Imperial power and legal argument

Hello, it’s all quiet on my end at the moment, as I seem to have run out (for the moment) of ‘projects’. Hopefully there will be some new ones on the horizon soon (as opposed to editing and revising old ones, which is not always the most exciting thing to do). Anyway, as I said I was at a workshop last week on Pashukanis and International Law that was very good and very productive. I gave a little ‘position paper’ at the beginning that I’ve reproduced below, people who were there may not recognise it – this is largely because on the day I had a horrible hangover and hadn’t really had much time to practice, in any case – enjoy!:

Imperial Power and Legal Argument
What I want to do is examine our legal conjuncture by examining how legal argument has been shaped by configurations of imperial power.

So the start of our story is the first Iraq War. It’s important to start here as , typically, this is presented as the beginning of a New World Order, in which international law was to be effective but also ‘apolitical’, in the sense that it was no longer the plaything of two Great Powers. The legal claim that the US mounted were couched in traditional, formalistic terms – collective self-defence and a Security Council Resolution.

In line with this there was very little opposition to the war from legal commentators. Of course Iraq mounted its own legal arguments but these were not taken seriously.

Immediately one must look to the international context of these events however, the most important point to note here is that the Soviet Union was – at the time of the first Iraq war – undergoing a trauma from which it would never recover. In other words, international law’s rebirth coincided with the ‘unipolar moment’.

Thus, rather than see the relative uncontroversiality of the Iraq war as a function of legal consensus, it ought to be seen as an effect of the United States achieving a hegemonic position in the international order. As such the United States could deploy relatively uncontroversial legal argument in its favour.

So let’s take a big skip forward to Kosovo. Kosovo is important insofar as I think it ris continuous and discontinuous with this expression of US imperial power. Kosovo is problematic because Russia had started to regain some of its international power. Russia made this power felt through its use of ‘traditional’ legal argument. Hence, it became impossible for the US to use its earlier, uncontroversial legal rationales for war.

In response to this a new legal strategy had to be created – humanitarian intervention. Humanitarian intervention responded to the new contestability of legal argument in two ways. Firstly, the law of humanitarian intervention was positioned as protecting the international system as such. Thus, although it might not quite yet a norm, it nonetheless protected important legal entitlements – human rights. Secondly, such a right was necessarily exclusionary. This led to the formulation that it was ‘unlawful but legitimate’. Moreover, although it wasn’t specifically elaborated as such, humanitarian intervention could only accrue to certain ‘good’ states and could only be used against certain bad states. The central point here is that the US argued that it and its allies were the special guardians of the interests of the world system as a whole, as such, they might violate individual norms but uphold the system itself, or better yet (and I think these points run together in the argument) by virtue of their special position they may commit acts that might normally be unlawful but is rendered lawful.

The particular characteristics of this argument has been exacerbated as the US’ status as an imperial power has come under threat. Thus, the defining features of the Kosovo legal argument have been massively accelerated by the War on Terror. In the War on Terror the United States has presented its own imperial interests as interests central to the preservation of the world order. Concomitantly with this it crafted rights to intervene against terrorists and rogue states which only it or its allies could use. In the face of its declining factual power the US attempted to legally guarantee itself a role in the international order.

The tensions in legal argument finally reached breaking point in the second Iraq war. Here, again, the particular character of legal argument was generated by the particular international conjuncture.

It was obvious that the US’ imperial power was not doing well at this point. Russia and China and even Europe were asserting themselves. These rivals were not just making themselves felt factually, they were also engaging in legal argument. Thus, much of Europe as well as a massive anti-war movement were using ‘traditional’ international law to contest US imperial strategy. That trend which had begun in Kosovo had gained momentum.

This increasing contestability brought with it different legal strategies. One argument was to increase the War on Terror argument. Thus, elaborate legal justifications were adduced on a whole range of issues to show that the US had a special capacity to act. Another argument was to simply valorise the breaking of international law as a ‘good’ thing, as they were protecting the interests of the world system as a whole. Thus, those tendencies evident in Kosovo were being increasingly pushed. The problem was however, that these arguments were largely rejected, and their rejection triggered a sea-change in international legal argument.

This brings us nicely onto Georgia. What is very interesting about Georgia is the subversion of imperial legal argument. Russia has taken typical claims of imperial law – defence of nationals abroad, democratic intervention and above all humanitarian intervention and has claimed those rights for itself. This is significant. Over the past 20 years international law was deployed as against US action. Here, what was usually relied on was ‘traditional’ international law, which the US tried to defeat with its own special legal prerogatives. However, in Georgia, Russia has used those very same prerogatives as justification for its own expansionist actions.

The responses here have been interesting. The US has returned to traditional international law – territorial integrity etc. Yet at the same time there has been an increased insistence on legalising the hegemony of the US and its allies – witness the calls for a League of Democracies. This, perhaps, more than anything points to the new crisis in international law, and the roots of this crisis in the US’ imperial decline.

Whilst this does show us the malleability of legal argument it also shows us the way in which a crisis in US power has produced more expansive type of legal argument – in which everything seems to be up for grabs. The question is, does this conjuncture open up international law for more progressive challenges?

Some little points to note
One thing that I would have liked to have done more here is trace the character of scholarship back to these modes of legal argument (and imperial configurations). International lawyers, especially the more prominent ones, seem very much to be ‘Western’ and as such it is amazing the degree to which their scholarly output does reflect these things. So it’s definitely true that there was a certain crowing triumphalism following the first Gulf War about the new found effectiveness of international law.

I think the important thing I really wanted to flag up is the degree to which assertions of exclusionary liberal cosmopolitanism (in both their scholarly and practical moments) are actually expressions of weakness rather than strength. Note that in the aftermath of the first Gulf War there was no need to try and carve out a ‘special place’ for certain states in international law – because plain old international law served their interests just fine and dandy. The project of liberal cosmopolitanism only gains real steam with the emergence of new imperial problems.

What’s interesting is that this muscular liberalism had to become ever more muscular in the fact of liberal-legal opposition to American imperial power. It’s quite telling that ‘liberals’ were ready to line up behind the Kosovo intervention – meaning that although an exclusionary liberalism was invoked, it was one that only excluded certain ‘bad’ states. The war on terror meant that this project had to start differentiating between muscular liberals and (for want of a better term) collaborationists (old Europe etc.).

Whilst it’s true that sometimes this resulted in the abandonment of international law arguments tout court (although this is another point that needs to be flagged up – typically here it was argued that international law threatened the international system and so had to be broken in a given instance – by a power authorised to police the interests of the system – was this really so different from the ‘unlawful but legitimate’ justification for Kosovo) there have been a good number of neo-cons using considered legal argument to justify the War on Terror.

Actually, the paradigm of unlawful but legitimate as a strategy of entrenching weakened imperial power is one that I think might be quite productive. I think it links quite usefully with a lot of stuff Gerry Simpson says in Great Powers and Outlaw States and does help to explain quite a few recent things. In fact, Nathaniel Berman has a rather nice formulation, which incidentally I think can be usefully tied in to my last post:

The analysis of transgressive sacrality, however, suggests that it may well be the overt violator of fundamental norms who has the most at stake in maintaining those norms. Even if we try to maintain as realist a stance as possible, we may find that the U.S. can only keep proving to the world its status as the “sole super-power” if it is continually able to assert its prerogative to violation international rules. Once those rules no longer exist, it will have nothing to violate and no way to prove its transcendence of that system.
(p.121)

In fact, in general I think there is something very interesting about Iraq/the War on Terror more generally in this vein. Earlier I quoted Rasulov to the effect that post-structuralists might represent a kind of intellectual anarcho-terrorist. The interesting thing is that – to some degree – this position gets reversed. It is Empire that is arguing that international law is infinitely malleable (although not that Empire is deploying its own kind of practical antinomianism) with ‘progressives’ arguing it is a violation of international law – very topsy turvy. This also tells us that arguments for the indeterminacy of law seem to have no inherent political content – indeed the US fulfils the role of Batman, as the usual breaker of law’s but the preserver of systems (which as per the last post gives us some questions to ask about the relationship between the intellectual anarcho-terrorist and the above-the-law strongman).

Thinking about it some more, tying in Kosovo and the War on Terror to the same moment seems very, very important. The reason this is so is that – latterly (and Scott Newton was very perceptive on this – the critical crowd has become overly focused on Bush’s particular imperial drive as somehow very special. But if there is a high degree of material continuity between these strategies this tells us something about the last Democratic administration and probably – to be frank – the soon to be Democratic administration. Whilst the particular tactics may be different it strikes me that the strategy of unlawful but legitimate may be one that a declining Empire is forced to adopt (indeed there is a sense in which Obama is an embodiment of American exceptionalism – remember kids, imperialism in international law has often been 'liberal').

I mean it’s questionable how much this strategy is going to work – given that other states seem to be usurping these prerogatives, especially given the recent financial situation and the attendant sapping of power. That being said there are a number of hotspots in which I think the Obama administration will deepen the particular rhetoric of the War on Terror.