Introduction

Rumours of the death of socialism have been accompanied, oddly enough, by rumours of the disappearance of the United States. Post-structuralists tell us that we are all victims now but that, somehow, the multitude will arise against ‘the powers’. Power enslaves us all in its impersonality, but resistance is everywhere. A primary focus of this study is Michael Hardt and Antonio Negri's Empire, a post-structuralist and, at the same time, post-Marxist critique of globalisation. This paper will argue, against the book, that an updated theory of capitalist imperialism convincingly captures the contemporary international scene. The brutal power of the United States is everywhere. It is infinitely destructive of international law. Postmodernism is the exhausted moral spirit of the old Europeans, and the ghosts of Marxist interpretations of imperialism offer us the most convincing explanations as to why the violence of the United States increases by the year.

In this view, Marxism does not offer a theory of international law as such, but merely a contemporary, up-to-date explanation as to why it is being systematically, or structurally, violated. Marxism is presented as a vision, an analysis of a condition, essentially pessimistic in its tracing of an increasing intensification of exploitation on a global scale, violently promoted and protected by the United States and its allies, the so-called ‘coalition’. So the contradictions of capitalism are reflected in the contradictions of international law.

However, law as such is not merely an ideological legitimisation of capitalism.

There is no consensus among International lawyers on a workable or operable concept of general customary law, supposed to be the fundamental source of an international law binding upon states. It is thought to represent an analytical framework within which one can assess whether states recognize a rule, principle, or practice as binding upon them as law. Jurists are to examine the same ‘raw material’ of international relations as diplomats, statesmen, historians, and political scientists. Yet according to the most orthodox view, expressed in the jurisprudence of the ICJ the jurists are to find that states have, in some sense, a legal conscience or sense of conviction. In the North Sea Continental Shelf cases the ICJ said that the ‘practice of states’ relevant to the assertion that a rule of customary international law exists must:

The basic problems with this formulation have been put squarely by Sorensen and D'Amato. Sorensen points out how the very nature of relations among states makes ascertainment of an evolving customary law virtually impossible. Diplomatic negotiations remain so closed and secret that not even the representatives of one state will know what are the underlying motives of their opposite numbers. Yet such motivation is essential to the psychological element of custom.

Normally a preface will give a list of the names of friends who have taken the trouble to read drafts of the manuscript, but I have found myself spontaneously adopting a slightly different and, I believe, more rigorous course. In the final stages of writing, over the last two years or so, I have accepted offers to participate in workshops where I could attempt a dry run of my ideas. As a consequence the work has had considerable feedback, but a price of participation is that versions of parts of the work have been published or are being published.

This book is in a remote sense a sequel to The Decay of International Law published by Manchester University Press in 1986. It takes up some of the themes of the first book: the contested role of legal doctrine, the problematic character of custom as a source of law, and the relationship of the state to the nation in the theory of international legal personality. However, on this occasion attention is devoted less to a critique of international lawyers and more to a rethinking of the tasks an international lawyer might undertake. There is here a real effort to break free of what I regard as irrelevant categories of thinking, although this always carries with it the risk that the discipline no longer recognizes what one is doing and reacts rather forcefully – this is what I mean by feedback.

For instance, I presented the first fifteen pages of Chapter 1 of the present book at a conference of French and Spanish international lawyers at Palma, Majorca, in May 2005.

A Definition of Doctrine and its Present Problematic in Public International Law

I intend to begin simply by referring to two recent French works, the Dictionnaire encyclopédique de théorie et de sociologie du droit and a colloquium organized by the legal history department of the University of Picardie (Amiens), La Doctrine juridique. The first provides us with an authoritative and vital distinction between legal doctrine and legal dogmatics, while the second explains the problematic of keeping the former alive.

The French dictionary distinguishes doctrine from ‘dogmatique juridique’ (legal dogmatics). The former is defined as ‘opinion, theory or thesis,’ while the latter means the domain of the science of law concerned with the interpretation and systematization of juridical norms. An essential element of doctrine is that it is supposed to have authority. The theory, opinion, etc. must be capable of exercising influence. Coming from the tradition of Roman law and canon law, particularly in French and German legal communities, doctrine has authority not as a source of law as such, but as freely and spontaneously held opinion, which is likely to become accepted. Since the seventeenth century the nature of this authority has become contested. It is seen as rooted in theories of natural right which were increasingly regarded as the ideological apparatus of a dominant bourgeois class.

Legal dogmatics works within the assumptions of legal positivism, particularly with respect to the sources of law. It is concerned with the interpretation of statutes and jurisprudence.

Diagnosis of the Relationship of Hegemonic Capitalism to Democracy, the Rule of Law and Human Rights

Coercive international order, cosmopolitan values, and economic interest

Given a picture of contemporary international society, which is dominated by the US, whose central significance for a philosophy of international law has been presented in the last two chapters, the question arises how to understand the same subject as it is presented by contemporary American scholars, both lawyers and political philosophers. Such authors as Allen Buchanan and David Golove, Fernando Teson, and, of course, John Rawls himself, present a closely reasoned agenda for what they call the democratization of international society, setting out conditions for the legitimacy of states, which are marked by human rights standards that can themselves trigger grounds for forceful intervention by other states. The central point of these reflections on the need for a morality of international law is that a critical reflection is made of the state's claim to legitimacy in international law by virtue of the mere fact of control. As Buchanan and Golove put it, ‘according to some normative views, including Rawls's in the Law of Peoples, only those states that meet the requirements of transnational justice, understood as respect for individual rights, are entitled to enjoy the rights and privileges of members of good standing of the international community.’ There are nuances in these debate as to whether so-called illiberal regimes should be tolerated, or whether pragmatic considerations should weigh against democratic regimes declaring war on authoritarian regimes. There is no doubt that this school of thinking is very pertinent and stimulating for international law.

The Classical International Law Tradition

In his magisterial introduction to international law, The Law of Nations, James L. Brierly quotes at length the French international lawyer Albert De Lapradelle on the significance of Vattel, whose text Le Droit des gens, published in 1758, is usually regarded as the standard founding statement of modern international law. The Frenchman praises Vattel for having written in advance of the events which the book represents, the principles of 1776 and 1789, of the American and French Revolutions. Vattel is credited with projecting onto the plane of the law of nations the principles of legal individualism. Vattel has written the international law of political liberty.

Brierly comments astutely that the survival of the ‘principles of legal individualism’ has been a disaster for international law. The so-called natural independence of states cannot explain or justify their subjection to law and does not admit of a social bond between nations. Vattel has cut international law from any sound principle of obligation, damage which has never been repaired.

It could be said that there is nothing in the critical legal studies movement about the law relating to the use of force that has not already been said clearly by Brierly in relation to Vattel. Brierly's views are worth repeating precisely because contemporary statements about Anglo-American unilateralism, above all in the context of Afghanistan and Iraq, however worthy and true, are statements of the obvious which do little to advance understanding.

In the Case Concerning a Frontier Dispute (Burkina Faso and the Republic of Mali) the International Court of Justice noted that, given the acceptance of the principle of uti possidetis juris (reliance upon former colonial administrative boundaries) in the case by both parties it was not necessary to show that the principle was firmly established in international law where decolonization was involved. Nevertheless, the Court insisted that uti possidetis juris is a general principle of international law which exists to prevent the stability of new states being endangered by fratricidal struggles, themselves provoked by the challenging of frontiers following the withdrawal of the administering, colonial power. This is not just an administrative procedure in Africa but a rule of general scope. One might note the oblique way the issue of self-determination of peoples is side-stepped by such turns of phrases as that African states have been induced ‘judiciously to consent to the respecting of colonial frontiers and to take account of it in the interpretation of the principle of self-determination of peoples …’ This is a euphemism for the suppression of secessionist movements in African states.

This African decision has been applied by Europe's international lawyers in the context of the break-up of Yugoslavia. The Conference on Yugoslavia's Arbitration Commission, in its Opinion No. 3 (January 11, 1992), had to answer the question whether the internal boundaries between Croatia and Serbia and between Bosnia-Herzegovina and Serbia should be regarded as frontiers in terms of public international law – a question put by the Republic of Serbia.

Introduction

I wish to present a perspective from American culture and history, which may help to explain dominant American tendencies to resort to the unilateral use of force to resolve what Americans take to be demands of their national security. This is very far from wishing to deny the importance of international law, either as an intellectual construct or as an ideological weapon. Indeed, the wider cultural, historical analysis is intended to demonstrate the contrary. International law language is the final battleground in the struggle for legitimacy, which always accompanies the use of force. Nonetheless, international law is plagued by the problem of auto-determination of its normative system, by the absence of a framework of compulsory adjudication of disputes. This fact ought to lead international law theorists to attach exemplary importance to the character of international legal personality. If, indeed, it is a feature of the legal personality of states that they have sovereignty, why is it that international lawyers treat this fact as purely formal? Does state independence from authoritative external criticism not have itself a substantive aspect, a cultural, symbolic dimension that the history of the discipline can more fully elucidate?

As has been seen, modern international law theory does not directly broach the issue of international legal personality, except formally to delimit their legal powers through an international legal order. This is surprising because it is obvious that where the interpretation of norms depends entirely upon the independent exercise of judgment by the subjects of a legal order, attention should be paid to the character of these subjects.

Introduction

Rumors of the death of socialism have been, oddly enough, accompanied by rumors of the disappearance of the United States. Poststructuralists tell us that we are all victims now but that, somehow, the multitude will arise against ‘the Powers.’ Power enslaves us all in its impersonality, but resistance is everywhere. A primary focus of this study is Michael Hardt and Antonio Negri's Empire, a poststructuralist and, at the same time, postmarxist critique of globalization. This chapter will argue against those authors that an updated theory of capitalist imperialism convincingly captures the contemporary international scene. The brutal power of the United States is everywhere. It is infinitely destructive of international law. Postmodernism is the exhausted moral spirit of the old Europeans and the ghosts of Marxist interpretations of imperialism offer us the most convincing explanations as to why the violence of the United States increases by the year.

In this view Marxism does not offer a theory of international law as such but merely a contemporary, up-to-date explanation of why it is being systematically, or structurally, violated. Marxism is presented as a vision, an analysis of a condition, essentially pessimistic in its tracing of an increasing intensification of exploitation on a global scale, violently promoted and protected by the United States and its allies, the so-called ‘coalition.’ So, the contradictions of capitalism are reflected in the contradictions of international law.

Fear in the Western Liberal Tradition: Ricoeur's Response to Hobbes and Hegel

The predominant anthropology for the place of law in international relations, whether on the side of state sovereignty or international organization, or constitution, has been a radically subjectivist, individualist one. The state of nature, in which sovereign states still find themselves, is reinforced by predatory doctrines of pre-emption in the area of national security and of relentless expansion in the area of economic activity, itself continuously dominated by security interests. This analysis may not be disputed by legal internationalists or constitutionalists. They continue to set themselves the task of harnessing the beast of the state, Aron's ‘cold monsters,’ into a disciplined framework. There is no reason or wish to obstruct or denigrate these internationalist, constitutionalist efforts. However, their limitations need to be both understood and complemented by a new anthropology of international law. This belief is itself fired by a suspicion that internationalist or constitutionalist endeavors face, ultimately, insuperable obstacles of value incommensurability and power/social fragmentation, but it is hardly necessary to provide final ontological proof of such a suspicion. Both major internationalist projects, the United Nations and the World Trade Organization, are in deep enough crisis, where it is apparent to the mildest observer that egotistical or subjective power considerations dominate the Western treatment of the non-Western world, as they have since the foundation of the rapacious modernity so well described by Tuck.