There's no such thing as a 'natural' disaster

As the Haiti disaster unfolds to ever greater levels of misery, it's worth flagging up a number of brilliant analyses by people on the left. Whilst I'm sure many people have already read these, I think they give us some interesting thinking matter with regards to international law. The two obviously important pieces are those by Greg Palast and Peter Hallward (but also see Lenin, Kasama and K-Punk) The central point of both of their arguments is that there is simply no such thing as a 'natural' disasters. 'Natural' disasters always occur inside of a social context which mediates and determines the effects of such 'natural' disasters. In Haiti's case this is no different, as Hallward notes:

The noble "international community" which is currently scrambling to send its "humanitarian aid" to Haiti is largely responsible for the extent of the suffering it now aims to reduce. Ever since the US invaded and occupied the country in 1915, every serious political attempt to allow Haiti's people to move (in former president Jean-Bertrand Aristide's phrase) "from absolute misery to a dignified poverty" has been violently and deliberately blocked by the US government and some of its allies ...

Haiti is now a country where, according to the best available study, around 75% of the population "lives on less than $2 per day, and 56% – four and a half million people – live on less than $1 per day". Decades of neoliberal "adjustment" and neo-imperial intervention have robbed its government of any significant capacity to invest in its people or to regulate its economy. Punitive international trade and financial arrangements ensure that such destitution and impotence will remain a structural fact of Haitian life for the foreseeable future.

It is this poverty and powerlessness that account for the full scale of the horror in Port-au-Prince today. Since the late 1970s, relentless neoliberal assault on Haiti's agrarian economy has forced tens of thousands of small farmers into overcrowded urban slums. Although there are no reliable statistics, hundreds of thousands of Port-au-Prince residents now live in desperately sub-standard informal housing, often perched precariously on the side of deforested ravines. The selection of the people living in such places and conditions is itself no more "natural" or accidental than the extent of the injuries they have suffered.

This is absolutely vital, and needs to be repeated again and again. However, from our perspective there is something else that has to be foregrounded, all of this takes place within a context structured by international law and international legal organisations. Here, I think it's useful to turn to Susan Marks' excellent piece 'Human Rights and the Bottom Billion' (2009 European Human Rights Law Review, 1: 37-49). What is vital about this piece is the way in which Marks engages with the types of arguments above (particularly with the work of Mike Davis), but also brings them into engagement with international law literature. She argues, that the conditions and relationships that produce these problems (poverty in her case, but the point holds more generally) are themselves deeply involved with international law and international legal institutions.

How is this borne out in the case of Haiti? Here, I think we have to return to China Miéville's brilliant piece on Haiti 'Multilateralism as Terror'. In this piece, Miéville - engaging with Peter Hallward's work on Haiti - shows the way in which the imperialist-backed coup in Haiti and the consequent destructive occupation was deeply complicit with international law and international lawyers. The coup, and the occupation, are phrased in uncontroversial language of UN Security Council Resolutions and are impeccably multilateral affairs. Of course, we absolutely have to go further than this. The IMF loans, and the brutal conditions that impose upon Haiti (with the attendant poverty exacerbating effects) are the creatures of international legal organisations and international legal regimes.

So 'natural' disasters, are obviously not natural. But when we look to the social context in which these disasters occur and are recieved, we must understand that international law - a constitutive force on the world stage - is a vitally important part of this context.

So, of course, the important thing to ask here is 'what is to be done?'. The absence of any widespread acknowledge of international law's role in 'natural' disasters seems to me to be a symptom of the 'anxiety of influence' that Susan Marks describes in her article 'State-Centrism, International Law and the Anxieties of Influence':

Viewed from this angle, the anxiety of influence felt by international lawyers is a not just a fear of irrelevance but a fear of relevance as well – not just a shock at the recognition of politics in law, but a shock at the recognition of law in politics. If this is right, then what is troubling is not only belatedness, but also primordiality, and not only indebtedness, but also responsibility. John Bolton and Richard Perle may like to think – or like us to think – that international law is irrelevant to the US administration, but John Yoo and Jay Bybee know better. But then, their intricately argued ‘torture memos’ only really confirm what historians can tell us anyway: that empire is a legal construct – not only encumbered by international law, but also partly constituted by it.
p.347

Now, in a sense this is entirely right and it is one of my favourite quotes. But perhaps we need to go a little bit further. Rather than talking about an 'anxiety of influence', might we (and I should thank Akbar Rasulov for pointing this out to me) speak of 'false consciousness' in the sense that Lukacs talks about. This is not the false consciousness of the working class that tricks it into not opposing capitalism, but rather the false consciousness of the ruling class, so as Lukacs says in History and Class Consciousness:

But the veil drawn over the nature of bourgeois society is indispensable to the bourgeoisie itself. For the insoluble internal contradictions of the system become revealed with, increasing starkness and so confront its supporters with a choice. Either they must consciously ignore insights which become increasingly urgent or else they must suppress their own moral instincts in order to be able to support with a good conscience an economic system that serves only their own interests.

I think this is important to note, because it points us to the fact that simply 'revealing' this to international lawyers is not enough. Precisely because of what is at stake here - the very ability for the international legal profession to continue to function qua a profession, 'revealing' stuff is not enough. Moreover (and this is perhaps a more important point), we have to consider those structural factors that intellectually those in the legal profession/academy from taking 'responsibility' for this connection. I've said more about this sort of thing elsewhere but my basic idea is that the shape of the legal form itself - an abstract formal relationship that reveals itself through concrete disputes, tends to abstract these things from their material context.

I think the K-Punk stuff linked to above is good here - in a rather oblique way. I think K-Punk is completely correct to summarise the liberal response to 'natural disasters' thusly:

Now is not the time for political discussion, we'll look at the long-term causes later .... But, since Band Aid this "emergency" temporality has become a permanent state of affairs, allowing neoliberalism to further strengthen its hegemony under the cloak of "post-politics".

I would argue though, that this effect is slightly different. Here, I'd want to draw on the idea of structural and subjective violence. In a sense situations like Haiti are the confluence of structural and subjective violence. There is a violence 'subjective' erruption of immediate violence (like an earthquake) that is recieved and conditioned within relationships of structural violence. What is fascinating is that international law frequently portrays itself as being 'incapable' of dealing with structural violence (and indeed of seeing it). When presented with a problem like poverty etc. in its 'structural' phase, international lawyers will frequently argue that these are problems that are too complex, too big etc. to be tackled by an immediate intervention, but have to move to an - ever-deferred - long time 'progressive realisation'. When the violent subjective erruption happens, this is when 'Band-Aid' politics come into play - abstracting all of these event from their material context.

What is interesting then, that in naturalising structural violence in the first place through the language of complexity etc. international law treats it as a necessary condition - thus it is generative of 'false necessity'. The moment at which the subjective violence occurs, this is rendered as a contigent fact outside of any political or material context.

This is perhaps problematic for a project of 'taking responsibility' for two reasons. Firstly, because the inability to 'take responsibility' isn't just a matter in our heads. It is at least partly generated by a the shape of the legal form. Secondly - and perhaps more importantly - in locating the problem in terms of 'responsibility' we are privileging (I think) writing as the site of political action. But how does 'taking responsibility' for the role of international law's role in imperialism work as a political intervention. Precisely because these issues are structural 'just' recognising things is not enough. If we have identified those structures which produce oppression and exploitation we also have to change, overturn and abolish these structures. As Fanon says (in Black Skin, White Masks):

In other words, the black man should no longer be confronted with the dilemma, turn white or disappear; but he should be able to take full cognizance of a possibility of existence. In other words, if a society makes difficulties for him because of his color, if in his dreams I establish the expression of an unconscious desire to change color, my objective will not be that of dissuading him from it by advising him to “keep his place”; on the contrary, my objective once he motivations have been brought into consciousness, will be to put him in a position to choose action (or passivity) with respect to the real sources of the conflict – that is towards social structures.
p.100

Work showing these connections is important precisely to put people in the position to choose is vital. But that is not per se political. What is political is taking a partisan position within the law - arguing relentlessly and inconsistently for Haiti (principled opportunism) - whilst also struggling for the ulimate abolition of those forms (including law itself) that produce these problems in the first place.

Schmitt and Space

Today I want to continue my discussion of Schmitt, which admittedly I started rather a long time ago. Now, this discussion has been quite difficult for me to articulate. This is because I had written some fairly comprehensive (and I thought pretty good) notes on these issues in my notebook and then kind of forgot about them (I’d quite like to work this up into an article at some point). Unfortunately, a few months ago (prior to the first instalment of this), I got rather inebriated and left my bag (containing my notebook) on the train. Lost property has not been forthcoming and, as such, I’ve kind of been working from memory. Anyway, this piece is probably best read with my post on Schmitt and appropriation, so keep that in mind.

It’s difficult to know where to start with this, but to recap, according to Schmitt, spatial orders produce legal orders. This is made as a general claim, but I think it useful to see how Schmitt deploys this in the specific case of international law as jus publicum Europaeum (European public law), this is useful because it illustrates the mechanisms by which this functions and allows us to criticise some of ethical Schmittians. Basically, here Schmitt’s argument is that the jus publicum Europaeum was in an inter-state order in which European states were the participants, all of which were treated as formally equal.

The centrepiece of this system was the so-called ‘bracketing of war’. Essentially, Schmitt argues that in the jus publicum Europaeum states in war would treat each other as a justus hostis – a just enemy:

In the 18th and 19th centuries, European international law achieved a bracketing of war. The opponent in war was recognized as a justus hostis and was distinguished from rebels, criminals and pirates. To the same degree war lost its criminal character and punitive tendencies, thereby ending discrimination between a just and unjust side. Neutrality was able to become a true institution of international law, because the question of the just cause, the justa causa, had become juridically irrelevant for international law.
p.309

This had a number of concrete effects: firstly, wars of annihilation no longer tended to happen, since the enemy was always a ‘just’, public enemy as opposed to an absolute one and secondly, these wars would no longer threaten the whole nomos (viz. the spatial order). In international law circles, a lot of people have taken this as being pretty interesting, and used it as a kind of ethical dimension to Schmitt. The argument is often deployed against supporters of humanitarian intervention – who argue that in designating one enemy as being unjust, evil etc. it paradoxically produces wars which are unrestrained.

But this kind of ethical (limited) endorsement of Schmitt is rather undermined by Schmitt’s point as to the spatial foundation of this European order. Essentially, Schmitt argues that ‘appearance of vast free spaces and the land-appropriation of a new world made possible a new European international law among states: an interstate structure’ (p.140). Basically, Schmitt’s argument is that the European inter-state order (and its bracketing of war) depended upon the existence of an area of free space where unlimited war could be displaced:

The significance of the amity lines in the 16th and 17th century international law was that great areas of freedom were designated as conflict zones in the struggle over the distribution of the new world. As a practical justification, one could argue that the that the designation of a conflict zone at once freed the area on this side of the line – a sphere of peace and order ruled by European public law – from the immediate threat of those events “beyond the line,” which would not have been the case had there been no such zone.
p.97

And:

This spatial order did not derive essentially from internal European land-appropriations and territorial changes, but rather from the European land-appropriation of a non-European new world in conjunction with England’s sea-appropriation of the free sea. Vast, seemingly endless free spaces made possible and viable the internal law of an interstate European order.
p.183

So, the ethically valuable justus hostis for Schmitt depended on vast tracts of ‘free space’. And guess what, when Schmitt is talking about ‘free land’ he isn’t talking about uninhabited land. Above all for Schmitt, this ‘free land’ is that of the ‘new world’, viz. land that is inhabited by the ‘uncivilised’. So, for Schmitt, the Westphalian system depends on an imperialist system, whereby certain peoples don’t even merit being treated as an ‘enemy’ but simply inhabitants of ‘free space’.

Evidently, this isn’t great for those who would wish to appropriate Schmitt’s thought. But, beyond this, it is necessary to inquire what exactly Schmitt means by ‘free space’, and how he ascribes this quality to the ‘new world’. Probably the most pertinent thing to note is this:

The struggle for the land-appropriation of the New World and for land still free and outside Europe now became a struggle among European power complexes, which, in this specific sense, are “states”. Whoever lacked the capacity to become a “state” in this sense was left behind.
p.130

Furthermore:

The intellectual advantage was entirely on the European side, so much that the New World simply could be “taken,” whereas, in the non-Christian Old World of Asia and Islamic Africa, it was possible only to establish subjugated regimes and European extraterritoriality.
p.132

This gives us a window to more broadly consider Schmitt’s claim. In a sense, his argument as to the relationship between intra-European relations and imperialism/colonialism mirrors Marxist claims about imperialism. So, the classic Marxist position is (a variant of the idea) that capitalist social relations internal to European states mean that there comes a point when capital must search for new markets (for whatever reason – this can be over-production, under consumption and class struggle), as such it becomes necessary to expand into the peripheries (these may be non-capitalist, semi-capitalist, less advanced etc.). But Schmitt simply doesn’t do this, indeed, as I noted on the previous discussion of appropriation, he really doesn’t think through why it is that Europe seeks to find ‘free space’. So, although he outlines some kind of drive towards this process, he doesn’t really grapple with the question of whether there is any logic to it. An especially useful reference point here is of course David Harvey and his notion of the ‘spatial fix’; here, whilst paying the correct amount of attention to the importance of space, Harvey understands that this is driven by a social logic of capital accumulation.

The notion that we are dealing with a process driven by social relations allows us to interrogate Schmitt’s conception of ‘free space’. In the discussion above it seems like Schmitt is making two points. First, the new world was not composed of states and so is not included in the order, and as such dominated. Secondly, owing to the intellectual and technology difference between Europe and the ‘new world’ Europe could treat the new world as if it was free space. Thus, for Schmitt, ‘free space’ is a kind of social fact, which the law recognises and accounts for. This view is highly problematic for a number of reasons. But two spring to mind immediately, firstly, as Mutua notes (‘Why Re-Draw the Map of Africa?’ (1995) 16 Michigan Journal of International Law 1113, at p.1126), a number of African states met the criteria for statehood, but were nonetheless subject to colonisations. Secondly, the kind of technological determinism Schmitt engages in doesn’t explain why it is the more technologically advanced European states did not dominate less advanced European states.

Thus, there doesn’t seem to be anything ‘pre-given’ about the idea that this is free space. But the notion of the spatial fix helps us see that it is not so much that these spaces were intrinsically ‘free’ and, driven by capital accumulation it was necessary that they be posited as such. The Marxist notion of the spatial fix helps us push this account, inasmuch as it explains the dynamics underlying the creation of ‘free space’ and why certain zones are designated as free. It is here, that some of the positions outlined by Schmitt above can come in; the process of capital accumulation on a world scale necessitates the idea that certain zones be designated as ‘free space’. In practice though, this is going to depend on a number of factors, the level of resistance to the process, the level of development of the country, inter-imperialist rivalry etc. Thus, rather than being an unproblematic ‘fact’ ‘free space’ is a unity of historical, social, political and economic determinations – space is a social relation.

This complexity also underlines another problem with Schmitt’s analysis. As I noted in the piece on appropriation Schmitt occasionally seems to succumb to a positivist temptation of treating law as recognising certain ‘facts’, thus ignoring its constitutive complicity in the creation of such facts. ‘Free space’ is a great example here. In Schmitt’s account, the ‘fact’ of free space (and this is repeated in his considerations of the air and the sea) seems to precede law: law then recognises this fact and is simply not active in those areas of free space (hence ‘beyond the line’ there was no law). But in recognising that there is nothing ‘intrinsically’ free about free space, we understand that its existence is always posited as such, as part of a complex social and political process. But this positing only takes place through the law; the claim that an spatial configuration is ‘free’ is always a legal one – indeed the notion of ‘freedom’ in this respect is legal. It is not enough to say that law isn’t ‘active’ here (since that is likely untrue anyway), since the declaration that ‘different standards apply’ is always a legal one.

Thus, we can see that whilst legal orders are driven by complex spatial considerations (which themselves are driven by processes of accumulation); legal argument is also used to create new assertions of ‘free space’. I think here it is useful to turn to a post I made a while ago – here – on the relationship of particular configurations of imperial power to legal argument. Thus, I would argue that given spatial configurations (understood as driven by capitalist social relations – imperialism) produce distinctive modes of legal argument. But, also, that in so doing imperialists may try and argue for new spatial configurations through the legal form. For, as I have argued time and time again, what is the war on terror if not an attempt to entrench a hegemonic coalition through the articulation of zones of free space? The logic of the war on terror, which tends to promote temporally and spatially unlimited forms of intervention for some states is ultimately an attempt to argue that those states which are not ‘on board’ are ‘free zones’ in which intervention can always take place (witness Pakistan for a great example of this).

Ok, so this is admittedly a bit muddled, and I want to do some more reading, but I do think that bringing Marxists to bear on Schmitt’s framework here does produce something quite useful.

Schmitt and Appropriation

So a few months ago (!), I finished reading Carl Schmitt’s The Nomos of the Earth (2003 Telos Press), which I have been meaning to do for a long time. As ever, the book has to be read with some caution, as Schmitt’s politics (and even if they aren’t Nazi politics they are massively reactionary politics) inform his argument. Indeed, one of the really interesting things about the book is the way in which (I think) it deals quite a serious blow to the ‘ethical Schmittians’ or those who think we can appropriate Schmitt’s concept of the political for the left.

Anyhow, given that things have been pretty quiet on the blogging front of late (although fear not brave readers, I am finishing work in two weeks, although unfortunately I then need to begin flat hunting – doh!) I thought I might do some posts on Das Nomos, although admittedly looking over my notes I remain uncertain how much of it I actually remember of it. Schmitt’s central and most interesting pre-occupation in Das Nomos is the relationship between ‘space’ (not outer-space but the general kind) and international law. His central contention is that every legal order is based on the appropriation of space.

Although Schmitt’s initial exposition of this claim feels a little mystical, his concrete description of it is pretty interesting. Thus, to take the example of property, Schmitt argues:

But even when the initial land-division establishes purely individualistic private ownership or common clan ownership, this form of property remains dependent on the common land-appropriation and derives legally from the common primeval act. To this extent, every land-appropriation internally creates a kind of supreme ownership of the community as a whole, even if the subsequent distribution of property does not remain purely communal, and recognizes completely “free” private ownership of the individual.
p.48

This is a fairly brilliant point (and one which should make libertarians etc. think). Every legal conception of property has to begin with some collective which has ‘collective’ ownership of the land, which can then be parcelled out in whatever way is seen fit. This problem is very obvious in – for example – Locke; who has to rely on religious argument as a background to his stuff about individual appropriation.

This is also useful insofar as it continues and deepens Schmitt’s critique of legal positivism. Schmitt’s classic argument (although I can’t find a reference to hand) is that positivists deny the violence of law’s founding moment by always treating it as pre-supposed, as a fact which has no relevance to the continuing existence of a legal system once it has come into being. But of course, with this perspective here, this ‘founding moment’ is constantly there, always hovering as the essential legitimating ‘fact’ which determines every individual proprietorial dispute.

Later (and this is something I will explore in another post) Schmitt goes further than this, arguing that different spatial configurations produce different types of legal orders. But one thing I want to flag up here, and it’s something I will return to later, is that whilst Schmitt does better than classical legal positivism in pushing forward legal theory, I would argue that he doesn’t go far enough (or if he does, then he goes in the wrong direction).

This is because, for all his posturing, Schmitt treats appropriation as a ‘fact’. Thus, in his appendix to the book, Schmitt attempts to extend his legal theoretical position into one with larger aims, he firstly argues:

Each of these three processes – appropriation, distribution, and production – is part and parcel of the history of legal and social orders. In every stage of social life, in every economic order, in every period of legal history until now, things have been appropriated, distributed, and produced. Prior to every legal, economic and social order, prior [327] to every legal, economic, or social theory are these elementary questions: Where and how was it appropriated? Where and how was it divided? Where and how was it produced?
p.328

Immediately, then, we can see that it might be said that Schmitt has succumb to the positivistic temptation. When is there ever a period that is prior to every ‘economic and social order’? Appropriation will always take place in an always already existing set of social and economic circumstances. Although this might not seem that important, it is essential when we consider Schmitt’s move with appropriation. Here Schmitt argues:

The history of peoples, with their migrations, colonizations, and conquests, is a history of land-appropriation. Either this is the appropriation of free land, with no claim to ownership, or it is the conquest of alien land, which has been appropriated under legal titles of foreign-political warfare or by domestic-political means, such as proscription, deprivation, and forfeiture of newly divided territory. Land-appropriation is always the ultimate legal title for all further division and distribution, thus for all further production.
p.328

So for Schmitt appropriation always has primacy. He can treat it like this because he isolates appropriation from its social and economic context (which it apparently precedes). As such, he doesn’t have to answer the stunningly obvious question as to why appropriation proceeds in a certain way. Such a move can also be seen in the left attempts to appropriate Schmitt’s legacy. A recent example of this is Susan Buck-Morss’ article ‘Sovereign Right and Global Left’ ((2007), 19 Rethinking Marxism 432-451), in this article she articles that the Marxist conception, placing modes and relations of production in the driving seat, is inferior to the Schmittian conception, which recognises appropriation, and the political as ‘prior’ and determining of these. But of course in actual fact, people don’t just ‘appropriate’ for the hell of it, they are driven by wants, needs, requirements etc.

The only way to avoid this particular recognition (that appropriation is itself driven by social relations of production etc.) is do what I think Schmitt does. This is to adopt what one might call (although I think incorrectly actually) some kind of Hobbesian position, whereby human beings are ‘naturally’ covetous, and so constantly seek to appropriate more and more. To be honest though, Schmitt doesn’t even have the courage of his convictions on this point, adopting instead a boringly liberal position and arguing:

All efforts to abolish war immediately are thrust into the context of three great substantive problems, which are more political than juridical if one chooses to make a distinction between juridical and political: security, disarmament, and peaceful change.
p.275

Of course, this would seem to fly in the face of the claims as to the centrality of appropriation in ‘the history of peoples’, given that apparently non-peaceful appropriation can be stopped simply through disarmament, security etc. You may have noticed that when I criticised Schmitt for treating appropriation as somehow ‘prior’ to everything else I didn’t mention law. This was deliberate because it is slightly more problematic. Firstly, I think it’s easy to imagine a point at which there wasn’t law, and specifically, that appropriation could occur in a way that was prior to the existence of a legal system (in a way that simply isn’t possible with the notion of economy or society broadly conceived). Secondly, Schmitt does deal with the way in which appropriation is regulated by law at various points. Indeed this is quite a telling point against him, clearly – especially in the ‘modern age’ – appropriations take place within an already existing framework of law – both national and international – and are usually conceived in legal terms.

So, where does this leave us? I think it is fairly unsustainable to claim that appropriation is some kind of independent, founding moment – given that appropriations always take place within, and are driven by, social, economic and legal relations. Thus, whilst appropriation may well be a vital part of human existence, and have especial relevance for the law it is driven by something else. This also helps us see another flaw in what Schmitt is saying. Once we stop treating appropriation as some kind of independent variable, we also move away from the idea that it is appropriation is in any way a unitary, unchanging ‘act’ that is remains similar across different epochs of human life and modes of production.

Thus, what we might look at is the way that appropriation – an act which is of course structured by the law – changes with different modes of production. So, what is especially relevant for us, is that we can see the specific legal form of appropriation capitalist international law is one centred on capital accumulation. Thus, appropriation is driven by the social relations of capitalism – internationally this is of course imperialism and capital accumulation – (although this is dialectical of course, because appropriation of ‘raw materials’ – as it were – given rise to modes of production) and as such reflects this. This gives us a way into examining the insights of TWAIL, insofar as we can see that the law of appropriation is structured by the core-periphery divide, which is itself produced by the imperatives of capital accumulation.

And what is especially important about capitalist accumulation is its ‘infinite’ character. Because of course, since capital only exists to realise itself, over and over again, capitalist appropriation is of an unlimited and continuing character. It is here that we can properly (following Arendt in particular) situate the Hobbesian depiction of the never-ending appropriation of the war of all against all. As such, we might say that Schmitt’s foregrounding of appropriation acquires some validity when understood as some proper to capitalist imperialism. Yet without understanding the social relations that give rise to this specific form of appropriation Schmitt’s theorisation will always be inadequate.

What we have here is an account of appropriation which sees it as driven by an embedded in the social relationships of its time. Specifically with international law, we can see how the legal argument that constitutes appropriation is shaped by the demands of capital accumulation. In my next post I want to extend this examination into Schmitt’s conception of free space. Hopefully, at the end of this we’ll be able to arrive at a conception that preserves Schmitt’s insistence on the importance of space to legal argument, but moves beyond this insofar as space is seen as a social relation.

Some Thoughts on Imperialism and International Law

Richard Seymour (i.e. Lenin of the Tomb) has written some very interesting pieces that touch on issues close to those I have recently addressed – namely the historical and theoretical relationship between imperialism, humanitarian intervention, self-defence and the war on terror. Both of these pieces are very insightful and I would recommend people read them (although I assume such a recommendation on my part is pointless, as I doubt anyone who reads my blog doesn’t read the Tomb). That being said, I have a few nit-picky concerns with Lenin’s stuff, particularly as concerns the role an importance of [international] law.

Who has the right to self-defence?
One of the important things that I think has to be done with this post is to properly disaggregate all the legal issues and then use them to properly frame some of the problems that Seymour identifies. So, to start with, he notes:

It might be argued that today the lower caste of states do have some rights of self-defence, but these are heavily circumscribed. Thus, the ruling caste reserves for its exclusive use the right to weapons of mass destruction, to aerial bombardment, invasion, and so on. Israel has a right to all of this but, say, Iran does not.

Immediately, there is a problem. Seymour is conflating the right to use self-defence, with the degree of force which can be used in self-defence and the degree of force that can be used more generally in an armed conflict. Although this may seem like a pedantic distinction, I’ll argue later that it’s actually pretty important.

In a similar vein, Seymour points out the centrality of statehood to many of the arguments defending Israel’s actions, noting:

The question of statehood is important. It is not uncommon for Israel's supporters to emphasise the fact that it is a sovereign state while its designated foes (Hamas, Hezbollah, Fatah, Islamic Jihad etc) are non-state actors. This emphasis presumably derives from the perspective of Just War theory…

Perhaps, perhaps, perhaps. But it strikes me that the more sophisticated defenders of Israel’s actions don’t really need to refer directly to Walzer on this point. Instead all that needs to be referred to is international law, which although increasingly concerned with non-state actors, still takes the sovereign state as its main actor. Indeed, in international law, the right to self-defence can only be seen as accruing to states. Thus, I’ve noted before, the anomalous character of the Palestinians in international law really muddies the water. Historically, in the period of decolonisation (when there was a really radical Third World movement) this argument was less prevalent, precisely because the question of violence in pursuit of self-determination by non-state actors was so vital to their interests. But with the general move away from an international law whose agenda genuinely was – to some degree – shaped by these movements this argument seems to have disappeared (and to be honest may well surface in the imperialist camp with the perhaps Kosovo/Georgia serving as a bit of a harbinger to this).

It’s important to note this, I think, because it actually buttresses Seymour’s more general argument. International law’s focus on statehood (as opposed to just Walzer’s) is deeply exclusionary. As Anghie and the TWAIL movement have shown us, the centrality of the sovereign state to international law has a genetic connection to the old exclusionary/transformative notions of a Family of Nations that were around in 19th century international law. These notions of statehood were irreparably bound up with notions of European (and I would insist capitalist) notions of internal social organisation. I think this is important to note because it’s not just some commentators who embody these commitments but very fabric of our international order.

The general thrust of Seymour’s work is particularly provocative and although I find it persuasive I think the above caveats would lead me to slightly different conclusions to him. Seymour argues [this is a long quote but I think it’s worth engaging with]:

This caste arrangement was once structured by claims of racial solidarity, such as those of Anglo-Saxonism. Such are the origins of the 'special relationship' between the US and UK in the later 19th Century, in which the US resisted the urge to annexe any part of British territory in Canada or the British West Indies while the British not only acceded to American expansionism but embraced it at key points, such as during the 1898 war. Anglo-American competition did not disappear, but it was twinned with a new strategic orientation based in part upon racial sentiment and fear of emerging rival imperialisms of Russia and Japan. At this point, race and conceptions of democracy were inseparably intertwined, the latter seen as a function of the former. That is, for American imperialists such as Theodore Roosevelt no less than for the British empire, democracy was appropriate to the 'white race' which had alone reached a state of self-government.

The trend since 1945, however, has been to make racism invisible - as Robert Vitalis puts it, there is a pervasive 'norm against noticing' the way in which the global order is powerfully structured by race … It would be pedantic to list the examples of democratic states that have been targeted for subversion and military attack by western states, or the democratic movements that have felt the iron heel of western repression. It is sufficient to note that in the most recent case of Israel's 'self-defence', the opponent has been the elected government of Palestine. Such violence by western states is neither democratic in method nor in aim, unless one is willing to descend to the argument that by definition political coercion by democratic states constitutes an enlargement of democracy's scope.

I have to say I have a real problem with this. Whilst historically it is true that much of the old international law was racialised, this racism was of a cultural/social/economic type, rather than of the biological type (or it was at least an odd mix of the two). This is particularly notable because although the standard of civilisation was not always applied ‘fairly’ there were a good many ‘non-White’ states which gained full legal personality, or were at least granted ‘semi-civilised’ status. Once we hit early on in the 20th century (I don’t know exact dates for all of this) China, Japan, Egypt etc. were all fully sovereign. There are two driving factors behind granting these countries sovereignty – one is the direct, immediate interest of imperial powers, so as China Miéville points out (Between Equal Rights, 2005, Brill at pp.240-250) the recognition of certain states as possessing some sovereign rights was essentially driven by the fact that the major imperialist powers had made treaties with these nations that simply had to be accounted for.

The second factor was the internal character of the states – which comes from both 19th century international law and the Mandate System – essentially once many states genuinely had massively altered their internal life so that they were large, capitalist centralised nation-states they were granted some legal personality. Ultimately, I would argue that can again be (more broadly) related to the idea of ‘interest’, these nations were forced to reorganise so that they would be more suitable for the spread of international capitalism. To my mind the racialisation of these issues is secondary, or rather, much of the racism is as ad hoc as the notion of civilisation (indeed the two are bound up), often responding to particular imperial interests.

I would argue that the above considerations hold true today, albeit in a modified form. So, Seymour is right to point out that – to some degree, although again we shouldn’t go nuts about this either – ‘democracy’ has assumed a similar role to civilisation. He is also right to point out that in practice this notion of democracy is highly flexible as a good number of democracies have been undermined by Western states – often mounting some kind of international law claim [although as an aside I think part of this comes from the very formal notion of democracy deployed by Western states; democracy is a set of institutions – largely symbolised by continuing elections – and rights – often property rights but also an abstractly free press etc. – which have to be guaranteed for the future. This allows substantively democratic movements who do not meet these conditions to be ignored, whereas brutal reaction acting in the name of these commitments to be supported].

But I really don’t think this is a racialised notion. To my mind this is – as civilisation was – much more about the interests of imperial powers. The West didn’t undermine Latin American or Arab leftist regimes because they weren’t white, they did it because these regimes contradicted their interests (and let’s not forget that the CIA ran operations even against some of its 'allies'). It seems to me that the criterion of democracy – as noted in my very long square brackets – has responded much more clearly to interests than to race. Now, often the two coincide, and I think some of this is just contingent – Europe developed capitalism first, Europe expanded first; so capitalist organisation is European – but it’s telling that imperialists don’t seem to care about the colour of its puppet regimes’ skins and will happily support some ‘brown-on-brown’ (and even brown-on-white) action should it support their interests.

Conclusions
Putting all of this hodge-podge together with some new stuff I want to make some conclusions.

Firstly, international law often has an abstract standard that it applies to everyone – this may not always be done fairly but in principle people support this. This abstract standard is something like – all states have the right to self-defence etc. But very often although this standard is abstract it essentially universalises a certain way of doing things which gives imperialist states a massive advantage. So every state has a right to self-defence. More importantly for us the rules regarding what it is permissible to do in war are massively in favour of high tech imperialist states. So, long range weapons which can’t be aimed properly (i.e. rockets) are ‘indiscriminate’ and as such any attack by them is per se impermissible. But long range, high-tech ‘smart’ weapons which nonetheless kill many more civilians are not per se indiscriminate and so the standard of proportionality, which is often largely a whitewash.

Indeed this abstract focus on direct-ness often operates in such a way. Whilst it is a war crime to directly target any civilian not taking part in the hostilities, it is not per se a war crime to launch an attack knowing that it will kill civilians not taking direct part in the hostilities (which leads to the ridiculous situation where a civilian driving an ammunition truck cannot be shot, but the truck could be blown up). As Marx noted, applied equal standard to unequal people is a right of inequality.

Often this is the favoured tool of the imperialists because it allows them to claim faux equality whilst massively reinforcing their own interests.

Secondly, outside of this equal standard there are some formally unequal standards that attempt to entrench imperial power within the law. Humanitarian intervention is one of these – insofar as the right clearly doesn’t accrue to everyone. More important in this respect is the War on Terror – which in practice is an attempt to entrench the right of certain states to intervene military unlimited by temporal or spatial considerations.

But, I believe that resort to this type of logic – and to some degree it underpins most Israeli interventions – often is a sign of weakness. The preferred method of imperialist states is surely to be able to operate through the ‘normal’, formally equal channels of international law as this allows them to avoid accusations of – well – imperialism. I think the vital point is that these sort of logics only come into play in the case of weakness or inter-imperialist rivalry. As I have previously noted, the US only resorted to strategies such as humanitarian intervention or the war on terror because it was facing opposition in the Security Council (although not initially with the war on terror).

What is common about both of these strategies – to my mind – is that whilst there may be something of a ‘colour line’, this colour line is secondary to, or viewed through the prism of, imperial interests. So, whilst the standards may be somewhat Eurocentric, this is – I think – largely because capitalism and imperialism grew up here (as it were). China Miéville – in his forthcoming article on Haiti – has a fascinating reflection on the relationship between international law and capital accumulation, arguing that we might well conceive international law as serving to facilitate capital accumulation. This is something I may run with in the next few years (providing someone gives me money to do a PhD), as we can interestingly see the initial period of exclusionary international law as linked very much with primitive accumulation. Present international law – and the way that it facilitates certain types of imperial violence – can be useful conceptualised in terms of accumulation by dispossession, allowing imperial states to intervene against those who are proving problematic for accumulation.

It’s vitally important to distinguish between these two and condemn them both. Because if we argue only that the second type (of formal exclusion) operates, we allow our opponents to point out the way in which genuine formal equality does operate.

Obama the Imperialist
I find this piece much more straightforward to agree with, so I’m not going to comment on it massively. One thing I would say is that the attacks in Pakistan seem to indicate that Obama won’t necessarily be dropping the ‘war on terror’ moniker (not that it really matters because, in substance, it is much the same thing as liberal interventionism). Indeed, in many respects Obama may simply strengthen the US’ claims to imperial exceptionalism. In the case of Bush it was ridiculously easy to point out the flaws and contradictions in claiming to love freedom etc. because of the obvious mistreatment of vast numbers of people – Guantánamo and extraordinary rendition being the most evident. But Obama has been quite decisive in ending much of this ‘spectacular’ mistreatment (through a series of spectacular moves of his own) whilst maintaining the claims as to American exceptionalism. The spectacular is actually quite a useful category for examining the transition from Bush to Obama. Bush (and the opposition to him) embodied the spectacular insofar as his administration was involved in some very spectacular forms of violence – torture, detention without trial, shock and awe. These forms of violence were vehemently opposed by a coalition of liberals and the left. But the point is that the US claims to exceptionalism should not just be undermined by spectacular violence but structural violence too – the prison industrial complex, immigration, poverty, complex racial problems. Since much of the opposition to the Bush administration was based on spectacular violence, Obama’s spectacular renunciation of much of this violence leaves him in the perfect position to argue for a renewed American exceptionalism.

John Bolton was very telling on election night – arguing that with the election of Obama the US could no longer be criticised for its racial problems (around 1:10). Ultimately, then, I fear that a lot of what China Miéville has said has come to pass – by emphasising the ‘revolutionary’, spectacular problems of the Bush administration (which did give us some allies) – we have undermined our abilities to criticise that which follows it, and may even have inadvertently created the conditions for a revitalised American exceptionalism.

The Non-War on Terror?

So, one story in this week is David Miliband’s repudiation of the ‘war on terror’. Now, notwithstanding the obvious cynical timings of the remarks (viz. just before Bush goes and Obama comes in) I can imagine that there are a good number of liberals (although not those of the cruise missile type) who draw hope from these words. The same can evidently be said (with less caveats) for the incoming Obama administration, especially in light of the noises Hillary Clinton has been making.

Personally, I’m not so sure. This is not to say that I think these people are lying (although they could be) but rather that this change in policy is much more likely to be a change in emphasis, with the same systemic, structural and conjunctural forces shaping this policy as before. However, I do think that Miliband’s piece illustrates – quite usefully – a certain liberal take on the war on terror.

Importantly, Miliband argues that:

The phrase had some merit: it captured the gravity of the threats, the need for solidarity, and the need to respond urgently - where necessary, with force.

These ‘merits’ should be borne in mind, because I think they tell us more than you might think initially. Having identified these merits Miliband goes on to identify some of the problems that he associates with the ‘war on terror’. Firstly, it ‘gave the impression of a unified, transnational enemy, embodied in the figure of Osama bin Laden and al-Qaida’ whereas in reality ‘the motivations and identities of terrorist groups are disparate’. Secondly, (and I think this is especially important to Miliband) it ‘implied that the correct response [to terrorism] was primarily military’.

I think that this misses a good deal of the real importance of the war on terror. The idea that the war on terror merely implied that the ‘correct response was military’ whilst obviously being correct (as the alternative could have been criminalising terror) misses the way that it also shapes the way in which military force can be used. In other words, Miliband’s analysis of the ‘military’ aspect of the war on terror misses its legal aspect. In this respect it’s worth revisiting an old post I made on a great article by Fredric Megret. Essentially, Megret points out that the logic of declaring a ‘war’ on terror didn’t just mean that ‘the correct response was primarily military’ but also that (owing to the continuous threat of terrorism and presence of terrorists all over the world) this military force was temporally and spatially unlimited – in other words it was a right to intervene anywhere, at any time.

This unlimited right to intervention comes with a second point, which again shows us that Miliband misses some of the (legal) import of the war on terror. For Miliband the logic of the war on terror treats terrorists as one unified bloc, again I think this is a shallow analysis that misses the real function. Because of course if – as above – the war on terror rhetoric lets you intervene against terrorists anywhere and at any time then we have a problem. Unless this ability is limited then certain rogue states etc. might take it upon themselves to use military force against their enemies. Thus, the designation of terrorists as the ‘enemy’ and (further) of certain states as ‘terror states’ or ‘terror supporting states’ is absolutely crucial. These states become disallowed from using force. The converse of this (and again this is crucial) is that certain non-terrorist, good states gain the right to act in the above special way.

Linked to this is that making terror ‘central’ in the way that the war on terror does means that terrorism is posited as threatening the integrity of the international system. In practice then, the move to war, created a legal situation in which a few – western states – are able to use violence, anywhere and at any time so as to secure the interests of the international system. In other words, the war on terror was a way for a certain section of imperialism to legally entrench its capacity for intervention against its enemies (because terrorists always reside somewhere an attack on terrorists is always an attack on a state).

Even in this piece Miliband doesn’t do this. Let’s return to the merits that Miliband identified with the war approach – clearly the sum total of these remains the same, terrorism is a massive threat (that must sometimes be met by force) and ‘solidarity’ has to be invoked against it. Indeed according to Miliband a community of ‘values’ is what needs to respond to terrorists.

So, in practice, what I have identified as the most salient features of the war on terror seem to go unchallenged by Miliband. This should not surprise us. Miliband has always been an advocate of humanitarian intervention. Indeed in November of 2008 he wrote an article defending ‘liberal interventionism’ (and this phrasing is important - liberal interventionism is - theoretically - much broader than mere humanitarian intervention). As I have previously noted, those salient features of the war on terror are – in some sense – a continuation of humanitarian intervention, whereby certain ‘liberal’ states gain the special right to intervene in other states, in the name of protecting the universal values of the system – e.g. human rights. Again, as I have noted before, these attempts at entrenching imperial power strike me as stemming from a structural weakness of Anglo-American power, which is seriously challenged on all fronts by a resurgent Russia, by China, by certain states in the Middle East, by Latin America and by domestic movements. This can only be exacerbated by the current economic problems.

So rather than address these key features, what is it that Miliband wants? Well it strikes me that his key manoeuvre is an attempt to move away from the perceived military focus of the war on terror. So what does Miliband want instead?:

Terrorist groups need to be tackled at root, interdicting flows of weapons and finance, exposing the shallowness of their claims, channelling their followers into democratic politics.

And from the liberal interventionism article:

Intervention should not always be military and only rarely be forcible. We must focus on intervening early, before a country descends into full-scale conflict – much as the international community did in Kenya following last year's election.

Where troops are needed, we must plan rigorously for the immediate aftermath. The first months after a military intervention are critical to maintaining local support and legitimacy. We must recognise that military solutions alone will not stop conflict. We need a civilian force – police, judges, engineers and others – with the professionalism and responsiveness of the armed forces. There needs to be clarity about who is in charge of the international presence, rather than fragmentation between countries and between military and civilian operations.

So, basically, Miliband wants to keep the scope of the war on terror in place, but wants to make a – quite Foucauldian move – from the ‘sovereign violence’ of war to the power of discipline. So he is basically proposing that certain imperial states have a monopoly on intervening in any number of seemingly domestic fields in countries on the periphery. Now, the first point to note is that this clearly isn’t something we should celebrate, there is at least something honest about invading a country and using military force. But also we need to realise that this is nothing new. Imperialist states have been claiming this right – or actualising such a ‘right’ in practice – since imperialist states first came into being. More importantly, the war on terror always involved this stuff too. It may be true that the Bush regime foregrounded military violence as being particularly important – but it also skilfully used the UN (with the Counter Terrorism Committee, 1267 Committee etc.), sanctions, aid etc. to achieve its aims. Now it may be true that the Bush regime was slightly less flexible than Miliband’s proposal, but I really don’t think there’s a fundamental break.

So then, why the rhetoric? Well, a big part of it has got to be ideological (in the crude sense). Knowing how unpopular the old war on terror is it becomes necessary to differentiate oneself from it. Shrewdly then, Miliband (and by extension Obama et al) is able to differentiate himself from ‘Bush’ without actually changing very much at all.

This is very clear in relation to international law. The Miliband-type liberal claim is that the Bush regime simply ignored international law and what has to be done is to ‘move back’ to the rule of law. But – and I think China Miéville puts it best – the problem with this is that:

[I]t allows right and left to agree on an agenda which actually obscures many truths of power. So for example, much of the mainstream left will stress how there has been a neo-conservative revolution manifested by an upsurge of violently aggressive unilateralism, a complete denigration of international law, the complete ignoring of its European partners and so on. What I would say is that in fact the American ruling elite are, and have always been, much more split and nuanced and variegated on these questions, as have the European elite, than that would suggest; and that this discourse of the European liberal left creates a kind of simplistic bogeyman. For every Richard Perle, saying that international law is dead, yay-hay, there is for example a John Yoo, very eruditely defending American imperial interests in international legal terms … So this discourse of revolution—from the right it can legitimate certain things, such as Guantánamo, which I’m not prepared to legitimate; and from the left, it lets European social democracy and some apparatchiks of American power equally off the hook.
p.8

(China has written a fantastic article on Haiti that deals with these issues which will eventually be available in the Finnish Yearbook of International Law – everyone must read it as soon as it comes out). I think the point here is totally right. The particular ignorance of the war on terror’s intimate connection with international legal argument was something I think both left and right wanted to promote in public. The right got to pose as big strong men. The left was able to ‘let law off the hook’. What was really important about this was that the liberal-legal-left could totally deny any complicity in the war on terror, brilliantly, when it was their turn to promote imperial interest they could simply claim to be restoring the ‘rule of law’ without really changing very much (and indeed changing very little fundamentally) [note - Phil has a good post that (as ever) disagrees with me, I need to address this properly].

Such are the politics of imperial law.

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.

Historical Materialism Conference 2007

As you probably already know, this weekend was the annual Historical Materialism Conference, which I had the good fortune to attend. Unfortunately I missed Friday's sessions (prior commitments) which meant I didn't get to see Zizek (damn, damn, damn, damn) but the rest of the Conference was pretty damn good. The first thing to say is that despite the current poisonous climate on the left (and particularly as between the SWP and everyone else) the atmosphere at the Conference was really good (bearing in mind there was a mix of people from different traditions there), everything felt very comradely (although of course the interventions were occasionally slightly cutting) and everyone seemed to get along well enough. So, as is usual in the old blogosphere I thought I'd give a [not so brief] summation of those sessions which I did attend.

Saturday

I rolled in a bit late on Saturday, so I missed the first session of the day. Not that I would really have listened to it much. The next session I attended was on 'Marxism, Pashukanis and the Law'. In this session I actually 'presented a paper' on Pashukanis, Legal Nihilism and Legal Strategy, which I will probably put up here at some time (once I've cleaned it up a bit - the notes were really only intended for my consumption only). There weren't too many people here (although there were a few), which was kind of predictable, as law is not a particularly glamorous topic for Marxist analysis. There were two other contributors aside from me - Andreas Harms presented a paper on 'Commodity Form and Legal Form' and Bill Bowring presented a paper on 'International Law, Lenin and Self-Determination'. Both of the papers were of high quality and we got some good discussion in as well. It feels kind of weird summarising this session, so I'll leave it for the atendees to do so (hopefully some of them blog).

There weren't any more 'sessions' for the day, as it extended into a 'meet the editors' session and a lunchbreak, I did have some pretty interesting conversation during this period, so it was all to the good.

The next 'session' was a plenary one, featuring some rather big hitters, the talk was on 'Neo-liberalism and Neo-imperialism' and the speakers were Alex Callinicos, Robert Brenner and David McNally.

Robert Brenner
The central thrust of Brenner's argument was the relationship between the war in Iraq and the US' geopolitical strategy. Brenner argued that the Iraq war was a puzzling phenomenon which represented a real rupture with previous US strategy in content if not form. Brenner argued that during the 2000 election no one would have predicted that the Iraq war would come around in the time that it did. The Republicans seemed to have a fairly low-key foreign policy, certainly not the type of messianism that seemed to characterise them post-9/11. Furthermore, it was argued that the US had fulfilled its three key strategic aims (which it had held since World War 2); these aims were

1. To freeze and weaken 'communism', third world statist nationalism and statism more generally so as to allow the free movement of [US] capital throughout the globe.
2. Consolidate US hegemony in Japan and Europe - depriving them of their ability to disrupt the framework of international capitalism; key to this aim was depriving them of their military power and compensate them for this by providing them with security.
3. As a consequence of the above two aims the US intended to implement a neo-liberal agenda throughout the world, with all the consequences thereof

Brenner argued that the US was willing to do this since US capital was so powerful that it didn't require the formal protection of the US state. So on this reading the US had - according to Brenner - recognised the essential validity of the Leninist critique of imperialism - namely that monopoly-capital imperialist states vying for domination of the world's resources inevitably culminated in war, which was not conducive to the continued position of the US and global capitalism. To combat this the US entered into a 'radical Kautskyite' project of restructuring the global situation as above - the only question was whether the US was disciplined enough to continue enforcing the consensus.

All of this was encapsulated in the term 'New World Order' as used by Bush et al. This meant that there was a new approach to the international use of force:

• Don't use force unless you can use massive amounts of force
• Other conflicts should just be 'policing' or assymetrical conflict
• Avoid committing ground troops if you can - use cruise missiles, bombs etc.
  

All of ths as summarised in a phrase by Madeline Allbright that 'military force' but not war should be used (which got a big laugh from the audience, but really the distinction isn't as ridicoulous as it first, certainly international law tends to distinguish between the use of military force and an armed attack or war). This was basically a neo-liberal form of imperialism and one in which generally states toed the line (the thrid world accepted the neo-liberal consensus the [not yet] axis of evil was going to the table, etc.).

So US policy in Iraq has to be understood in relation to this. It is therefore necessary to view US policy towards Iraq in this context. What the context what seem to suggest is that no US adminstration would really want regime change in Iraq, as this would be internationally counterproductive - it would be costly, destabilising and could whip up Arab resistance across the Middle East. Futhermore, the Shia could not be trusted to serve as a counterweight to Iran. This is why Saddam was not overthrown following the first Gulf War and a policy of 'containment' was pursued in relation to Iraq.

Against this backdrop the recent war in Iraq does seem to be a break (and to a lesser extent so does Afghanistan). Brenner's next task is to explain how this could happen. Brenner traces the strategic rupture to the ascendence of the neo-conservative movement within the American state apparatus and their huge influence within the State Department. It was only with 9/11 that they were able to gain control over foreign policy.

Brenner then gave an internal examination of this movement. According to Brenner the key theoretical position for the neo-conservatives is the 'fungibility of force'. By this they mean that American military domination can be used to do anything, and the neo-conservatives were interested in 'harvesting the fruits of military dominance'.

It is then necessary to understand how the neo-conservatives gained this power. Brenner roots the neo-conservative movement in the Republican far-right, who had taken over Congress in 1994. They had always had trouble gaining power and were only able to do so by pushing the foreign policy aspect. Once they had gained power they acted as a 'Shadow Cabinet' that pushed Clinton into all sort of things (like passing the Iraq Liberation Act) but they could only achieve limited success and certainly couldn't impose their domestic agenda. But 9/11 changed all of this and gave the neo-conservatives the pre-text they needed to actualise both their domestic and international agenda.

Brenner's analysis was pretty damn interesting (he's also a very good speaker). I quite liked his focus on concrete, 'micro' US politics and the way in which they interact with the global sphere, a Gramsci quote seems particularly relevant here:

Do international relations precede or follow (logically) fundamental social relations? There can be no doubt that they follow. Any organic innovation in the social structure, through its technical-military expressions, modifies organically absolute and relative relations in the international field too. Even the geographical position of a national State does not precede but follows (logically) structural changes, although it also reacts back upon them to a certain extent (to the extent precisely to which superstructures react back upon the structure, politics on economics, etc.). However, international relations react both passively and actively on political relations (of hegemony among the parties). The more the immediate economic life of a nation is subordinated to international relations, the more a particular party will come to represent this situation and to exploit it, with the aim of preventing rival parties gaining the upper hand (recall Nitti's famous speech on the technical impossibility of revolution in Italy).
Gramsci, The Modern Prince

So I actually thought that Brenner's analysis was a niecly dialectical one, similar in the way that Gramsci presented it. I also see nothing a priori wrong with the ascription of such a decisive role to a 'subjective' factors. Especially as these subjective factors are in a dialectical relationship with the objective situation (Lukacs comes immediately to mind on this point). This isn't to say that I think Brenner is entirely right, but I don't think we dismiss his analysis out of hand.

Alex Callinicos
Callinicos delivered another pretty awesome speech (you will hear this a lot, because I thought the quality of this session was absolutely stellar, even if the sweltering heat of the lecture theatre left much to be desired!). Alex presented his argument as one diametrically opposed to Brenner's. He argued that Brenner had only given us description, but no analysis - we can't just see Iraq as a random event we need a larger perpective and so must look at the historical connection between liberalism and imperialism.

Callinicos noted that the US has always eschewed formal imperialism - and continuously legitimated itself with reference to this. He looks back to the 'imperialism of the open door' - in which the role of military power was only to enforce the conditions of a liberal world economy, this of course should not - as a rule - involve the use of ground troops. The predecessor of this type of imperialism was the 'imperialism of free trade' practiced by the British Empire in the 19th century and Britain relied heavily on informal empire in Canada and China. The US has a consistent, radical version of this.

Following World War 2 the US dominated the advanced capitalist world and built up a series of institutions, but this liberalism was only ever transnational. After the collapse of the Soviet Union the US was able to convert this transnationalism into global liberalism. This means that for Callinicos there was no fundamental break in the project - and it was one vigorously pursued by the Clinton administration. For Callinicos therefore, Clinton was the true pioneer of the fungibility of military power.

But of course hegemony is always about force and consent, and they are always combined in different ways. The manner in which these methods are combined is what differentiates the neo-cons from Clinton. Thus, for Callinicos this is a matter of quantity not quality there is no rupture. Callinicos further argues that the Bush administration was radicalised post-9/11 and that in this context the neo-cons cannot be considered 'mad'. He argues that in the face of the increasing threat of China's economic power a rational argument could certainly be made out for the US using its only comparative advantage in this conjuncture that of military force. Iraq was therefore important because rising captialist powers were dependent on its oil and the US needed to assert this.

The question Callinicos thinks we need to ask is 'what are the interests of US imperialism'? When we do this we understand that the US ruling class is complex and the best strategy is always a contested question - we have to look at te question of the imposition of ideology on a world scale, and the geo-political is central to this.

All well and good - but I think Brenner responded pretty well by saying 'we don't really disagree on much'. I think this is probably the case - all they really disagree is whether there is a qualitative or quantitiative difference between Clinton and Bush (which sounds big but - meh - scales). Brenner just helps us to understand why it is that one side won the argument. But I'd actually go further than this. Callinicos seems to argue two contradictory things. On the one hand he argues that there is no rupture between Clinton and Bush, but on the other hand he seems to argue that China posed a qualitatively new threat to the US. Because of course post-WW2 there has been no capitalist power that posed a threat to the US in the way China has (although I guess the state-cap people would argue the USSR was a rival capitalist power, so maybe change the reference to post-1989?), since every other 'threat' was pretty damn friendly to the US, and were happy to allow the US maintain Pax Americana. So, on this reading, Alex seems to be arguing that the emergence of China has disrupted the 'radical-Kautskyism' of the US, since it doesn't accept the US' managerial role. But surely this would indicate a rupture, in line with Brenner.

David McNally
Although I really liked the first two talks David McNally's was far and away my favourite (I think much of the audience agreed with this too). In contradistinction to the first two McNally's position was to start from a general theoretical analysis and proceed from there. So for McNally the central point of depature was that of Marxist value theory. We need to begin from this perspective - so McNally argues - because we live in a world of alienated social relations and theory must de-fetishise them.

McNally's talk revolved around 5 arguments:

• Neo-liberalism involves radically extending and intensifying the commodity form
• This is achieved through 'monetarising' more and more aspects of human life
• This involves the extension of primitive accumulation
• This occurs on a variety of levels and entails imperialism
• World money becomes decisive

So McNally's basic argument is that the phenomenon we call 'neo-liberalism' must be understood as the extension of the commodity form - not a conscious project of the capitalist class but a result of the value form itself. It is fundamentally connected to new forms of discipline, and is primarily exercised through the discipline of money - the IMF, the World Bank etc. This leads to a reversal of the partial decommodification of labour.

Dispossession is also fundamental to this (hence the importance of primitive accumulation) because land has to be converted into capital. But since this land is occupied by other people, they have to be turfed off. For this reason there is a nexus of land, violence and dispossession - which gives rise to new enclosures and modalities of class struggle arise against this. Furthermore, ecological disaster is incorporated into this, so disasters which displace people are taken advantage off (Hurricane Mitch was used to get rid of the Honduran indigenous population).

McNally further linked this process to militarisation - war is of course central in 'clearing out' areas of land, be that through death or fleeing. All of this has also led to a great rise in the industrial reserve army, which has grown massively as people have been forced out of their land in the process of dispossession.

McNally went on to criticise the approaches of David Harvey and Rosa Luxemborg, who he thinks failed to properly elaborate the 'laws' of this economic process - meaning they cannot properly theorise it. Instead they often remain at the level of (very powerful) description. [He also made a really interesting point about dialectics and subjects positing their own presuppositions - but I'll ignore that]. Further, his problem with Rosa's approach is that she assumes this form of imperialism requires permanent occupation, which is clearly not the case, as the discipline of money suffices to compel national elites to implement dispossesion.

McNally then went on to focus heavily on what he called 'world money'. By this he means the currency which serves as the 'global' medium for exchange. He argues that there has beeen an intensification of unequal currecny exchange, with the global South losing out on this. But the concept has been under theorised, and it is important, because the state that issues 'world money' will get the surplus on exchange, and so can appropriate value. This means that different nation states struggle over who is to issue world money.

McNally argues that this can be illustrated by the Euro project in the European Union, where the states of the European Union have tried to create a currency with all the characteristics of world money. McNally describes this as a form of inter-imperialist rivalry and denies that such rivalry need be militarised.

McNally ended with the argument that we need to emphasise anti-neo-liberalism and anti-imperialism highlight the need for a de-commodification of labour - that is to say the socialist revolution (which earnt him a rousing cheer).

What I really liked about McNally's talk was the way that he was able to articulate linkages between his theoretical paradigm and our practical trajectory. His analysis does explain rather well a lot of contemporary phenomena in a basic theoretical way, and I think this is to be welcomed.

Ultimately, I think all of these talks worked well, and frankly if we could have combined them all into one big talk it would have been awesome. So David sets the economic-theoretical scene for us, Alex embedded it in a broader historical context and Bob examined the specific way in which ruling classes responded to the broader need for the expansion of value. Each therefore had the merit of contributing to a totalising perspective, and with a little work we could trace the analysis of value directly into Alex's and Bob's talk. Of course this is the inherent weakness of the short talk format, but nonetheless I was impressed by this session.

OK, I've clearly gone on long enough, so I'll stop now, and do something else. Tomorrow (maybe?) I want to at least outline the talk on 'Global Flashpoints' that was also on Saturday, particualrly as I felt it offered a really interesting perspective on the Palestinian resistance.

Cross posted here.

Lenin, Lenin and Zizek on rights

Hello dear readers (well those who remain). I will post more soon (if you want me to) but I have terrifyingly busy this term and not particularly inspired. However, I felt compelled to respond tothe furore surrounding this whole 'cartoons' situation. First and foremost I really suggest you read K-punk on this which is for my money by far the best analysis of the whole situation - one which manages to negiotate the twin pitfalls of a knee 'I love freedom of speech' reaction and the 'long live Allah!' response. In many respects this reminds me of Zizek's Against the Double Blackmail, where he states:

What if phenomena like the Milosevic regime are not the opposite to the New World Order, but rather its SYMPTOM, the place at which the hidden TRUTH of the New World Order emerges?

In a rather typical post Lenin (the God of the left blogosphere for what my opinion's worth) addresses the issue of 'free speech' as regards the current problems:

Free speech, then, is in material terms, in this climate, and at this conjuncture, the freedom to denigrate black people, Muslims, Arabs and just about anyone liable to come on the wrong end of Western power. So cut it out. It's not funny any more, just quit it.

Normally, I think I come off as quite the 'moderate Marxist' but in this case I think I agree with Lenin to a large degree. As I hope I have consistently stressed in this blog 'rights' and 'freedom' are necessarily indeterminate, and as such are infinitely contestible - as such specifc conjunctura; balances of class forces will affect them rather a lot. Lenin's analyis spot on as it is reminds me of another Lenin, who (apparently) responded to the question of freedom with:

“Freedom yes, but for whom? To do what?”

Such is the necessity of a materialist analysis. Freedom simply cannot be understood as some 'idea' eternally floating above all specific historical and material considerations. Rather particular types of 'freedom' must be considered as rooted in and posited by particular material conjunctures and organic tendencies. If one ignores the fact that 'freedom' is demarcated by struggle one lapses into a horrifyingly bourgeois discource (I'm not saying 'freedom' is bourgeois, merely that freedom is a historically and materially conditioned concept). In this regard I really like Zizek's quote vis-a-vis human rights:

So, to put it in the Leninist way: what the ‘human rights of Third World suffering victims’ effectively means today, in the predominant discourse, is the right of Western powers themselves to intervene politically, economically, culturally and militarily in the Third World countries of their choice, in the name of defending human rights.

But. One thing that all of these (exceedingly clever) people seem to ignores it the possibility that conjunctures can change. Whilst I agree entirely that currently many 'rights' are entirely dominated by capital I also understand that their contestibility means that class struggle can change their content. Though I am under no bounds about the historical and material origin of rights (commidty production see my older posts) I also get that in our current organic situation struggle can redefine these rights.

Thus rather than 'abstaining' from freedom perhaps we should be engaged in redefining it...