Wednesday, June 15, 2005

An Apologist's Dilemma?

Is it possible to love customary international law and hate America? Maybe not...

There seem to be two positions taken at the same time by some PIL scholars, summed up in the following handy (non) quotes:

(1) "PIL works. PIL is adhered to generally, and what you class as violations or failures of PIL actually strengthen the customary rule in question when States appeal to it to validate the act in question (it says so at para.186 of the Nicaragua judgment). You can't quantify all the times that PIL is adhered to in practice because it's impossible to measure that kind of stuff"; and

(2) "I really wish that America wouldn't do that. It's frustrating and a bit embarassing when they just do whatever they like. Take Iraq for example. I was so professionally humiliated over that whole thing. Y'know, you work on all these rules and as soon as something important comes along it's like the whole thing just goes out the window."

The best examples of the alleged violator of international law appealing to the rule of international law in response to criticism concern the USA. Take as examples Iraq (self defence) or Guantanamo (humanitarian law/human rights).

So, is the US the secret PIL champion? If the US didn't go on its wee adventures and appeal to PIL in justification for its own overt acts (as opposed to States pointing out each others' violations) , maybe the PIL scholar as described above would have no ammo to back up their 'PIL works' arguments...

4 comments:

Akbar said...

Neil asks:

"So, is the US the secret PIL champion?"

Depends on what you mean by secret, but I can see how you could say that the answer is yes, or at least it's gotta be. Especially if you dig Pashukanis. [Even if you don't, there's plenty of room for the more traditional ideology-critique argument: "law is a form of politics", "power has many faces, including a soft one," "legitimacy is a base of power," "juridification is a characteristic pattern of masking power relations under late-modern capitalism," etc.]

Let's not forget that it's not only the "wretched of the earth" who have a tangible stake in the realisation of the "ideal" of the rule of law. It is also those who get to write it (i.e. the law), or at least have a disproportionate say in its making.

Neil McDonald said...

Interesting points. Who's masking the power relations through juridification? When you refer to those who have a disproportionate say in its making, are you referring to powerful states or to international law scholars? Could be either, or both...

Akbar said...

(1) I'd be inclined to say both, but I wouldn't want this to result in the exclusion from the picture of any other set of actors, whether collective or unitary.

On this latter point:

B.S. Chimni, for instance, regularly makes use of the concept of "transnational capitalist class" (which he borrows from Robinson and Harris) when discussing the logic of global governance in the post-Cold War era. Adopting this perspective, it'd appear that it is the TCC that is most interested in the continuous juridification of the international public realm, since it is its interests that are most directly reflected in, and protected by, the various international legal regimes.

[As an old-fashioned Marxist would say, the power of the law in the age of capitalism lies in the reality with which the "lay masses" perceive its mirages: in the eyes of the "uninitiated" the law is seen as something objective, neutral, and democratically representative; in reality, of course, it is the end result of intense political struggles (which in the capitalist age are always won by the bourgeoisie). So long as everyone continues to believe in this myth of the law's neutrality, the TCC can go on quietly advancing its parochial agenda without meeting half as much resistance as it would were it to try doing the same in an open political forum.]

(2) All politics, international politics especially, is always overdetermined. That is, you cannot explain any concrete political phenomenon (such as, for instance, juridification) in terms of only one group of actors. There will always be several different social groups interested in the advancement/sabotaging/termination of any given trend, etc. Or, as Althusser said, "the lonely hour of the last instance never comes," meaning that the chains of causality in the social field are never as simple and linear as the adepts of vulgar economism suggest [substitute "vulgar economism" with statist theories of international relations and you get the point I'm making in (1)].

Akbar said...

(1) I'd be inclined to say both, but I wouldn't want this to result in the exclusion from the picture of any other set of actors, whether collective or unitary.

On this latter point:

B.S. Chimni, for instance, regularly makes use of the concept of "transnational capitalist class" (which he borrows from Robinson and Harris) when discussing the logic of global governance in the post-Cold War era. Adopting this perspective, it'd appear that it is the TCC that is most interested in the continuous juridification of the international public realm, since it is its interests that are most directly reflected in, and protected by, the various international legal regimes.

[As an old-fashioned Marxist would say, the power of the law in the age of capitalism lies in the reality with which the "lay masses" perceive its mirages: in the eyes of the "uninitiated" the law is seen as something objective, neutral, and democratically representative; in reality, of course, it is the end result of intense political struggles (which in the capitalist age are always won by the bourgeoisie). So long as everyone continues to believe in this myth of the law's neutrality, the TCC can go on quietly advancing its parochial agenda without meeting half as much resistance as it would were it to try doing the same in an open political forum.]

(2) All politics, international politics especially, is always overdetermined. That is, you cannot explain any concrete political phenomenon (such as, for instance, juridification) in terms of only one group of actors. There will always be several different social groups interested in the advancement/sabotaging/termination of any given trend, etc. Or, as Althusser said, "the lonely hour of the last instance never comes," meaning that the chains of causality in the social field are never as simple and linear as the adepts of vulgar economism suggest [substitute "vulgar economism" with statist theories of international relations and you get the point I'm making in (1)].