25 Feb ‘Follow the Money’: The Misery of International Law
I draw your attention to the title. It is an amalgamation of two phrases. Follow the money is pithy, even a little crass. It is often uttered in television crime dramas, usually to aid the protagonist identify the culprit. The Misery of International Law is the title of a book by Linarelli, Salomon, and Sornorajah. So provocative is this text on International Economic Law (IEL) that it is subject to at least four review essays: see Kanad Bagchi, Julia Dehm, Nicholas Perrone, and me. In their book, the trio argue that IEL supports the immiseration of an array of classes and societies. They provide extensive evidence that the regime has done so since its inception, concluding that we have every reason to suspect that it always will.
Each phrase in the title of my talk encapsulates an analytic concept that, I argue in this essay, is essential to conceptualising international law (and not simply IEL). Without these concepts, the system appears capricious, if not flawed. Many students, like many academics, must resort to varying degrees of cognitive dissonance to square the circle. For example, all states are equal but permanent members of the Security Council are more equal than others; all states enjoy absolute sovereignty unless Euro-American states decide they do not approve of the ruling authority and wish to overthrow it (until they don’t); and to become a nation-state, a people need only declare themselves so unless other states reject their declaration. Publicists will instantly recognise these conundrums and recall the discomfort we feel when students ask us, in all earnestness, to explain the contradictions.
My own solution when confronted by international law’s inconsistencies is what I present today. To make sense of the contradictions of international law, we need to do two things: follow the money and centre the misery international law produces. That is the thesis of this essay and I proceed in two parts. First, I set out four premises that inform my thinking. Without these, you will not understand the second, where I explain the value of money and misery as analytic concepts when confronting international law.
1- International economic law is an instrument of social engineering
My first premise begins with the widespread misunderstanding of IEL. If enrolment numbers are indicative, this subject is less popular during the study of law than other international legal subfields. I generalise but there is mounting evidence that students prefer criminal, commercial, environmental, and possibly even humanitarian qualifiers when studying international law. The word ‘economic’ is the source of student angst. Will the course involve macro or micro economics, whatever those happen to be? Must I be proficient in mathematics? Can I succeed even if I don’t understand the global economy? Law students are not unique in their fear for economic illiteracy is pervasive.
To be sure, IEL does regulate economic relations between states. Most professors dedicate the bulk of their syllabi to the regulation of trade, investment, and money. More so than economics, a grounding in political economy would serve students well. Yet, what is left out is most important of all: IEL is also a vehicle for widespread social engineering. Through their constitutive terms of reference, international financial institutions (IFIs), custodians of IEL, answer two core questions: who should regulate economic relations and how should we regulate them? The first question is political and the second is normative, meaning we cannot answer either objectively. In fact, the subjectivity of the answers is the source of much consternation, controversy, and incoherence in IEL. I explain this point with an obvious example.
IEL developed in the post-war period to account for increasing economic interdependence. The denationalisation of production and finance (globalisation) solicited the demand for inter-state cooperation. An absolute conception of sovereignty, one that presupposes 18th century forms of autonomy, was anachronistic. States had to cooperate, as they did when establishing the IFIs. Yet, our outlook remains wedded to a nationalist, mercantile, and increasingly nativist standpoint. We ask not how can we cooperate, but how I can maximise my self-interest.
In a world of scarce resources and a nation-state form of organisation, the answer is stark: at the expense of others. An ‘us or them’ viewpoint is antithetical to the cooperative drive that supposedly guides international law. Yet, both coexist—or cohabitate—and precipitate the incoherences that plague its operations. Reflection on the normative and political questions is necessary to reconcile the contradictions.
2- International law does not value cooperation
Another misunderstanding informs my second premise: IEL is the regulatory regime for global capitalism. Like IEL, capitalism also has two facets. As an economic system, it compels endless accumulation. By growing their wealth, even to cartoon proportions, capitalists like Bezos, Mittal, Gates, and Ma are abiding by the logic of capital. As a political system, it posits that the market is a sensible mechanism (the best!) for the distribution of scarce resources. Even the economically illiterate are familiar with this axiom. Yet the tangible operation of the market is glossed over, not to say concealed outright.
Champions of capitalism proclaim that the market is a democratic framework. Why? Because market actors choose if and how they wish to participate. This claim, however, is deceptive. If the market is the only mechanism for the acquisition of scarce and essential goods—think access to water, food, or shelter—then participation is not optional: neither hunger nor thirst are genuine alternatives. Beyond its coercive character, we must also acknowledge that market actors are not equal as those with greater wealth exert more muscular influence over a market’s operations. Governance by wealth is a plutocracy, a term unfamiliar to most despite its symbiosis with a market system.
Plutocracy is an egotistical mode of governance that rewards predatory behaviour. Again, market actors maximise self-interest at the expense of others. Even the denial of essential goods is valid if it strengthens an actor’s position within the marketplace. It is an adversarial system at its core that yields endless conflict.
If IEL is the regulatory regime for global capitalism, if capitalism is egotistical and predatory, then how is the international law to facilitate cooperation? Economic actors value their interdependence only to the extent that it improves their standing, at which point their predatory instincts take over. Cooperation within a capitalist social system is a fallacy.
3- International law universalises European interests
International law developed vis-à-vis the encounter between Europeans and peoples beyond Europe. Thanks to Antony Anghie and others, the history is well known and need not repeating here. It is sufficient to recognise that Colon’s voyages were motivated by mammon. His aspirations, along with those of Ferdinand, Isabella, and other imperialist monarchs, established the foundations of European international law, gradually universalised as a global system.
Recall the rights and responsibilities that emerged within Vitoria’s natural system of jus gentium or law of peoples: to trade, to settle, and to proselytise. Notice the centrality of economic interests to Vitoria’s thinking. Access to markets and resources were primordial in the framework, as was European morality which the natives were legally bound to internalise. Conquest was endogenous to the development of international law and vice-versa. The use of force was common when seeking to extend European interests, always under the cover of an emergent legality (for those who wish to read more on this, I recommend James Gathii’s War, Commerce, and International Law, Sven Beckert’s Empire of Cotton, and Michael Fakhri’s Sugar and the Making of International Trade Law).
Despite repeated attempts to reform our thinking about Eurocentrism in international law or to rehabilitate the framework of its incestuous relationship with colonialism, slavery, and genocide, it remains prejudiced and prejudicial, both aetiologically and epistemologically.
4- International law is violence
To study international law is to study violence and its legalisation. That violence is widely excluded from legal textbooks is down to Eurocentrism and continued European denial of the barbarism of European behaviour, both historically and contemporaneously.
A facile example is the famed Century of Peace or Pax Britannica. Coinciding with the first period of globalisation, this period stands out in European history for the curtailment of Catholic-Protestant warring. Europeans achieved a compromise that lasted until the first Great European War of the 20th century. Most telling is not the supposed peaceful relations but the self-centredness of the narrative.
Consider that the century of peace occurred while Europe was rampaging across other continents, visiting war and savagery upon the rest of the world. During this same period, they orchestrated colonisation and famines in South Asia; colonisation, enslavement, and genocide in Africa; blockades, counter-revolutions, and exploitation in the Caribbean and the Americas at large. Even the Opium Wars took place during the Century of Peace. Vitoria, Grotius, and Vattel each crafted European international law to legitimise the varying rounds of violence visited upon the rest of the world.
It bears mentioning that, despite its depravity, none of these were episodes of random violence. Following the edicts of jus gentium, Europeans carried out their barbarism to gain access to the markets and resources of others, as the logic of capital commands. To dismiss the violence of international law is to dismiss international legal history in its totality.
With these premises in hand, we move to the second half of this essay, where I explain why money and misery are essential analytic concepts in the study of international law.
First, while the early days of international law were informed by the desire of European monarchs to plunder others, its later stages were shaped principally by capitalist extraction. As highlighted above, capitalism centres the private accumulation of wealth. It also centres the market in the allocation of scarce resources. Both characteristics are manifest within international law, producing what Sornarajah terms a market-based international law.
In Plunder, Mattei and Nader argue that despite the idealistic pomp that hovers around the Rule of Law, it exists to formalise two rights: property and contract. Equality before the law begins and ends with these rights. Rule of Law projects promoted by the American Bar Association, the European Commission, and the IFIs are similarly bookended. Both rights intertwine with a liberal conception of liberty that amplifies individual desire and choice as guiding precepts in social organisation: we must be permitted to acquire what we want so long as we can afford it. To paraphrase Michael Sandel, what can’t money buy?
The intimate relationship between property and international law dates back to the days of Vitoria. During the colonial period, it was common for settler-colonialists to register and parcel indigenous lands. Titles were thereafter distributed to members of local tribes before being bought back by the same colonisers, a clever mechanism for acquiring legal title over the lands of others and extinguishing any future claims by Indigenous peoples. This practice was systematically deployed across settler-colonial states, even those widely regarded as progressive such as Canada and New Zealand. And I do not have sufficient time to examine the absolute conception of proprietary rights embedded within the transatlantic slave trade.
Building on this perverse premise, the IFIs demand that Third World states establish a Rule of Law compliant framework before they will permit any loans. Fuzzy norms such as democracy, equality, and welfare are not determinative in their representation of the Rule of Law. Rather, they must commit to a regime of private property rights. So central is this standpoint that IFIs and states often demand the dismantling of any systems that might conflict with private ownership. State-owned-enterprises are the obvious one, yet collective forms of land tenure also fall afoul. Included in the North American Free Trade Agreement, for example, was a commitment of the Mexican state to limit the use of the ejido, a system of peasant land ownership. So too must postcolonies forego programmes of land redistribution, irrespective of the brutal conditions that facilitated the acquisition of title over the lands of others by European settlers.
The universalisation of a system of private accumulation of wealth and its hoarding by Europeans was made possible through the trinity of colonialism, capitalism, and international law. To teach international law thus demands in-depth engagement with political economy or, in simpler terms, with money.
Second, due to the alienation, dispossession, and exploitation that are intrinsic to capitalist modes of production, compliance with IEL invariably leads to unequal reconfigurations in the distribution of goods. Following the prescriptions of the IFIs produces higher levels of relative poverty while concurrently reducing programmes of social welfare. Naomi Klein’s Shock Doctrine, perhaps because of its journalistic character, provides ample evidence of the ways in which crises are turned to the advantage of the affluent. The examples are too numerous to mention though I highlight, for illustrative purposes, the economic crisis precipitated by COVID-19. In 2020 alone, the world’s billionaires increased their aggregate wealth by 27.5%. It is telling that the wealthy make a killing every time economies collapse. Treat with suspicion anyone who utters the phrase we’re all in this together. As the vaccination wars verify, we never are.
Perhaps Susan Marks has gone furthest in developing exploitation as an analytic concept in legal scholarship. In one elucidative piece, she argues that exploitation is good business. Instead of treating poverty or wealth as conditions, she argues that we should conceptualise them as relationships and historical processes. In a world of scarce resources, accumulation by some demands the dispossession and exploitation of others. When teaching IEL, I speak not of poverty but of the politics, economics, and legality of impoverishment and immiseration, and the role of international law in both exacerbating and redressing them.
Linarelli, Salomon, and Sornorajah are similarly minded. They speak of international law’s sleight of hand, where distractions are deployed to disguise the misery it instigates. For example, international law is built on fabricated categories. Notice the inane separation of the economic and non-economic realms. Scholars compose entire textbooks on international law that exclude references to the economic, just as their colleagues in IEL produce their own textbooks that make nary a mention of justice or poverty, let alone injustice and impoverishment.
In this way, an inside-outside distinction, perhaps dichotomy emerges. We learn that issues of justice, distribution, access to essential goods are situated inside the state. By contrast, economics are best regulated by IFIs and a cadre of private dispute resolution experts—mediators and arbitrators—all of whom operate beyond the state. It is a clever tactic. To participate in the global economy, states must surrender authority over their economies to the diktats of IFIs. For their part, IFIs must refrain from commenting on the political or moral preferences of nation-states, lest we accuse them of trespassing over national sovereignty. The end result is that what happens outside the state is not subject to any moral demands beyond the sanctity of property and contract (and debt).
Neither misery nor poverty are analytical categories in international law. For that matter, neither is money. Yet, international law is shaped by an economic project which, at its core, legalises the private accumulation of wealth. In a world beset with scarcity and inequality, accumulation is not benign. As some accumulate more, less is available for everyone else, producing much misery for those who are incapable of leveraging market power to their advantage. That is the logic of capital and markets and, by extension, it is also the logic of international law.
To understand international law demands engagement with these analytic concepts. When assessing international treaties or ICJ rulings (and non-rulings), when examining the International Law Commission’s proposals for reform, I always begin with two questions: where’s the money and who will this immiserate? I encourage you to try it out though, be forewarned: your perception of international law may not recover.
The preceding reflections are based on a talk I delivered at UNAM, as part of their annual Critica Juridica conference. You can watch my presentation as well as that of the other panelists here (my talk begins around 41:00).