An Outline of a Marxist Course on Public International Law

Leiden Journal of International Law

Volumn 17, Issue 1, 2004, Pages 1-30

  Chimni, B S ^a  

^a JAWAHARLAL NEHRU UNIVERSITY   (India)

Author keywords

character of contemporary international law; course on public international law; critical alternatives; mainstream scholarship; Marxism

Indexed keywords

EID: 27644491534     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156504001591     Document Type: Article

References (123)

1. The term ‘subaltern class’ is being used in this paper to include all oppressed and marginal groups in society. It therefore includes exploitation and oppression based on class, gender, race, and caste. But since ‘subaltern class’ is not simply a cultural formation, but a historical category, this exploitation and oppression is to be located in the matrix of both property relations and lived histories.
2. On the difficulties of making the characterizations of ‘mainstream’ and ‘marginal’ approaches in international law see R.Mullerson, Ordering Anarchy: International Law in International Society (2000), 49.
3. A. Orford, ‘Embodying Internationalism: TheMaking of International Lawyers’, (1998) 19 AustralianYearbook of International Law 1, at 16.
4. But see M. Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (2000), 214.
5. C. Tomuschat, ‘International Law: Ensuring the Survival ofMankind on the Eve of the New Century’, (1999) 281 Recueil des Cours 9 at 39.
6. D.Kennedy, ‘WhenRenewal Repeats: ThinkingAgainst the Box’, (2000) 32NewYorkUniversity of International Law and Politics 335, at 372.
7. For a detailed critique of the New Haven approach see B. S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (1993), ch. 3.
8. From a feminist standpoint an attempt has been made in H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis (2000).
9. B. S. Chimni, ‘Discourse Ethics and International Negotiations’ (mimeo). See generally J. Habermas, Moral Consciousness and Communicative Action (1990); J. Habermas, Theory of Communicative Action (1987), I.
10. Feminist international lawyers had to confront this critique fromMILS. See Orford, ‘Discourse Ethics and International Negotiations’ note 3, at 25-6.
11. J. Crawford, The Creation of Statehood in International Law (1979), 36.
12. For a very basic introduction to relevantMarxist sociology see Chimni, The Creation of Statehood in International Law note 7, at 213-20.
13. E. Pashukanis, Pashukanis: SelectedWritings on Marxism and Law, ed. P. Bierne and R. Sharlet (1980), 174 (emphasis added).
14. A. Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’, (1996) 5 Social and Legal Studies 321.
15. N. Poulantzas, Classes in Contemporary Capitalism (1978), 49 (emphasis added).
16. UNSC Doc.S/23293 of 17 Dec. 1991, Annex II. The text of the Guidelines has been reprinted in (1992) 31 ILM, 1486-7.
17. T. M. Franck, ‘The Emerging Right to Democratic Governance’, (1992) 86 AJIL 46.
18. For the distinction between recognition of states and recognition of governments see Crawford, ‘The Emerging Right to Democratic Governance’ note 11, at 27-9.
19. H. Smith, ‘Why Is ThereNo International Democratic Theory?’, in H. Smith (ed.), Democracy and International Relations: Critical Theories/Problematic Practices (2000), 1, at 4.
20. J. Grugel, ‘State and Business in Neo-liberal Democracies in Latin America’, in Smith, ‘Why Is ThereNo International Democratic Theory?’ note 19, at 125; S.Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (2000).
21. Poulantzas, ‘State and Business in Neo-liberal Democracies in Latin America’ note 15, at 43-4.
22. B. S. Chimni, ‘Third World Approaches to International Law: A Manifesto’, in A. Anghie et al. (eds.), The Third World and International Order: Law, Politics and Globalization (2003), 51ff.; B. S. Chimni, ‘Marxism and International Law: A Contemporary Analysis’, (1999) Economic and PoliticalWeekly, 6 Feb., 337.
23. B. R. Roth, Government Illegitimacy in International Law (1999), 426.
24. The different historical phases ofmodern international lawmay be classified as follows: 1600-1760: old colonialism; 1760-1875: new colonialism; 1875-1945: imperialism; 1945-1980 imperialism (neo-colonialism); and 1980-: imperialism (globalization). For a brief analysis of the first four phases see Chimni, Government Illegitimacy in International Law note 7, at 223-36. For a review of developments in the current phase of globalization see Chimni, Government Illegitimacy in International Law note 22. Bourgeois imperial international law is to be distinguished from bourgeois imperialist international law of the period 1875-1945. The former characterization seeks to capture the essence of international law in the current period of accelerated globalization dating from the early 1980s.
25. K. Marx, Capital (1977), I, 225.
26. On the emergence of a transnational capitalist class seeW. I. Robinson and J.Harris, ‘Towards aGlobal Ruling Class? Globalization and the Transnational Capitalist Class’, (2000) 64 Science and Society 11-54. A ‘fraction denotes segments within classes determined by their relation to social production and the class as a whole’, at 23.
27. ‘Towards aGlobal Ruling Class? Globalization and the Transnational Capitalist Class’., at 22.
28. Poulantzas, ‘Towards aGlobal Ruling Class? Globalization and the Transnational Capitalist Class’ note 15, at 70 (emphasis added).
29. On the emergence of the global state see B. S. Chimni, ‘International Institutions Today: An Imperial Global State in theMaking’, (2004) 15 EJIL 1-37 (forthcoming).
30. See generally A. Linklater, Beyond Realism andMarxism: Critical Theory and International Relations (1999).
31. A. Gramsci, Selections from the Prison Notebooks (1971), 181-2;Marx, Beyond Realism andMarxism: Critical Theory and International Relations note 25, chs. XXVI-XXXIII. The fact also explains the recent differences between the United States and some key EU states; it inter alia reflects different strategies of exploitation and dominance.
32. E. P. Thompson, ‘Whigs and Hunters’, in Lloyd's Introduction to Jurisprudence (1985), 1057.
33. ‘Whigs and Hunters’., at 1056. (emphasis in original).
34. H. Collins, Marxism and Law (1982), 144.
35. M. Shaw, International Law (1997), 55; Akehurst'sModern Introduction to International Law (1997), 35.
36. The treaty entered into force on 27 Jan. 1980. For the text of the Convention see (1969) 8 ILM 679.
37. E. A. Korovin, ‘Soviet Treaties and International Law’, (1928) 22 AJIL 753, at 763 (emphasis added).
38. Pashukanis, ‘Soviet Treaties and International Law’ note 13, at 181 (emphasis added).
39. In thewords of Klein, ‘inviewof therather restrictive definition of “coercion” in the classical lawof treaties (as embodied in Art. 52 of the 1969 Vienna Convention), powerful States would still seem to enjoy a reasonably large freedom to press their claims’. P. Klein, ‘The Effects of US Predominance on the Elaboration of Treaty Regimes and on the Evolution of the Law of Treaties’, in M. Byers and G. Nolte (eds.), United States Hegemony and the Foundations of International Law (2003), 363, at 368.
40. L. Brilmayer, American Hegemony: PoliticalMorality in a One-SuperpowerWorld (1997), 75.
41. American Hegemony: PoliticalMorality in a One-SuperpowerWorld., at 72.
42. On the other hand, however, as Benvenisti emphasizes, ‘international lawmust recognize that governments are agents of only a part of the communities they purport to represent at the international negotiating table’. E. Benvenisti, ‘Domestic Politics and International Resources:What Role for International Law?’, in M. Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (2000), 114. For a critique of the state as a unitary actor from a legal-constitutional perspective see U. Kischel, ‘The State as a Non-unitary Actor: The Role of the Judicial Branch in International Negotiations’, (2001) 39 Archiv des Völkerrechts 268, at 268.
43. Charlesworth and Chinkin, On the other hand, however, as Benvenisti emphasizes, ‘international lawmust recognize that governments are agents of only a part of the communities they purport to represent at the international negotiating table’ note 8, at 123.
44. See section 10, infra.
45. D. M. Johnston, Consent and Commitment in theWorld Community: The Classification andAnalysis of International Instruments (1997), 57.
46. Consent and Commitment in theWorld Community: The Classification andAnalysis of International Instruments., at 49 (emphasis added).
47. Consent and Commitment in theWorld Community: The Classification andAnalysis of International Instruments., at 58.
48. Consent and Commitment in theWorld Community: The Classification andAnalysis of International Instruments., at 276 (emphasis added).
49. See Chimni, Consent and Commitment in theWorld Community: The Classification andAnalysis of International Instruments note 9. The grounds for the invalidity of a treaty listed in Part V of the Vienna Convention presently include error, fraud, corruption or coercion of a representative of a state and coercion of a state by the threat or use of force.
50. B. S. Chimni, ‘India and the Ongoing Review of theWTO Dispute Settlement System: A Perspective’, (1999) Economic and PoliticalWeekly, 30 Jan., 264-7.
51. For details see Chimni, ‘India and the Ongoing Review of theWTO Dispute Settlement System: A Perspective’ note 7, ch. 3.
52. According to Lowe, ‘interstitial norms’ ‘have no independent normative charge of their own. They do not instruct persons subject to the legal system to do or abstain from doing anything, or confer powers, in the way primary norms do. They direct themanner inwhich competing or conflicting norms that do have their own normativity should interact in practice.’ V. Lowe, ‘The Politics of Law-making: Are the Method and Character of Norm Creation Changing?’, in Byers, For details see Chimni note 45, 207, at 216.
53. A. Bagchi, ‘Compulsory Licensing and the Duty of Good Faith in TRIPS’, (2003) 55 Stanford Law Review 1529.
54. Akehurst, Art. 62 of the Vienna Convention on the Law of Treaties note 37, at 144 (emphasis added).
55. Byers, Akehurst note 4, at 205.
56. Shaw, Akehurst note 4 note 37, at 58; Byers, Akehurst note 4 note 4, at 205.
57. Shaw, Akehurst note 4 note 37 note 37, at 63 (emphasis added).
58. Byers, Akehurst note 4 note 37 note 37 note 4, at 206. See also S. Toope, ‘Powerful butUnpersuasive? The Role of theUnited States in the Evolution of Customary International Law’, in Byers and Nolte, Akehurst note 4 note 37 note 37 note 41, at 287.
59. Toope, ‘Powerful butUnpersuasive? The Role of theUnited States in the Evolution of Customary International Law’ note 62.
60. See B. S. Chimni, International Refugee Law: A Reader (2000), 146-52.
61. One state alone, even it is as powerful as the United States today, may not be able to influence the process of the formation of customary international law. In the present-day world a single state cannot redefine the rules of the game without undermining the legitimacy of the international (capitalist) system. That is why even the United States is compelled to heed the views and concerns of other advanced capitalist countries. See Toope, International Refugee Law: A Reader note 62, at 308-13.
62. Shaw, One state alone, even it is as powerful as the United States today, may not be able to influence the process of the formation of customary international law note 37, at 92.
63. Charlesworth and Chinkin, One state alone, even it is as powerful as the United States today, may not be able to influence the process of the formation of customary international law note 37 note 8, at 66.
64. Akehurst, Charlesworth and Chinkin note 37, at 63.
65. I. Brownlie, Principles of Public International Law (1998), 55.
66. Mullerson, Principles of Public International Law note 2, at 172.
67. Principles of Public International Law note 2., at 17, 178 (emphasis added).
68. The fact that today even China, despite protestations, more or less accepts the principle of restrictive immunity reveals the extent to which the bourgeois state has become the normal sovereign state. G.Wang, ‘Sovereignty in GlobalEconomicIntegration:AChinesePerspective’, in S.YeeandW.Tieya (eds.), International Law in the Post-ColdWarWorld: Essays inMemory of Li Haopei (2001), 357.
69. A good example of it is the Helms-Burton Act, 1996. For the text see (1996) 35 ILM 357. The impression that European states do not exercise extraterritorial jurisdiction is erroneous. See Brownlie, The fact that today even China, despite protestations, more or less accepts the principle of restrictive immunity reveals the extent to which the bourgeois state has become the normal sovereign state note 70, at 311-12.
70. It isperhapstruethat'theadoptionofanextraterritorialruleordecisionisnotalwayscontrarytointernational law, it is only contrary to international law when it does not have a reasonable link with the State enacting such a rule or making such a decision.’ B. Stern, ‘How to Regulate Globalization?’, in Byers, The impression that European states do not exercise extraterritorial jurisdiction is erroneous note 45, 247, at 257 (emphasis in original). But in the era of globalization a ‘reasonable link’ is not always difficult to establish for imperial states, especially when it is backed by power. H. L. Buxbaum, ‘Conflict of Economic Laws: From Sovereignty to Substance’, (2002) 42 Virginia Journal of International Law 932.
71. As Krisch puts it in the context of the Internet: ‘Through dominance of the markets,US law is spread globally’. N. Krisch, ‘More Equal than the Rest? Hierarchy, Equality and US Predominance in International Law’, in Byers and Nolte, It isperhapstruethat'theadoptionofanextraterritorialruleordecisionisnotalwayscontrarytointernational law, it is only contrary to international law when it does not have a reasonable link with the State enacting such a rule or making such a decision.’ note 41, 135, at 164.
72. As Krisch puts it in the context of the Internet: ‘Through dominance of the markets,US law is spread globally’., at 161.
73. Buxbaum, As Krisch puts it in the context of the Internet: ‘Through dominance of the markets,US law is spread globally’ note 76, at 957.
74. Buxbaum., at 966.
75. Buxbaum., at 972.
76. J. Braithwate and P. Drahos, Global Business Regulation (2000), 475-7.
77. But, as Stern notes, ‘the fact that the enforcement is territorial does not conceal or erase the fact that the prescription is extraterritorial, and thus the entire law remains illegal’. Stern, Global Business Regulation note 76, at 258.
78. For the text of the decision see WT/DS58/AB/RW, 22 Oct. 2001: Report of the Appellate Body. For a comment see B. S. Chimni, ‘WTOand Environment: The Legitimization ofUnilateral Trade Sanctions’, (2002) Economic and PoliticalWeekly, 12-18 Jan., at 133.
79. U. Baxi, ‘Mass Torts,Multinational Enterprise Liability and Private International Law’, (1999) 276 Recueil des Cours 297, at 312.
80. ‘Mass Torts,Multinational Enterprise Liability and Private International Law’., at 343; Hu Zhenjie, ‘Forum Non Conveniens: An Unjustified Doctrine’, (2001) 48 Netherlands International Law Review 143, at 159-62.
81. Baxi, ‘Forum Non Conveniens: An Unjustified Doctrine’ note 85, at 352; Zhenjie, ‘Forum Non Conveniens: An Unjustified Doctrine’ note 86.
82. C. M. Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’, (2001) 42 Virginia Journal of International Law 82.
83. ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’., at 96.
84. ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’., at 154-5 (emphasis added).
85. ‘The extension of the normative force of international standards by the device of conditionality is an important characteristic of contemporary international law.’ Lowe, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’ note 55, at 212.
86. M. Sornarajah, ‘Globalization and International Law: The Law as an Instrument ofHegemonic Power’, 76 (on file with the author).
87. G. Teubner, ‘Foreword: Legal Regimes of Global Non-state Actors’, in G. Teubner (ed.), Global LawWithout a State (1997), xiii.
88. Buxbaum, ‘Foreword: Legal Regimes of Global Non-state Actors’ note 76, at 938.
89. Buxbaum., at 939.
90. Sornarajah, Buxbaum note 92.
91. K. Mickelson, ‘South-North, InternationalLaw, and International Lawyers’, (2000) 11Yearbook of International Environmental Law 52, at 53.
92. ‘South-North, InternationalLaw, and International Lawyers’., at 56.
93. A. Aggarwal et al. (eds.), Poles Apart (2001), 382.
94. For some of the cases that have captured public attention in recent years see M. Anderson, ‘Transnational Corporations and Environmental Damage: Is Tort Law the Answer?’, (2002) 41Washburn Law Journal 399, at 405-6.
95. See generally Baxi, ‘Transnational Corporations and Environmental Damage: Is Tort Law the Answer?’ note 85.
96. T. Evans, ‘Citizenship and Human Rights in the Age of Globalization’, (2000) 25 Alternatives 415, at 416.
97. K.Marx and F. Engels, SelectedWorks (1970), III, 19.
98. K.Marx, Economic and PhilosophicManuscripts of 1844 (1959), 73 (emphasis added).
99. UN Doc. E/CN.4/Sub.2/2000/7, 17 Aug. 2000-Commission on Human Rights: Sub-commission on the Promotion and Protection of Human Rights, Fifty-second Session: Intellectual Property Rights and Human Rights.
100. B. S. Chimni, ‘Refugees and Post-Conflict Reconstruction: A Critical Perspective’, in E. Newman and A. Schnabel (eds.), Recovering from Civil Conflict: Reconciliation, Peace and Development (2002), 163, at 166-7.
101. T. Collingsworth, ‘The Key Human Rights Challenge: Developing Enforcement Mechanisms’, (2002) 15 Harvard Human Rights Journal 183, at 203.
102. D. Kennedy, ‘The International Human Rights Movement: Part of the Problem?’, (2002) 15 Harvard Human Rights Journal 101, at 108.
103. Shaw, ‘The International Human Rights Movement: Part of the Problem?’ note 37, at 541.
104. J. Crawford, The International Law Commission's Arts. on State Responsibility (2002), 1.
105. The International Law Commission's Arts. on State Responsibility., at 2.
106. The International Law Commission's Arts. on State Responsibility., at 74.
107. None of the recognized ‘circumstances precluding wrongfulness’, including the defence of ‘necessity’, cover the case.
108. None of the recognized ‘circumstances precluding wrongfulness’., at 75.
109. To put it differently, positivism ‘allow[s] international lawyers to avoid recourse to controversial moral judgements’. Brilmayer, None of the recognized ‘circumstances precluding wrongfulness’ note 42, at 98.
110. W. Czaplinski, ‘UN Codification of Law of State Responsibility’, (2003) 41 Archiv des Völkerrechts 76. Earlier, too, some governments such as those of Cuba, India, andMexico had suggested the ‘deletion of the Chapter on countermeasures altogether’. Crawford, To put it differently, positivism ‘allow[s] international lawyers to avoid recourse to controversial moral judgements’ note 110, at 48. ‘On the other hand, USA declared that the regulation proposed is too restrictive and in fact constituted an important limitation upon the right to apply countermeasures, the Draft should be re-thought and better elaborated in this respect’, Czaplinski, at 76.
111. ‘Transnational harm refers to injury which the state, or non-state actors, or forms of social organization do to themembers of other societies. The revolution in transnational harm is. the result of the globalization of capitalist relations of production and exchange.’ A. Linklater, ‘Towards a Critical Historical Sociology of TransnationalHarm’, in S.Hobden and J. M.Hobson (eds.), Historical Sociology of International Relations (2002), 162, at 170.
112. M. Gibney, ‘Transnational State Responsibility for Violations of Human Rights’, (1999) 12 Harvard Human Rights Journal 267, at 295.
113. H. J. Laski, The State in Theory and Practice (1935), 229.
114. V. I. Lenin, Selected Works (1975), I, 702.
115. J. Habermas, ‘The Fall of theMonument-I’, The Hindu, 5 June 2003.
116. H. Lauterpacht, The Function of Law in the International Community (1933), 437. According to Lauterpacht, ‘peace is pre-eminently a legal postulate’, at 438.
117. Note in this respect the shift from ‘weapons of mass destruction’ to ‘regime change’ as justification for the war against Iraq. See generally T. J. Farer, ‘Humanitarian Intervention before and after 9/11: Legality and Legitimacy’, in J. L. Holzgrefe and R. O. Keohane (eds.), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (2003), 53, at 80-9.
118. [1986] ICJ Rep., at para. 268.
119. I. Brownlie, ‘Kosovo Crisis Inquiry:Memorandum on the International Law Aspects’, (2000) 49 ICLQ 878, at 904.
120. Laski, ‘Kosovo Crisis Inquiry:Memorandum on the International Law Aspects’ note 119, at 254.
121. R. P. Dutt,World Politics 1918-1936 (1936), 23.
122. T. Bottomore and P. Goode (eds.), Austro-Marxism (1978), 44.
123. K. Renner, ‘The Institutions of Private Law and Its Social Functions’, in Lloyd's, Austro-Marxism note 33, at 1071