A great highway network, often following the caravan routes of antiquity, will soon span the continent of Asia from Turkey and Iraq to Singapore and Saigon. Known as the Great Asian Highway … When completed, it will offer the motorist an opportunity for [a] new contact with the people of Asia by driving across 35,000 miles (55,000 km) of international roads.Footnote 1
Roads direct the movement of goods and people, as well as ideas, finance, and influence.Footnote 2 Unsurprisingly, transportation infrastructure,Footnote 3 including roads, is the focus of geopolitically significant multi-trillion dollar regional strategies,Footnote 4 including the Belt and Road Initiative (BRI),Footnote 5 India's “Act East Strategy”,Footnote 6 the Master Plan on ASEAN ConnectivityFootnote 7 (including via the Asian Development Bank (ADB) and the ASEAN states’ ASEAN Infrastructure Fund),Footnote 8 the US, Japan, and Australia Trilateral Infrastructure Partnership,Footnote 9 as well as COVID-19 relief and vaccine distribution plans.Footnote 10 Yet, due to their significant use of land, resources, and labour, their ability to redirect people and goods, and their long-lasting nature, mega-infrastructureFootnote 11 projects have significant effects.Footnote 12 These can include attacks by public and private security forces upon Indigenous and “climate” defenders,Footnote 13 land dispossession,Footnote 14 intersecting violations of Indigenous land use and environmental rights,Footnote 15 and impacts upon the climate and ecosystems.Footnote 16 The Office of the High Commission for Human Rights reports that although “physical impacts of this kind typically peak during construction and level off during operation, health, safety and security problems can persist for workers and communities, along with threats to biodiversity, natural resources and the climate”.Footnote 17
What we call “roads”, like other forms of infrastructure, form long-term and often long-distance material networks with varying impacts on closer and further populations and “environments”.Footnote 18 Moreover, viewed as widespread, expensive, long-termFootnote 19 dynamic conduits for goods, services, ideas, and impacts, roads represent “crucial spaces of flow for network society” so that “it can be argued that highways have become one of the most paradigmatic material infrastructures of the current sociocultural condition”.Footnote 20
Mega-infrastructure transport networks, including the Belt and Road Initiative (BRI) and the Asian Highway,Footnote 21 typically involve complex project financing and structures. For infrastructure lawyers, the diversity and changing nature of road sites encourage the application of localized project structures (to manage political and taxation risks, for example) alongside the “top-down” replication of international templates, precedents, and guidelines.Footnote 22 The relevance and application of international law could reasonably seem unclear to many infrastructure practitioners and policymakers more focused on navigating overlapping domestic labour, tax, or environmental law obligations.Footnote 23 Likewise, for many international lawyers, though increasingly not all,Footnote 24 infrastructure objects like roads, towers, undersea cables, canals, or power plants are front-of-mind only when their governance or impacts present possible cases (problems) or subjects for the application of international law, and are less frequently thought of as directing or shaping international law itself.
This article develops this discussion in relation to “roads”, considered as entangled in networked contexts, so that while we might identify road “edges”, these are porous and dynamic. It recognizes that infrastructure's physical materiality and interactions render it not just a background or subject for the application of international law.Footnote 25 Focusing on the BRI and the Asian Highway, I extend scholarship suggesting that, despite the indeterminacy of international law's relationships with infrastructure, entanglements between governments, financiers, constructors, and operators can cause “patterned and predictable harms” through their intersections with environments and peoples.Footnote 26 I claim that the materiality of roadways and their disrepair or non-construction are interconnected with societies and environments. But I also show how indeterminacy and an understanding of highways as contingent “networks” also support the application of fragmented, non-binding, and risk-mitigation focused legal frameworks that diffuse accountability for material construction, maintenance, and road-linked harms. Further, foregrounding roads suggests a weak role for international law in an area attracting significant political and financial capital. The power of “the road network” subsumes both alternative material structures and protective international law frameworks. Finally, I identify challenges in drawing upon a new materialist perspective to analyse “roads” – including to account for the non-material roads-not-built, and to explain how hierarchical, power-laden roadway interactions might be normatively changed.
Section I reviews the insights that new materialist approaches offer for international law, including foregrounding assemblages such as infrastructure while identifying some limitations involved in advancing the contingent nature of relationships between law, objects, people, and nature. Section II considers what, in particular, the BRI and the Asian Highway networks reveal about several areas of international law – treaties concerning cross-border projects, international investment treaties, international environmental law, and human rights law. Section III analyses how different project structures and funding “gaps” intersect with the disjointed role of international law in “regulating”Footnote 27 such infrastructure. Section IV proposes that recognizing infrastructure is interrelated with laws, environments, and peoples only takes us so far. Rather, roads suggest that while the relationship between international law and infrastructure is indeterminate, there is a pattern of preferencing the protection of investors, which diminishes the protection of others and obscures the structural causes of financing “gaps”, all of which “thrive” upon interrelationships presented as contingency and “risk”.Footnote 28
I. New Materialism, Contingency, and Challenges
A. New Materialism
Self-termed “new materialist” scholars stress “the embeddedness of all humans in the material world”, seeing material objects as exerting relational forms of agency with trajectories of their own within their entanglements.Footnote 29 This group of approaches is drawn from and related to Indigenous materialisms;Footnote 30 actor-network theory (ANT) as furthered by Bruno Latour; in Science and Technology Studies;Footnote 31 “object”, “matter”, or “thing” focused analysis; “agential realism”; and other perspectives interested in “challenging the centrality of the human”Footnote 32 and human impacts on the world.Footnote 33 Approaches described as “new materialist” are not necessarily newFootnote 34 and, as noted, are indebted to Indigenous materialism.Footnote 35 While it can be instructive to distinguish between the strands of this scholarship,Footnote 36 for the purposes of this exploratory piece, I draw generally upon “new materialist” concepts that eschew “human exceptionalism”Footnote 37 by de-centring humans from analysis and rejecting binaries, including human/non-human and subject/object. I seek to understand entities as “entangled” and “mutually constituted through and in their relations with each other”Footnote 38 so that the capacity to act, or agency,Footnote 39 extends beyond humans. This perspective “provokes us to look for power in new places and unexpected configurations, crossing the assumed boundaries of international law's horizon”.Footnote 40 And so, we look to the roads.Footnote 41
Proposing a starting point of interconnectedness involves tensions for legal study.Footnote 42 Notably, “a central undertaking for new materialisms is to question that there are discrete, fixed, and pre-existing units that can be understood to relate to each other”.Footnote 43 This presents a challenge: how can we analyse intersections between law, roads, and anything or anyone else if there are no separable discrete objects and only dynamic relationships?Footnote 44 Undoubtedly, “the issue of how to avoid reifying law, yet recognizing that it has some distinctness in the world” while being entangled within it is not resolvable here.Footnote 45 This article merely groups particular visions or aspects of shifting assemblages to highlight the material and often ignored – here, roads.Footnote 46 Thus, the terms law, international law, infrastructure, roads, environments, populations, peoples, development, investment, etc., connote some patterning and shorthand, but these are not bounded, discrete, uncontested, or unloaded categories.Footnote 47
Roads, representing connections and flows, might be well-suited for investigating new materialist insights since “the parameters one has to take into account when deciding to study a road transcend most traditional social science scales (e.g. micro/macro, diachronic/synchronic, subject/object, proximate/distant, settled/nomadic, mobile/static, form/content)”.Footnote 48 Roads must be approached with acknowledgement of their (literal) intersections and material state – for instance, their repair, quality, accessibility, or construction. Roads are an important and complex (upon reflection), but familiar (even, for some, “invisible” unless broken),Footnote 49 form of interrelationships.
ANT and new materialist “paradigms” are said to offer “neither a theory nor a method” but “a sensitivity for engaging with the world”.Footnote 50 This article draws upon examples from the BRI and the Asian Highway, informed by an analysis of documents and fourteen discussions with civil society and financiers online and in Yangon and Nay Pyi Taw, Myanmar, in 2019.Footnote 51 Unlike some related analyses,Footnote 52 it does not offer an ethnographic-type analysis of a particular (stretch of) road, it directs particular attention toward entanglements with international law. Therefore, it does not fully take up Pottage's guidance to “begin with the extensive potentialities of ‘materiality’ and ask what becomes of ‘law’ if we try to hold those potentialities open?”Footnote 53 Rather, it is inspired by such approaches to assess what foregrounding roads reveals about international law.Footnote 54
B. Contingency
It has been suggested that by emphasizing entanglement and “flat” networks,Footnote 55 where all is contingent and mutually constitutive, new materialist and ANT work can produce a form of descriptive “studied apoliticism”Footnote 56 that struggles to incorporate persistent power and patterns of inequality.Footnote 57 Roads such as those included in the BRI and the Asian Highway are interrelated, connective, and conditional, while the billions in funding directed towards them suggest their role in generating trajectories of power. I begin with the normative position that appreciating entanglement does not absolve us from analysing specificities and interactions, including vectors of power: “[n]ew materialism does not necessitate the abandonment of distinctions drawn meaningfully between modes and patterns of mattering” (emphasis in the original).Footnote 58
As the world continues to respond to COVID-19, conflicts, and disasters, mega-infrastructure projects are promoted as offering crucial stimulus to support economic recovery.Footnote 59 In doing so, officials imply that projects “themselves” will enable certain things,Footnote 60 announcing, for instance, that: “[t]his project will enhance connectivity” (emphasis added) or “liveability”Footnote 61 or “country integration”, or “create jobs while ensuring safety and efficiency of the strategic roads network” and “support institutional strengthening”.Footnote 62 Governments press claims over any perceived benefits from infrastructure developments, while presenting a perception of distance via the “project's” off-balance sheet nature (if privately financed),Footnote 63 or their limited control over the project's long-term ability to deliver on these claims. These statements promote and foreground infrastructure, connectivity, and promises by stressing the distinctiveness or innovativeness of infrastructure projects with language connoting their agency – alongside ties to jobs, integration, or liveability. Yet they also reveal infrastructure's interrelationships and contingency with an unspoken “if”: if the project is completed on budget and on schedule, employs non-discriminately and fairly, does not reduce global climate-related liveability, is maintained correctly, can be paid for … etc.
By emphasizing interaction, unpredictability, or instability, a new materialist perspective could dilute the “patterned and predictable” ways that assemblages of human/non-human injustice persist and target the same groups (perhaps, eco-systems, women and gender-diverse individuals, children, or minorities) again and again.Footnote 64 Fleur Johns, in particular, has pointed out that “modes of power for which contingency is generative” exist.Footnote 65 Some suggest that these include notions of development and Sustainable Development Goals (SDGs)Footnote 66 or that new materialist approaches benefit from association with other critical, feminist, or Third World Approaches to International Law (TWAIL) voices, some of which invite an examination of “international law as a material project in itself.”Footnote 67 For roads, a multi-lane highway “slicing through space like a great knife”Footnote 68 can be associated with green signs, tollgates, and exits in place of (just, for example) multiple smaller roads, public transportation routes, railways, or canals, or differently structured supply chains. Roadways create, destroy, or restrain alternative routes, construction materials, or methods – and are embedded within and re-promote international legal-political contexts.Footnote 69 After all, as ethnographer Dimitris Dalakoglou reminds us, the first highways were associated with the rise of fascism and modernity,Footnote 70 and roadways have delivered colonizers, slaves, and ideas since antiquity.Footnote 71 While a “network … tends to be represented as non-hierarchical”, from everyday experience, most of us will appreciate that “infrastructure imports an element of differentiation, stratification and hierarchy”,Footnote 72 including through bus lanes and tollgates. This provides further clues that infrastructure could be a useful perspective from which to appreciate the law and its hierarchies.
Not only is transport infrastructure built upon inhabited land, but roads and their shoulders or corridors are sites of plant, animal, and human life (and death);Footnote 73 of homes; of businesses; of taking and leaving; of inclusion and exclusion; of monuments and histories.Footnote 74 In some places more often than others, roads also carry troops, central government authorities, and are sites of crime, corruption, and trafficking, or “invite” military attacks as targets.Footnote 75 Highways are constructed with, or transport, forced labour and are funded by billions tied to hoped-for-influence; they lie upon devastated ecosystems and sacred areas and carry “vibrant”, powerful things:Footnote 76 goods, drugs, weapons, and people across borders. Transport networks can also be not built or maintained.Footnote 77 TWAIL and critical international law scholarship help to explain these patterned effects with reference to international law's structural colonial, gendered, and neoliberal aspects.Footnote 78 An infrastructural turn suggests that infrastructure “itself” also has a role via connections with enmeshed societies and environments.
In the next section, with reference to the BRI and the Asian Highway, I first explore how some roadways “attract” international law. I then consider how infrastructure's entanglements with environments interact with international law instruments and concepts, including “sustainable development” and project “impacts”. Foregrounding interactive infrastructure reveals patterned legal frameworks that favour investor protections and cast wider social-environmental impacts as risks to be managed.
II. Infrastructure and International Law
A. The BRI and the Asian Highway: Cross-Border Investments
As a system of standardized roads intertwining many Asian countries and with links to Europe, the [Asian Highway] network has considerably supported the realization of Asian regionalism. Footnote 79
Infrastructure projects are more likely to attract the attention of international lawyers when perceived as networks that form the subject of international treaties or cause transboundary damage. As with the International Court of Justice cases involving the Gabčikovo-Nagymaros Project damFootnote 80 or the Construction of a road in Costa RicaFootnote 81 along the border with Nicaragua, activities involving infrastructure may have “flow-on” effects elsewhere. This might be via environmental impacts, construction materials and standards, visa requirements, signage, traffic, load restrictions, and border-crossing sites. “Cross-border infrastructure” has been defined as “either an infrastructure project with activities spanning two or more countries, or a national infrastructure project that has significant cross-border impact”.Footnote 82 However, this definition sits uncomfortably with new materialist analysis. Instead, it reveals how international law sees some infrastructure assemblages as engaging state borders, attracting overt linkages to international law (treaties, memorandums, and case files). By contrast, a new materialist perspective views all infrastructure as enmeshed and inseparable from networked relationships.
Global transportation involves regional connections and, as the Silk Road and the Roman road systems exhibit,Footnote 83 has long been conceived of as an integrated “top-down” power-laden network, like the BRI and the Asian Highway Network.Footnote 84 The BRI (formerly known as “One Belt, One Road” and sometimes described as the “new Silk Road”)Footnote 85 encompasses roads, ports, bridges, pipelines, maritime linkages, telecommunications, and more, connecting Europe and Asia with links to Africa and the Pacific. It is intended to maximize “policy, infrastructure, trade, financial, and people-to-people connectivity” to “promote international co-operation”. It is funded by state-backed Chinese banks, the Asian Infrastructure Investment Bank (AIIB), other multilateral development banks, and private sources.Footnote 86 It represents an enormous vision crossing numerous state borders with components and effects that are not readily separable, involving legal-political-social-environmental entanglements, including with international law.
The Asian Highway Network is another cross-country initiative with the engagement of the United Nations (UN) Economic and Social Commission for Asia and the Pacific (UNESCAP) to develop highways across Asia. It also aims to enhance cooperation and connectivity across the region. The Asian Highway and the related Trans-Asian Railway network comprise “a large part of the potential transport routes along the six Belt and Road Initiative corridors”, meaning that they form part of the larger BRI vision, the purpose of which is to connect China to networks beyond the BRI, within which roads are just one aspect.Footnote 87 The connections among and beyond these mapped slices of planned and to-be-improved transportation infrastructure routes result from and lead to these overarching plans. The scope and funding of these initiatives reflect an intuition that transportation networks, including roads, are powerful, “emerg[ing as] entities that generate particular worlds, and while doing so, they make and break particular relations”.Footnote 88
Roads arguably attract a networked “top-down” approach to reduce trade costs, improve logistics, and offer other efficiency gains, though these are not guaranteed.Footnote 89 For instance, the ADB has argued for “the creation of a seamless Asia – an integrated region connected by world-class, environmentally friendly infrastructure”, observing that a “logistics network is only as good as its weakest link; each country in a regional supply chain gains from infrastructure improvements made in others”.Footnote 90 This responds to the materiality of “roads” physical construction (costs and materials) and connectivity, linked to an understanding of their interactions, “amplified by the scale of the project” with “higher transaction costs, more political risk and increased institutional coordination”.Footnote 91 Certainly, the construction (or remediation or expansion) of each road or each phase of a project affects the whole network (and beyond). By appreciating all as entangled and recognizing infrastructure and international law as mutually constituted, a new materialist perspective prompts (but does not answer) questions about why or when infrastructure drives demand for new money, policies, or laws to make it even more “integrated”.
Reacting to infrastructure's complexity and persistence (as “long-term assets”), scholars and practitioners have proposed various models for “good governance” of cross-border infrastructure, including “systems” approaches that seek to reflect the purpose, elements, characteristics, and interconnections of a system.Footnote 92 This may involve bilateral or transnational interactions between local municipal governments, provincial and national governments, and institutions, as well as the operation of international treaties.Footnote 93 “Institutions” for governing cross-border and regional infrastructure systemic plans can range from informal arrangements to special purpose legal entities and other legally binding frameworks, including treaty-based ones.Footnote 94 The perceived complexity of infrastructure assemblages and their materiality arguably draws systematic responses but does not necessarily involve public international law.
1. The Asian Highway, the BRI, and Treaties
The UNESCAP Asian Highway involves a treaty with thirty parties from Japan to Turkey.Footnote 95 The region has other relatively smaller agreements, such as the Greater Mekong Subregion Cross-Transport Agreement.Footnote 96 Such treaties and their annexes address topics such as signage, construction and design standards, customs, inspection arrangements, requirements for environmental impact assessments,Footnote 97 visa and immigration issues for workers, and provisions for settling disputes. By contrast,Footnote 98 the BRI is not grounded in a treaty but in a series of “Memorandums of Understanding”Footnote 99 and parts of the treaty-based Asian Highway. These documents are drafted to appear non-binding, although they may reference treaties that are.Footnote 100
Since roads are considered “investments”, investment treaties seem to be the most related area of international law for developers’ lawyers.Footnote 101 Infrastructure is often developed via complex limited liability partnerships and company structures to alter the apparent legal location of investors for taxation and other reasons so that they can “avail themselves of the important protections afforded by investment treaties”.Footnote 102 Still, characterizing a road's material location (despite its interconnections) in a particular “host” state affects which international treaty/treaties may operate. Lawyers suggest that the BRI is “likely to drive growth in demand for [investor-state dispute settlement (ISDS)] in the Asia-Pacific region”,Footnote 103 yet there are relatively few bilateral investment treaties between existing BRI participants. Closer analysis suggests that “commercial diplomacy appears to be prominent in protecting Chinese investments in Sri Lanka”, at least “leaving rights-based” investor-state protections “behind an increasing the role for the Chinese government” – diminishing the role of international law to that extent.Footnote 104 Meanwhile, investment treaties in Asia increasingly encourage mediation and conciliation rather than direct provision for arbitration.Footnote 105 Infrastructure is most clearly related to international law via treaties that protect investors. Still, while the BRI may expand the Investor-State Dispute Settlement agreement, the role of international law may be limited even in that context.
The ADB and others argue that while bottom-up infrastructure development has allowed for some subregional connectivity, it is necessary to coordinate a pan-Asian approach via more formal institutional frameworks and regulatory coordination – to fill funding “gaps” to pay for remediating material “gaps”, to address congestion in highway networks, and to ensure social (including human rights) and environmental protections.Footnote 106 This view suggests that for roads to meet an “idealized notion of seamlessly integrated systems that facilitate smooth flows of people, goods or services” across the region or the world, roads (and their apparent material limits) might generate more, or different, international law.Footnote 107 This hints at how emphasizing interconnectivity might justify or promote international law. Yet, by promoting private investment to secure this vision, it suggests a continuation of a situation where “instead of using the instruments of public international law to manage actors and transactions in the private realm, public international law was now used to effectively diminish its own scope and enhance the power of these private actors”.Footnote 108
Further, understanding infrastructure as representing dynamic and relational entanglements also suggests that “gaps, interstices, and zones of opacity” among infrastructure assemblages might be an unavoidable, even natural, state of affairs.Footnote 109 A formal institutional approach to pan-Asian infrastructure developments might require further agreements between states in the region.Footnote 110 Even so, the BRI approach indicates that this does not necessarily mean a growing role for international law treaties.
By starting with roads and seeing them as entangled with the agreements that humans and states have made about them, it becomes clear that international law treaties – even for multi-billion dollar cross-border visions – are not necessarily crucial.Footnote 111 While new materialism helps to understand how infrastructure might “attract” regulation that wrestles with its complex interconnections, it does not explain the specific patterning of that relationship: favouring binding treaties for only certain apparently “cross-border” projects (the Asian Highway, not the BRI) or to protect investors and promote private actors via investment treaties. Further, roads affect more than investors and their government procurers.
III. Roads, Environments, Humans
Road projects [forming part of the Asian Highway] have the potential to bring benefits for rural communities in Karen State … The reality is these roads are being built in conflict zones, where massive displacement has already occurred, information is withheld from local communities, and civil society and villagers are vulnerable to human rights violations. Footnote 112
The [elevated highway from New Kelani Bridge to Athurugiriya, Sri Lanka] project will ‘affect the lives of thousands of residents and animal species and rare birds that inhabit the area due to vehicular emissions, noise pollution, flooding, reduction in carbon absorption and oxygen production …’ Footnote 113
Alongside hopes that “connectivity across borders would speed up the transfer of goods and services, improve productivity network competitiveness and indirectly reduce poverty”,Footnote 114 parts of the Asian Highway have been criticized for their environmental and social impacts.Footnote 115 Components of the BRI also impact environments and peoples, including via the deforestationFootnote 116 that threatens wildlife corridorsFootnote 117 and the pollution and draining of river networks.Footnote 118 It has been suggested that human rights violations in the strategically located Xinjiang province of China and the Rakhine State of Myanmar might relate partly to their status as critical locations for the BRI.Footnote 119
If infrastructure is seen as entangled with the wider natural world, including people,Footnote 120 there should be deep connections between infrastructure, international environmental law, and human rights law. International environmental treaties address cross-border environmental impacts.Footnote 121 Activities with such impacts can be expected to be large, located in environmentally sensitive areas, “be likely to have significant effects on the population”, or have complex or adverse effects.Footnote 122 These characteristics match those of mega-infrastructure projects such as roads, refineries, dams, and railways (which may also support mining, for example).Footnote 123 Infrastructure also affects climate change, even if it is not explicitly central to the Paris Agreement on Climate Change.Footnote 124 Green energy requires infrastructure, but roads also displace forests and shape logistics and travel networks that underpin consumption and emission patterns. Transportation infrastructure can also cause and be affected by fires, floods, and landslides or require additional maintenance due to extreme weather.Footnote 125 All these issues relate to and are entangled with human behaviour.
New materialism is uneasy about focusing on human rights, given its commitment toward decentring the “human”,Footnote 126 but recognizes that humans exist within surrounding assemblages “as partners in world-making entanglements between multiple, contingently identified partners of all kinds” (emphasis in original), meaning that we can still speak of the “human” and of “human rights” while resituating that focus via recognizing humans’ immersion within surroundings.Footnote 127 This perspective suggests that “human rights” cannot be examined separately from environmental issues, whereas roads show how international lawyers conventionally distinguish between international environmental law and international human rights law.Footnote 128
A. The Asian Highway, BRI, and Mitigating/Assessing Impacts
The Central Environmental Authority (CEA) has amended a 2007 gazette declaring the ecologically-rich Thalangama wetland as an Environmentally Protected Area (EPA) to allow the elevated highway from New Kelani Bridge to Athurugiriya to cross the land. Footnote 129
The potential for roads that support the transportation of goods, services, and people to help fulfil human rights is, in some ways, self-evident.Footnote 130 But infrastructure can also have mixed and negative effects.Footnote 131 In reality, these “impacts” are intertwined with the infrastructure's material features. For example, in the case of most toll roads in Myanmar (some of which make up the Asian Highway), as a financier suggested in 2020, “these roads … were tolled, and yet they were not in a traditional sense, a ‘toll road’” because local traffic was able to avoid the toll – enhancing equitable access while undermining the economic and financial viability of the concession. Further, developers “were restricted in terms of being able to move ahead in providing a better service by various pieces of infrastructure that are around the toll road itself”.Footnote 132 In that way, the materiality of a road and its entanglement with surrounding communities and buildings, including toll gates, affects its attractiveness for investors (toll revenue) and its impact on human rights (accessibility). Further, roads require significant tracts of land, including in rural and relatively less accessible territories.Footnote 133 Where roads displace crops, forests, waterways, and wetlands, they directly affect the populations that rely upon these lands for food, homes, and cultural practices and to trade or supply others.Footnote 134
The BRI and the Asian Highway are entangled with environmental and human rights law via fragmented, non-binding guidelines. A 2017 UNESCAP report suggested that the BRI, supported by the Agreement on the Asian Highway and its design standards, in “addition to powering growth in the regional and global economy … could also make a major contribution to meeting the goals of the 2030 Agenda for Sustainable Development and the Paris Agreement on climate change”.Footnote 135 Indeed, international environment law principles are supported by a range of aspirational goals and non-binding or “soft law” instruments that do address infrastructure, and acknowledge its entanglements, in a central way, such as the 2015 SDGs.Footnote 136 The increasing prominence of infrastructure in these goals may indicate growing recognition that the “choices made in the type and scale of infrastructure investment also have major implications for environmental sustainability”,Footnote 137 which might ultimately be reflected in international environmental and human rights law. So far, international investor guidelines offer a “top-down”, though adaptable, approach toward responsible or sustainable infrastructure that both reflects and deploys an understanding of infrastructure's contingencies. Examples include the World Bank Handbook, which provides advice for establishing independent regulators; the Good Governance in Public-Private Partnerships guide; the UN Commission on International Trade Law (UNCITRAL) Model Legislative Provisions on Privately Financed Infrastructure;Footnote 138 the Model Legislative Provisions on Public-Private Partnerships;Footnote 139 the Organization for Economic Co-operation and Development's (OECD's) Recommendations on Public Governance of Public-Private Partnerships (PPPs);Footnote 140 the Policy Framework for Investment;Footnote 141 the Equator Principles;Footnote 142 the UN Guiding Principles of Human Rights Impact AssessmentsFootnote 143 and multiple land policies;Footnote 144 the UN Global Compact; and the UN Guiding Principles on Business and Human Rights. The World Bank, the ADB, and others implement in-house extensive sustainability, “social” (used more than “human rights”) and environmental guidelines and requirements.Footnote 145
However, states involved in the BRI and Asian Highway often engage (via departments or state-owned entities) constructors and planners directly via procurement and concession contracts.Footnote 146 The emphasis in many projects on privatization or private investment involves a shift toward regulation via private contracts and arbitration with guidance from industry or sector policies, and away from international or domestic judicial oversight.Footnote 147 The employment of special purpose vehicles for joint ventures and public-private partnerships (PPPs) can also obscure legal accountability. However, there may be limited cases where a state's international obligations can be attributed to a PPP, such as when an entity is empowered to exercise governmental authority or is acting on the instructions of the state.Footnote 148
Consequently, the main way that roadways are entangled with international law or guidance concerning what new materialism sees as interconnected environmental and social issues is via (often overlapping) treaties, domestic law, or financier requirements to complete environmental or social due diligence or Environmental Impact Assessments (EIAs) and Social or Strategic Impact Assessments (SIAs).Footnote 149 These may incorporate, indirectly, international laws or guidelines. In relation to the BRI, for instance, China has various domestic guidelines and policies addressing assessments. However, they arguably “appear to treat labour and other social concerns as incidental only to the environmental impact assessment requirement”.Footnote 150 In general, BRI projects are subject to “variable and fragmented” sustainability rulesFootnote 151 alongside “green” credit guidelines. At the same time, environmental or social issues are regulated mainly by “host” state regulatory frameworks and financier guidelines (such as those of the AIIB).Footnote 152 The Agreement on the Asian Highway more clearly requires an EIA, “following national standards”, to be carried out for new road projects,Footnote 153 but this approach also has its challenges.
EIAs “are tool[s] used to identify the environmental, social and economic impacts of a project prior to decision-making”, aiming “to predict environmental impacts at an early stage in project planning and design, find ways and means to reduce adverse impacts, shape projects to suit the local environment and present the predictions and options to decision-makers”.Footnote 154 If performed according to this definition, EIAs (and SIAs) could involve recognizing interconnectedness and derive projects from environmental/societal assemblages. However, in practice, EIAs identify environmental and social project impacts, effects, or “risks”Footnote 155 and specify mitigants that the project “proponent” (which can be governments, investors, or partnerships) should ensure are satisfied, although it has long been argued that EIAs should be integrated into long-term, continuous, project design and delivery plans.Footnote 156
For example, an EIA was prepared for the “WeCARE-RHD program”, the Jennaidah–Bonpara–Hatikumrul Road in Bangladesh, an “important part” of the Asian Highway, as required by the domestic Department of Environment and the AIIB.Footnote 157 The EIA, in typical fashion,Footnote 158 details physical aspects of the road (its location and materials) before including a list of “Impact[s]” and “Mitigation” measures and an array of environmental issues in a lengthy table of “issues”, “impacts”, “mitigation measures”, “location”, and “who will implement” or supervise. For instance, “Clearance of vegetation … will cause permanent and/or temporary dislocation of some wildlife”: mitigation: “[h]arming and/or killing of any types of wildlife by the workers of the project must be prohibited”.Footnote 159 In relation to possible erosion, the “Contractor is required to reuse the excavated soil as much as possible unless the soil is considered not suitable for filling”. At the same time, “[d]ebris, construction wastes, vegetation or other materials shall be not burned on the site”, nor shall waste be dumped “be it hazardous or non-hazardous into the nearby water bodies or in the river”. However, where the materials should be burned or dumped is not specified.Footnote 160
The EIA does not assess relationships between these factors or emphasize any links to international law. Impacts upon humans are not addressed in the language of “human rights”. However, the effects identified are to be mitigated via consultation or compensation,Footnote 161 for instance, in relation to resettlement and land, which for this project would affect nearly 6,000 individuals, at least.Footnote 162 The main way that listed effects are considered holistically is via the EIA's balancing of project risks and benefits, here finding that the “project will have overall positive impacts and some negative impacts. Most of these negative impacts are mainly construction related and can be mitigated by the successful implementation of the [Environmental and Social Management Plan]”. In this way, EIAs are presented as objective analyses that set up the “project” as having (possibly negative) mitigable consequences.Footnote 163 By contrast, investors, contractors, and/or public proponents are depicted, again via the EIA, as separate from the “project” but having the ability to prevent or address such contingencies. The relatively objective (usually passive) voice of the consultant or government department authors, mixing technical and quantitative data (number of trees, households) with descriptive mitigants, both produces and results from broader, power-laden patterns of constructing social and scientific knowledge.Footnote 164 These reflect interconnections, but only insofar as they generate contingencies – for which responsibility is diffused.
To be sure, EIAs present an important process for clarifying a project's interconnections –to that extent, reflecting some aspects of new materialist insight. However, first, research suggests that such assessments do not necessarily have significant effects (though they might promote gradual organizational change). At the same time, stakeholder engagement or empowerment requirements differ among countries, and transparency can nearly always be improved. In one study, “mitigation measures seemed to be generally assumed effective” rather than being actually evaluated and monitored.Footnote 165 An analysis of EIAs for road projects in Malaysia observed that conflicts of interest may be involved since “most EIAs are funded by the project proponent, the consultancy firm may hesitate to conduct a stringent EIA if it believes this will result in it being blacklisted in future by other project proponents”. At the same time, there are asymmetrical resources and access to scientific studies and expertise between project proponents and opponents.Footnote 166
Second, and relevant to a new materialist perspective, EIAs and similar analyses “assess a narrow spatial and temporal scale” of local impacts upon environments or societies (for instance, employment options or the location of monasteries or counted trees), more than widespread climate, cultural, or social integrations.Footnote 167 But by portraying particular elements as inter-connected and capable of some mitigation “if…”, the EIA instead represents a template-derived document that is shaped by and relies upon its contingency to the planned material “road” to displace responsibilities.Footnote 168 Drafts are then adjusted and reinterpreted in government, financial, and consultants’ offices so that “impacts” – from resettlements to toxins to climate change – are translated into “known” investment “risks”,Footnote 169 maximizing the likelihood of securing necessary approvals and investor interest in the “deal”.Footnote 170 In Ulrich Beck's terms, “[d]ealing with these consequences of modern productive and destructive forces in the normal terms of risk is a false but nevertheless very effective way of legitimizing them”,Footnote 171 but this is not necessarily accidental.Footnote 172 In this process, international law norms are sometimes referenced within EIAs – not to offer accountability, but to list relevant treaties or reflect familiar terminology in the domestic legislation and guidelines underpinning such “assessments”.Footnote 173 Overall, despite – but also because of – the interconnections between transport infrastructure and surrounding and distant environments, infrastructure projects are most closely linked with international environmental and human rights law via risk or impact assessment or management frameworks.
B. Consent and Intersecting but Patterned Effects
We disagreed [with the land loss] because we would get this [compensation] only one time in our life, whereas the farm will provide for us forever … The farms are the rice pot of our family. We can send our children to school because of this farm. Footnote 174
Another way the BRI and the Asian Highway manages interconnections between international law and roads’ materiality and surroundings is via documented requirements to engage with “stakeholders” or “project affected communities”. The meaning of “Free and Prior Informed Consent” is contested,Footnote 175 while effective consultations with everyone affected, including Indigenous communities, are not always implementedFootnote 176 and intersect with other social, land, and environmental issues. For example, the development of a stretch of the Asian Highway in Myanmar was delayed after media attention highlighted local opposition directed mainly toward the use of a particular quarry without adequate consultation, which involved shots being fired upon protestors.Footnote 177 The ADB paused its funding, leaving the road “a treacherous stretch of mud, broken bitumen and pools of water, bringing traffic to a slow crawl”. Further investigations found that the quarry had not fully met environmental requirements, and alternative sources had to be found. A journalist concluded that, in future, “the government might view financing certain projects through loans from institutions such as the World Bank and ADB as simply not worth the effort”.Footnote 178
Genuine and representative consultation and consent processes require the protection of other human rights, such as economic rights or those regarding non-discrimination and freedom of speech and association.Footnote 179 Attention toward infrastructure requires attentiveness to its spatial connections to land, which encompasses relationships with animals, plants, and peoples living with and affected by lands. These effects are mutually dynamic, but the materiality of infrastructure in particular corridors of land and the location of materials, like quarries and labour, also presents what could be considered “patterned”, persistent impacts alongside broader, climate-wide effects. The construction of roads in rural Myanmar may offer greater access to centralized services, including health and education, but also increase the influence or occupation by hostile groups and provide routes for drug and sex trafficking or even armies, affecting minority groups or women disproportionately.Footnote 180 Further, investments in physical transportation infrastructure may come at the opportunity cost of developing schools or hospitals; for example, construction job opportunities will, in many societies, be taken up mostly by men, and the operational stage may have further and different gendered and community impacts.Footnote 181
Roads whose entanglements raise environmental or human rights “risks” may be less likely to promptly secure or fulfil approval requirements or economic or financial value calculations, which are the first hurdle for developers. In such situations, the infrastructure that is not built or not yet material, like the ADB-funded stretch of the Asian Highway in Myanmar, is also arguably entangled with daily transportation effects on communities and their environments (for instance, traffic and emissions).Footnote 182 Interviewees in one study in India “stressed that their ‘right to paved roads’ should be recognized like [the] government's acknowledgement of their right to water and sanitation”, and the authors observed how “politicians draw immense mileage and legitimacy from inaugurating and being associated with the completion of ‘new’ highways in India”Footnote 183 and elsewhere.
To summarize, roads traverse and uproot environments, generate communities, and physically provide access to courts, hospitals, schools, and goods and services that underpin cultures, livelihoods, and life itself (or not). They, and these intersections, further interact with and generate international law treaties and investment protections, as well as other international law standards and guidelines, especially risk-based approaches toward human rights and environmental management. This risk/mitigants/impact assessment approach proposes uncertainty (risks stem from interrelated factors), but there is potential for remediation or insurance, which is important to encourage investment. In that way, the apparently objective analysis relies on, and even promotes, contingency.Footnote 184 This paves the way for guidelines and risk frameworks, or detailed private contracts, to apply in place of international law because of the complexity and the long-term, technical and inter-related nature of infrastructure projects, which arguably “attracts” a more flexible regulatory approach.
The piecemeal and guideline-driven nature of international law's relationship to roads, both imagined and built, and their intersections with society and the environment affect some groups more than others, persistently – as roads themselves provide support for the “sequencing” and “patterns” of global commodification via logistical networks.Footnote 185 This suggests that it is not sufficient to design infrastructure that is “sustainable” or even undergoes environmental or “human rights” assessments that, in practice, identify risks and mitigants. Identifying these connections is a start, but interconnections are more than a matter for contingency planning. Instead (as explored in the next two sections), rather than predominantly connecting with the law that facilitates investment to amplify power in networks, roadways might be co-developed in dialogue with the full diversity of human and non-human experiences they entangle.
IV. Hierarchies: Are Non-Roads Funding Gaps?
Driving the truck-free expressway from Yangon North toward Nay Pyi Taw and Mandalay beyond [in 2019] is remarkably quiet. Apparently, it's because, partly to avoid damaging the ‘new’ expressway not built for them, trucks are instead required to hurtle through villages on the legacy ‘old highway’, risking the lives of children playing in the roadside villages but allowing for tolls to be paid under legacy build-operate-transfer [a form of PPP] contracts, which make it less bankable for international investors. Footnote 186
A conception of all as interconnected and dynamic does not neatly explain why roadways attract international law investor protections, but environmental/social issues attract template risk assessments; that is, how patterns form in the entanglements that new materialism sees. This section considers road hierarchies. While data is difficult to confirm, the China Development Bank, the China Exim Bank, the AIIB, and the ADB have offered multi-billion loans to countries to finance BRI projectsFootnote 187 and Asian Highway routes.Footnote 188 Indeed, green or brownfield infrastructure projects always involve significant investment, often via loans. Therefore, one way to understand roadways is via their entanglement with complex webs of loans and donor relationships. Some have argued that funding gives the BRI, and via the BRI, China, geopolitical influence through intersecting financing structures and the international and transnational law that supports them, which are said to generate a “debt trap” for borrowers.Footnote 189 Others suggest that much smaller states still display significant agency in BRI negotiations, including via diversification of funding sources.Footnote 190 These issues intersect with shifting legal, material, and contextual forces.Footnote 191
Globally, the significant expense of mega-infrastructure is said to lead to a funding “gap”Footnote 192 alongside other “gaps” such as a need for technical expertise.Footnote 193 Funding “gaps” apparently lead to, or must be resolved to fill “gaps” in the material connections of road networks or, at least, gaps in the ideal “seamless” vision of integrated infrastructure. In Section I, I suggested that new materialism might view apparent material “gaps” among networks as inevitable aspects of entanglement. This section focuses on the issue of apparent funding gaps. The account of a “funding gap that must be filled” (by private investors) leaves out the factors driving that “gap”. For example, fiscal barriers may be driven by sovereign risk ratings associated with colonial legacies, past financial crises, low-tax bases, natural disasters, armed conflicts, declining development aid, corruption, or neglect.
To attract private financing, projects need to be both economically and financially viable (or “bankable”). Foreign debt and equity investors may hesitate to invest in some developing or Global South countries unless internal rates of return (and hence the cost of capital) are very high. PPPs generally leave the government with many risks while offering foreign lenders (for instance) the opportunity to lend as part of a syndicate to a consortium that includes well-known construction and operation firms with good sustainability “credentials”, ideally alongside multi-lateral banks with stringent lending conditions. This is often more attractive than directly financing a government (or military) project.
In that context, project level documentation draws upon the material features of the roadway and the law applying to “its” location. Yet, it is also driven by the features of the “deal”, including “what the market requires” to make that deal work, which often involves some standardization.Footnote 194 This explains why the numerous international PPP and infrastructure guidelines can be understood as instruments of “rhetorical persuasion”,Footnote 195 offered as over-arching possibilities, differentiated and separated from more localized regulation of infrastructure developments.
Since projects intersect with diverse assemblages of societies and environments, the complexity of mega-infrastructures encourages the reproduction of familiar project structures, template/precedent designs and contracts, and the ticking of pre-feasibility or impact assessment boxes – translating interconnections into identified investment “risks”. With their impossible-to-anticipate contingencies and widespread, changing long-term effects, the material scale, persistence, and complexity of projects reproduce documentation and structures that maximize familiarity. Meanwhile, standardized but adaptable international guidelines offer comfort that localized risks are mitigated, at least contingently.Footnote 196
Nevertheless, because the guidelines and handbooks are intended to be adapted for local conditions, they are not accompanied by multilateral independent regulatory institutions to enforce them.Footnote 197 Indeed, Donaldson and Kingsbury argue that some
of those involved in the drafting of [some of the] instruments undoubtedly intend that infrastructure regulation escape from some existing public law controls and from what they regard as the excessive and costly reach of public lawyers and legal institutions. Others may simply be specialists in the technical elements of infrastructure and its economics …
and are, therefore, less familiar with the legal issues.Footnote 198 For all the attempts at developing the new business and human rights treaty,Footnote 199 infrastructure reveals how international law depicts non-investor peoples and environments as “either an opportunity to exploit or a problem to be solved”.Footnote 200
Certainly, there are helpful preliminary checklists,Footnote 201 detailed and consultation-driven reports, and disaggregated contextual analyses, including socio-economic assessments that begin to explain interconnections.Footnote 202 Some investors attempt to incorporate accessibility, affordability, non-discriminatory, First Nations-led and gender-sensitive consultative and adverse impact responses at the micro, meso, and macro levels – integrated with examinations of the existing situation and the project's real needs. Yet, to centre the “tangled web” of an infrastructure projectFootnote 203 and its non-investor and networked impacts as the starting point, rather than viewing these as issues to be mitigated (or as part of a “value for money” calculation), might generate different international law. So far, however, the roads suggest that the role of international law is limited to offering language to translate contingency into mitigants that support power-laden impactful networks.
V. Directions
Mega-transportation infrastructures can be viewed as entangled with laws, peoples, and environments, but these contingencies underpin patterned protections. This has a number of implications. First, as the previous section discussed, the physical absence or disrepair of roads alongside the reality of their (sometimes interrupted) network connections support a narrative of demand for connective infrastructure that might promote, inter alia, trade and the fulfilment of human rights. In turn, roads and their proponents promote certain kinds of international law, such as investor protections and guidance to reduce the “risks” of environmental or social impacts and secure investment. These reflect and deploy narrower visions of interconnected, contingent infrastructure, within which projects appear to act “upon” their surroundings rather than being entangled in patterned, power-infused ways.
Second, foregrounding roads suggests that “the domain of international law might seem to be shrinking in some areas”Footnote 204 or is at least diminished amid each contracted infrastructure “deal”.Footnote 205 Section IIA showed how roads (or other infrastructure) with impacts that visibly, materially, cross borders might be the subject of an international treaty, but the BRI's more “flexible” and “soft law” approach employs “primary agreements” instead of, for example, more formal international law treaties.Footnote 206 Commencing with the entangled materiality of roads suggests that international lawyers should see transport infrastructure as not just scaffolding development, or as a problem to be solved, but as representing assemblages of forces. These include political and geopolitical rivalries that, in turn, intersect with international law. Countries are investing billions, even trillions of US dollars, and aim to exert great influence via infrastructure plans. At the same time, the role of international law seems limited to offering options for investor risk management and dispute settlement. Even there, scholars identify a shift toward “power-based” diplomatic investor protections.Footnote 207
In that sense, roads, at least, suggest that international law's impacts are both patterned and porous or weak. This raises questions about the role of infrastructure in shaping international law at, for example, the (literal) intersection of China-US or EU/US-Russian geopolitical rivalries along roadways and pipelines. These tensions are represented, in part, via infrastructure networks and their resultant structures, disruptions (“gaps” in the Asian Highway, for instance), and regulation. When foregrounded, roads engage most directly with domestic and investment laws and international diplomacy through partnerships and funding. By contrast, international law represents a mere background, indirectly scaffolding the road's contextual entanglements.
Third, practitioners know that environmental or social risk assessments just identify risks that are then allocated mitigants. Beginning with infrastructure – as in Section IIB – shows how international law and soft law principles addressing SDG indicators, the environment, or human rights are applied as (often separate) frameworks for managing risks to project viability, timelines, and returns. If environmental or social impacts (in Section IIB(1)) are interpreted as unpredictable but mitigatable if so-and-so is done, to be “assessed” so that contingencies can be identified, this understates and deploys a sense of contingency.Footnote 208 It suggests that the project causes impacts, but humans can take actions to prevent or reduce the damage of those impacts (using international law as a guide).
As Melinda Benson puts it (in the context of managing New Mexico's forest systems), by focusing on the problem of how to manage a State's peaceful relationships, international law offers “a fragmented approach that tends to focus on one aspect of the system at a time”Footnote 209 rather than acknowledging entanglements. This reflects what activists, geographers, and anthropologists have long argued: project environmental impacts cannot be separated from wider structures of dispossession and colonialism, especially of Indigenous communities,Footnote 210 in which international law has played a central role.Footnote 211 This cautions against suggesting that infrastructure projects’ limited direct use of international human rights or environmental law requires stronger, more authoritative forms of international governance, including stronger international law institutions, which might further standardize or obscure these complex effects.Footnote 212 Instead, feminist, TWAIL, and critiques of neoliberalism all offer intersecting explanations for the patterned relationships between international law and physical infrastructure, which roads, in their materiality, shape.Footnote 213
Fourth, foregrounding infrastructure helps illuminate how materiality is important for the law. Roads exist and change over long distances for a long time and are managed under long-term contracts (that must manage unknowable contingencies) throughout geopolitical cycles. We cannot combat climate change or promote human rights without transportation infrastructure; it is so integral to global life. As described in Section IIB regarding the quarry in Myanmar or driving from Yangon to Nay Pyi Taw, the physical persistence of a roadway and its constituent materials, even in disrepair, makes it something that international law must grapple with rather than only direct or govern. On the other hand, the tendency of governments and investors to stress a project's or network's benefits and risks indicates how appreciating the trajectories or even agency of objects and their assemblages of investors and contracts can distance and diffuse particular humans from accountability. In this way, roads – as material components of connectivity-focused logistical highway networks (for instance) – promote an understanding that diminishes possibilities for alternative assemblages of matter (railways or canals) or as part of maintainable, collaborative, constructed “road” materials.
However, Section II displayed several limitations of this new materialist perspective for addressing these issues. Regarding implementation challenges, it still considered “roads” and their relationship to “law” and found patterned effects that relate to how such categories are understood and delineated – for instance, my understanding of international law as it relates to treaties and international guidelines. I could not escape the infiltration of “an overlay of preconceptions built up through received categories from … Western thought and the disciplines”Footnote 214 or subject/object/human/non-human binaries. My new materialist-inspired approach could not explain how particular understandings of roads (such as the specific grouping of the BRI) could be understood as fully entangled with international law or why these categories constitute particular social relations.
Fifth, as evident in the discussion concerning the ADB stretch of highway in Myanmar in Section IIB(2), an emphasis upon materiality must still grapple with the “lack of” and failure to maintain infrastructure. Transport infrastructure can be planned or hoped for but not yet funded or operational. A road cannot facilitate access to human rights, reduce emissions by shortening travel times, or provide an alternative route less damaging to an ecosystem if it is not built or falls into disrepair. As developed in Section III, if there are no allocated funds to build or maintain or governments (and development agencies) have different priorities, private financing is offered as an alternative to fill funding “gaps” and, thereby, roadway “gaps”. This might work for “bankable” projects in jurisdictions with good governance. By contrast, multi-lateral banks or overseas development funding assists where risks appear higher – supported, in turn, by international institutions and development and investment frameworks. The non-construction and non-maintenance of infrastructure attract different financial structures, but the same dynamics of attracting investment (or not) remain.
This presents a challenge for new materialism, which tends to focus on what “is” rather than the non-material what-could-be. Instead, Section III suggested that structures that contribute to so-called funding “gaps” in meeting “demand”, including taxation, the effects of conflict or natural disasters, legacy sovereign risk ratings, global logistical systems, and so on (often associated with occupation and colonialism), should be the target of attention, rather than reforms aimed toward attracting expensive private funds that entrench the need for them.
Finally, a “flat morphology neglecting social hierarchies” lies in tension with “the morphology of the sociocultural entities around a road [that] is evidently hierarchical and unequal”.Footnote 215 Indeed, interconnections and contingency present the “project” as holding symmetrical impacts alongside their human, government, and corporate proponents, whereas the dynamic intersecting matter and flows associated with road networks involve entangled but also patterned effects. If particular transportation networks are developed via treaties and some not, if particular investors prepare human rights or environmental impact or risk assessments (that manage contingencies) and some do not, if particular projects do (via their planners, financiers and constructors) destroy and harm and some do not … simply revealing these types of interrelationships is unlikely to stimulate emancipatory change.
VI. Conclusion
This article does not intend to promote the existing lack of international law restraints upon the infrastructure sector or invite formal responses toward this indeterminacy that will cause their own harm.Footnote 216 Instead, given the trend toward “infrastructure diplomacy”,Footnote 217 it suggests that road “networks” contingent promises (of economic growth, development, or access to human rights)Footnote 218 and patterned protections (harms, non-construction, and disrepair) reveal loose and even sometimes harmful entanglements with international law. Instead, we might consider alternatives to regulating roads as global supply networks, such as beginning with “a commitment to care”Footnote 219 or open-minded forms of cooperation.
If roadways are recognized as producing the connectivity that underpins international relations, which many states seem to believe and fund, a reformist or revolutionary approach toward international law must reckon with those roads and the historic paths they follow or “slice” through.Footnote 220 These issues are relevant for other forms of infrastructure that interact to shape and be constituted by international law.Footnote 221 International law decentres and separates some humans and environments more than others, deploying a sense of contingency to justify wide-ranging general, fragmented risk frameworks while actually centring investor demands.Footnote 222 Among the complexity and long-term entanglements of an infrastructure project, it is not surprising that international law, embedded as it is with these and older colonial dynamics, struggles to “safeguard those human beings and communities, animals, and other living ‘critters’ positioned as predictable outsiders”.Footnote 223
Therefore, this article is tentative about the potential of an infrastructural turn. Focusing on roads has suggested that infrastructure promotes particular assemblages and international law frameworks. Roads, via their interactions, kill and create. Perhaps most helpful is that, by identifying the power-laden “trouble” roads present,Footnote 224 including for international law, noticing patterned effects also invites the possibility of alternative patterns. When situations are interdependent but not randomly so, and if power can come from multiple sources but travels by a road network, if we listen closely enough to “roads”, we might better understand international law's current and future paths.
Acknowledgements
The author thanks Fleur JOHNS and the anonymous reviewers for their constructive engagement and comments on drafts of this article. She acknowledges the Arakwal people of the Bundjalung nation, upon whose lands this work was predominantly researched and written, and pays her respect to Elders past and present. She is grateful for the time of all those who informed this work and for Joshua SAUNDER'S research assistance.
Funding statement
Supported by a Griffith University AEL Group Research Grant.
Competing interests
The author declares none.
Dr Emma PALMER is a Senior Lecturer at Griffith Law School, Griffith University, in Queensland, Australia.
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