lives and the ways in which it can determine how we live, experience, and move in the world. What is excluded by law becomes such an important and ethical question.
Another answer is that my grandfather swam from China to Hong Kong during the Second World War to find my grandmother. They then walked to China together and returned to Hong Kong later as refugees. The contingency of their citizenship, nationality, and legal status was a constant during those volatile times of colonialism, war, and revolution. This is a story about the transformation of legal status, but also a love story—a story about family, and history, a story told by a grandmother to her granddaughter whom she raised in Australia.
The transformation of legal status can be quite mythic when viewed through these overlapping lenses that are all part of the truth of the story, in the sense of being singular and yet universal. Law also works like this—moving from the general rule to the particular case and back again to the rule. This process is really interesting to me and legal scholarship allows me to hold law up to the light and observe how it produces and is produced by different narratives.
OS: In writing about the discourse of “unauthorised maritime arrivals” in Australian law, you recently wrote, “while the legal category may be emptied of meaning, context, and flesh, it is precisely this abstraction that allows the state to expand the limits of its force”. Can you explain how this disembodiment allows new levels of state violence? Could you also explain your argument that this discourse effectively draws the boundaries of national law onto the bodies of asylum seekers?
JP: Quite simply at a legal level, there is something resistant and sticky about being recognised and heard as a human before the law that makes it much harder for states to use arbitrary force against them. The Western legal tradition, operating normally, has rules against arbitrary detention and punishment without adjudication in a court of law. However, also in the Western legal tradition, there are people and objects for whom law does not operate “normally”. Think of slavery, genocide, states of emergency and martial law, internment camps, and the expanding range of powers to deal with those accused of terrorism offences, accompanied by lower burdens of proof and limited oversight of these powers.
Being defined as an “unauthorised maritime arrival” under migration legislation replaces the primary question of international refugee law, which is whether this person anticipates persecution by reason of their race, religion, nationality, political opinions, or membership of a particular social group, with the question of how they arrived in Australia. It makes the mode of arrival into a problem itself. This fact triggers consequences, including vast discretions as to the permissible force used to detain and transport asylum seekers to offshore detention centres, and limiting their ability to access the legal system in ways that contradict rule of law norms.
One of the more interesting and much-commented upon consequences is also that the “unauthorised maritime arrival” is taken to have never arrived in Australia at all, even if they are physically present within the border. This rather strange thing happens where asylum seekers are recognised just enough for the law to capture them within the realm of the state’s power but are suspended outside of the law at the same time. Things that are truly outside the borders of a state would exist outside the jurisdiction of the state, and therefore cannot be logically acted upon by the state. “Unauthorised maritime arrivals” exist in the threshold zone. In this way, the body that arrived by sea becomes the border and limit of the nation state—captured by and acted upon by Australian law but never considered inside the nation.
It is worth noting that contrary to the political discourse that focuses on hard borders when it comes to people seeking safety, borders are not immutable, and they are not always strictly regulated. In fact, it is highly desirable for states for their borders to not exist when it comes to facilitating the frictionless movement of capital, goods, and some people across the globe. When you hold an Australian passport, you can arrive in 183 countries and territories without applying for a visa. Compare this to the “unauthorised maritime arrivals”, whose very presence is forbidden and must be removed immediately according to the law. This shows that there is not a necessary relationship between the presence of foreign or alien bodies and hard border law. Some bodies trigger a strict regime of border policing and others can move through most of the world without ever feeling the force of border law.
OS: Your research describes more broadly the way in which the law disembodies its subjects. Is the disembodiment of asylum seekers qualitatively different to other forms of legal disembodiment?
JP: Yes and no. As a matter of logic and examination of how the legal system works, it could be said that law always has a limited view of its legal subjects and reduces them down to only what is relevant in answering a particular legal question. However, the benefit of looking not only at what the text of law says, but also at how that text operates on different groups of people, is that we begin to see how different norms are created in the operation of law and that these are not equally distributed. The category of “citizen” may in a technical sense be just an arbitrarily defined legal category , but the norms of the system mean that changes to its conditions would be unlikely.
However, the way in which the Australian legal system has allowed expansive and almost unchecked executive powers to decide the fates of asylum seekers should still give us pause. History has shown how quickly norms can change. The way asylum seekers are treated is very much a part of the legal system within which we all exist, citizens and non-citizens alike.
OS: What did you think of Ai Weiwei’s most recent artwork, Law of the Journey? The sculpture is made of the same rubber that is used to make many of the boats that refugees use to cross the Mediterranean, and the bodies are de-identified—you cannot see their faces and they each look similar. In some ways, it is as though his refugee bodies have themselves become the boat. What do you think about this statement?
JP: I think it is a very solid piece of public communication and I mean that positively. Ai Weiwei’s art practice is often playful and always embodied. He thinks carefully about what particular experiences might feel like and how to replicate and deconstruct that experience in art from the surrealism of being under the constant gaze of guards when imprisoned by the Chinese government to his works bringing home the tragic loss of the many schoolchildren killed in the 2008 Sichuan earthquake. Ai Weiwei’s work magnifies the individual lives caught in terrible situations due to government neglect and hostility.
In the refugee question—a question posed for all of us about how we will live in this world—it is politicians who have prevaricated, twisted and over-complicated things by introducing “complexities”. We, the public, are often told not to be naïve, and that hardened hearts are necessary if we are to avoid disaster.Vaguely and directly inflammatory insinuations that refugees are linked to national security issues and terrorism deliberately muddy the waters. Frontline medical and aid workers and refugee advocates have been insinuated to be liars and manipulators—a distraction that is mobilised against harrowing reports of harm and suffering, particularly in offshore detention camps. It is actually very straightforward—war, persecution and poverty will make people move around the world to seek safety for their families and themselves. States closing their borders to refugees mean that people will be trapped in danger where they are, or languish in in-between places such as temporary camps.
The distorted scale of the piece that is designed for people to view in a large warehouse space emphasises the immensity of the problem through the symbol of the boat. You can be up close on the ground and dwarfed by the piece, or at a slight distance and above, but still getting a sense of the infinite repetition of figures, all looking in the same direction with child figures nestling at their feet. The refugee bodies and the boat become one, as they are made of the same black rubber material that make boats crossing the Mediterranean Sea. The scale makes this into a mythic metamorphosis—bodies can become boats in law in ways that diminish their humanity, but here the boat represents a journey towards a future that is uncertain, but a future nonetheless.
The “Law of the Journey” depicts the transitional phase of law where people’s status is yet to be determined, as represented by the anonymised group of people. Individuals have become the boat, but what they become after will be determined by the laws of the countries they arrive in. Another layer of meaning in Ai Weiwei’s work is to do with how the audience interacts with it. The physicality of the large installation makes you walk around it, see it from above, and read the quotes. The texts, which ruminate on the human condition and the plight of refugees, together with the positioning of the audience’s body invokes a sense of responsibility over these bodies in stasis, looking for a future. The artwork articulates the abstracting power of law and how the power over whether these bodies can be resolved into being recognised and treated with their full humanity again depends on how the public sees them. Will we leave people in an endless state of stasis or agitate to change laws and policies to reflect humane ideals? The work does not just metonymically depict refugee journeys but implicates the responsibility of audiences who have agency as citizens to influence legal change.
OS: Can you tell me a bit about your thoughts on the need for what you term “speculative theory” in legal scholarship?
JP: I think we live in an era of rapidly deteriorating possible futures, but also of many other multiplying potential futures. Climate change and the acceleration of technologies probably embody both of these strands best. The physical transformation of the conditions for life on this planet will limit the ways in which humans and many other species can live, but may also allow other forms of life to thrive. Artificial intelligence presents utopian and dystopian possibilities.
Traditional legal scholarship, much like law itself, tends to be backward or present-looking— analysing laws that exist or cases that have been decided. But law is one of the most important systems that can organise social life and relations. How law evolves to deal with our many possible futures will be highly relevant to what those futures will look like. So we must be speculative and imaginative now,and engage in the impossible task of thinking about law for worlds and modes of life that do not exist yet.
This inevitably involves reuniting questions of law with questions of values and principles. These are deeply philosophical questions, but they are not unheard of in many moments when law has had to grapple with major societal changes. The 1951 Refugee Convention was an articulation of the principle that certain peoples whose states had failed to protect them should be availed of protection by other states. Feminist law reform looked at areas of law that produced inequality and discrimination between the genders and proposed ways to remedy that. In both these examples, the law articulated principles and values and brought them into being at the same time. Law itself can be, and has been, future-creating.
The humanities and the arts are powerful ways in which we think about the different ways things can be. Theoretical sciences are another. They can combine with legal thinking in very interesting ways. Actively thinking about future laws in a deliberate and interdisciplinary way, and doing a better job of educating the public about laws and their consequences, is what I mean by speculative legal theory. It is engaging in the serious work of dreaming up new worlds.
