Global Justice and Social Conflict

The Foundations of Liberal Order and International Law

Tarik Kochi

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781317571421
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: National Security
• Index: Politics & International Relations

Global Justice and Social Conflict offers a ground-breaking historical and theoretical reappraisal of the ideas that underpin and sustain the global liberal order, international law and neoliberal rationality.

Across the 20th and 21st centuries, liberalism, and increasingly neoliberalism, have dominated the construction and shape of the global political order, the global economy and international law. For some, this development has been directed by a vision of 'global justice'. Yet, for many, the world has been marked by a history and continued experience of injustice, inequality, indignity, insecurity, poverty and war – a reality in which attempts to realise an idea of justice cannot be detached from acts of violence and widespread social conflict. In this book Tarik Kochi argues that to think seriously about global justice we need to understand how both liberalism and neoliberalism have pushed aside rival ideas of social and economic justice in the name of private property, individualistic rights, state security and capitalist 'free' markets. Ranging from ancient concepts of natural law and republican constitutionalism, to early modern ideas of natural rights and political economy, and to contemporary discourses of human rights, humanitarian war and global constitutionalism, Kochi shows how the key foundational elements of a now globalised political, economic and juridical tradition are constituted and continually beset by struggles over what counts as justice and over how to realise it. Engaging with a wide range of thinkers and reaching provocatively across a breadth of subject areas, Kochi investigates the roots of many globalised struggles over justice, human rights, democracy and equality, and offers an alternative constitutional understanding of the future of emancipatory politics and international law.

Global Justice and Social Conflict will be essential reading for scholars and students with an interest in international law, international relations, international political economy, intellectual history, and critical and political theory.

Chapter 1

The ‘failures’ of the global liberal legal order

International law in crisis?

Is the global liberal international order in decline? Is it in crisis? Can international law provide adequate solutions to ongoing global problems of conflict, war and terror, alongside problems of global economic crisis, slow economic growth, global inequality, impoverishment, mass migration, fascism, climate change and environmental destruction? In terms of conflict, have the institutions of international law ‘failed’ in relation to acts of US aggression (Iraq 2003–), Israel’s blockade of Gaza (2007–), war in Syria (2011–), Russian aggression (Ukraine and Crimea 2014–), war in Yemen (2015–), and genocide in Myanmar (2016–)?

In this chapter I examine the extent to which the global legal order can be seen to be failing. In doing so I describe a particular historical trajectory and content of international law, one tied to the modern traditions of liberalism and liberal internationalism and trace then the outlines of ‘liberal international law’ and the ‘global liberal legal order’. I argue that a contemporary attitude that supports and enacts these, ‘liberal pragmatism’ and ‘moral humanitarianism’, hides a deeper set of problems facing the global liberal order which goes beyond the self-interested, rhetorical and strategic ‘politics’ of international law and international relations, beyond the limitations of UN Security Council bargaining, and beyond the inconsistent and indeterminate application of the doctrines and laws of war.

In what follows I trace the liberal internationalist attempt across the 20th and 21st centuries to create a global liberal legal order around the ideas of ‘liberal peace’, security, and global economic prosperity built upon the globalisation of capitalist economic relations. I show how the idea of ‘liberal peace’ has for many in the developing world and Global South been built upon a history and continued practice of military aggression and violence often justified through the legal and moral fiction of the ‘just war’. For much of the world’s population the establishment of a zone of liberal peace and emergence of a global capitalist world system has come at the price of wars of colonisation, containment, ‘security’ and humanitarianism, and via political interference, proxy and dirty wars aimed at ordering territory and bodies and organising systems of endless accumulation.

Alongside this I examine how in the late 20th and early 21st centuries a long-term profitability crisis affecting Western capitalist economies, combined with radical neoliberal economic and political reforms, have begun to undermine from within the traditional liberal idea that global peace might be attained through global trade and shared capitalist economic prosperity. Across the Global North wealth inequality has risen dramatically and social protection has been eroded through neoliberal policies of commodification, marketisation, privatisation and austerity. Linked to this is a story of uneven economic development across the ‘BRICS’ countries and the Global South which are still largely marred by widespread economic inequality, poverty, insecurity and social violence. Viewed from the perspective of neoliberal and authoritarian capitalist development which has seen the reversal of the social liberal and social democratic regulation of capital in the Global North, and the predominant absence of social liberal and social democratic regulation of capital in the Global South, it is unclear how global inequality and impoverishment could be reversed through the principles of liberal internationalism, coordination between liberal and non-liberal states, and via the current conceptual and institutional structure of international law.

Against the arguments put by some liberal theorists that part of the solution to the crisis of the global liberal order is to turn to a form of regulation that embraces transnational networks stretching across a ‘disaggregated world order’ and forms of ‘global constitutionalism’, I draw upon critical transnational theory, which emphasises how a neoliberal, global legal order can be better understood through the concepts of ‘transnational capitalist class’ and ‘transnational state apparatuses’. Each of these concepts help to demonstrate how the many ‘failures’ of the global liberal order can be viewed as ‘successes’ for transnational capitalist elites and multinational corporations who have very effectively mobilised transnational legal institutions to accumulate capital and discipline states and populations worldwide.

Through such an account I develop a particular way of approaching and thinking about international law, in which law is understood as a field of contestation and struggle. I argue that international law is the outcome of a process of historic and ongoing struggles not only between transnational and nationalist capitalist class fractions, but between local, national and transnational social movements who demand the reorganisation of the global order in accordance with alternative visions of what constitutes ‘global justice’. In this sense international law can more specifically be seen as constituted by a series of normative and material struggles and conflicts over what counts as the idea of social and economic justice, and over how to implement this on a global scale.

Liberal pragmatism and moral humanitarianism

In the 1990s, with the end of the Cold War, a self-conscious optimism pervaded much of liberal legal and political theory and was held especially by those scholars who turned their minds to the questions of international law, war and global conflict. Many ‘liberal optimists’ saw a moment of historic triumph of a global liberal legal and political order and the global capitalist economy, and imagined a world in which all states would slowly adopt a liberal-capitalist political and economic model.¹ Within this climate optimists like John Rawls offered a revised theory of Immanuel Kant’s moral and legal cosmopolitanism claiming that as liberal states do not go to war against each other, then the instances of war will lessen as more states become ‘reasonable’ and adopt the liberal model.²

1 For example: Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992).

2 John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1993).

Other liberals, such as Jürgen Habermas and David Held broadly shared this Kantian-cosmopolitan optimism, with the qualification that greater reform was needed to strengthen the liberal-cosmopolitan institutions of international law.³ Generally the optimists saw the solution to problems of global conflict by way of the historical expansion of cosmopolitan international law, the decrease of state sovereignty and the use of international law to police ‘rogue states’ and to protect against human rights abuses through the notions of humanitarian intervention and doctrine of the ‘responsibility to protect’. However, by the early 21st century, after the launch by the USA of the global ‘War on Terror’ and the invasions of Afghanistan (2001–) and Iraq (2003–), much of this liberal optimism had receded. The aggressive invasion of Iraq by the USA and the UK (with Australia in tow), viewed as clearly ‘illegal’ by many international lawyers,⁴ seemingly put to rest the cosmopolitan ideal that liberal states generally act ‘reasonably’ and that a global system of law would triumph over state power.

Yet, the liberal dream has not completely gone away, its optimism has been replaced with an attitude that might very loosely be called ‘liberal pragmatism’.⁵ Liberal pragmatism involves a degree of reflection upon the ‘illiberal’ uses of US state power, and upon the limits of the liberal international project in the face of resurgent Chinese economic and military superpower, revived Russian nationalism and aggressive military expansion, and the rise of economic power in Asia and in the other ‘BRICS’ countries of Brazil, South Africa and India. In this respect the liberal pragmatist approach can be somewhat cautious, stressing strategies of multilateralism in the hope of using liberal values to build international consensus. However, at a moral level liberal pragmatism often re-emphasises the importance of military intervention to protect the liberal international order and to respond to instances of humanitarian and security crisis. Sometimes this involves what Anne Orford refers to as ‘muscular humanitarianism’, that is, of suspending a degree of historical reflection and focusing upon the immediate, urgent and heroic responsibility to act so as to stop the suffering of a designated group of humans.⁶ Aspects of such an ahistorical moral attitude were exemplified by Western military interventions in Libya (2011) and, in Iraq and Syria against ISIS (variously referred to as IS/ISIL/Daesh/Islamic State in Iraq and Syria) (2014–). The attitude can also be seen in the Western bombing of Syrian military targets in response to the Syrian government’s use of chemical weapons against civilians in 2017 and 2018.

3 Jürgen Habermas, “Kant’s Idea of Perpetual Peace, With the Benefit of Two Hundred Years Hindsight”, in Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal ed. James Bohman and Matthias Lutz-Bachman (Cambridge, MA: MIT Press, 1997); David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge: Polity Press, 1995).

4 See generally: Philippe Sands, Lawless World: Making and Breaking of Global Rules (London: Penguin, 2006). See also: Noam Chomsky, Failed States: The Abuse of Power and the Assault on Democracy (London: Penguin, 2007); Robert Fisk, The Great War for Civilisation: The Conquest of the Middle East (London: Harper Perennial, 2005).

5 See generally: G. John Ikenberry, Liberal Leviathan: The Origins, Crisis and Transformation of the American World Order (Princeton, NJ: Princeton University Press, 2012); Ann-Marie Slaughter, The Idea That Is America: Keeping Faith With Our Values in a Dangerous World (New York: Basic Books, 2007); Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Princeton, NJ: Princeton University Press, 2004); Alex Bellamy, The Responsibility to Protect: A Defence (Oxford: Oxford University Press, 2014).

6 Anne Orford, Rereading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge: Cambridge University Press, 2003).

For the liberal pragmatist responding to the current global order, a very particular and specific set of questions are consistently raised. What should liberal states do in the face of overwhelming human catastrophe? What should a state do in response to genocide, or grave human rights abuses? The urgency and the panicked manner by which such a question is put by 24-hour rolling news coverage, by media analysts and politicians, helps to push memories of past illegal invasions and manipulated legal arguments into the background. The conjuring of images of terrorist ‘barbarians’ murdering civilians and intent on destroying the ‘civilised’ world raises the humanitarian and security stakes ever higher.

As noted by both David Kennedy and Martti Koskenniemi the invoking of an urgent liberal humanitarianism is argumentatively quite powerful. A theorist or policy maker can claim to uphold the authority of international law and global human rights and demand that we think about contemporary conflict primarily at the level of a ‘moral’ register. As a rhetorical strategy liberal pragmatism is successful in carrying an audience via suspending and crowding out other modes of reflection and judgement. Legal and historical memory is re-moulded by the power of a moral position which needs little recourse to the details of the complicated and contested global historical record. Memory is often flattened to the level of emotional urging, to the imminent demand which positions the sceptic and critic as uncaring, irresponsible and above all immoral.⁷ Hence, while past mistakes may be acknowledged, what matters for the liberal pragmatist is that we focus upon issues of humanitarian and security crisis in the present, that we act now so as to protect and defend the human rights of self and other. Such a moral position can dispense with history at will because it demands that we think about and respond to acts of war, violence and killing only at the register of the ever-now, the ever-present, the forever-immediate, the pragmatic. In this regime of moral urgency there is little room to reflect upon and critique the current system of international law, nor is there much space given to imagining an alternative global legal order.

7 David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton, NJ: Princeton University Press, 2004); Martti Koskenniemi, The Politics of International ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Introduction: justice, liberal order and international law
• 1. The ‘failures’ of the global liberal legal order
• 2. Natural law, natural rights and property
• 3. Liberalism, violence and inequality
• 4. Justice and constitutional antagonism
• 5. A global constitutional question
• Bibliography
• Index