Reframing the "universality" of international law in a globalizing world.

• Author: al Attar, Mohsen

In this essay, I highlight the historical use of notions of universality and objectivity in international law to advance First World economic interests, primarily through the codification of conditions that sustain ongoing Third World dispossession. I argue that these interests have taken on a transnational character and are being pursued through an elaborate network of meta-regulatory regimes beneficial to an emergent transnational capitalist class. These regimes are used to diffuse neoliberal economic reform on a global scale, resulting in the embedding of various neoliberal precepts both in legal machinery and in social meaning. Finally, I suggest that while instances of resistance are observable, critical international legal jurists appear ambivalent in their efforts at crafting proposals for reform of the global legal order. While some champion a type of global legal pluralism that would recognize the legitimacy of lawmaking as executed by non-institutional actors, many remain perplexed as to how we might reconcile the pursuit of a universally and objectively just order in a pluralist, subjective, and highly stratified world. I conclude by applying Nancy Fraser's "political dimension of justice" to conceptualize and structure more representative participatory transnational lawmaking processes, the kind that would promote both parity of participation and actor subjectivity, and possibly further the cause of global justice.

Dans cet article je souligne l'utilisation historique des notions d'umversalite et d'objectivite en droit international pour avancer les interets economiques du >, principalement a travers la codification de conditions qui assurent la depossession continue du tiers monde. J'avance que ces interets sont desormais transnationaux et sont poursuivis grace a ma reseau elabore de regimes meta-reglementaires qui beneficie a une classe capitaliste transnationale emergente. Ces regimes sont utilises pour repandre une reforme economique neoliberale a echelle mondiale, menant a l'enchassement de divers preceptes neoliberaux dans l'appareil juridique et dans la signification sociale. Enfin, je suggere que malgre des exemples de resistance a ce courant, les juristes internationaux critiques semblent contradictoires dans leurs efforts pour proposes des reformes de l'ordre juridique mondial. Bien que certains defendent une forme de pluralisme juridique mondial recounaissant la legitimite de la legislation par des agents non-institutionnels, plusieurs restent deconcertes quant a la facon dont on pourrait reconcilier la poursuite d'un ordre universellement et objectivement juste dans un monde pluraliste, subjectif et extremement stratifie. Je termine en appliquant la > de Nancy Fraser pour conceptualiser et structurer des processus legislatifs transnationaux participatifs plus representatifs, d'une forme qui favoriserait a la fois la parite de participation et la subjectivite des agents et qui pourrait possiblement avancer la cause de la justice mondiale.

Introduction I. The Neoliberal Reversal: Argentina and the Return of Peronism II. Embedded Neoliberalism A. Ideology to Law and Back Again B. International Law as Regulation, Oppression, and Emancipation C. Neohberalism and the Recolonization of the Third World III. A Crisis of Modernity A. Cultural Difference and the Celebration of Objectivity B. Meta-Regulation and the Diffusion of Norms C. A Pattern of Continuity: Transforming the Third World IV. International Law: A Case for Universal Subjectivity? A. The Objectivity of Third World Dispossession B. Theorizing Global Legal Phuralism V. Effective Resistance--Effective Subjectivity A. Dimensions of Justice B. Process as Path to Equivalent Subjectivity 1. Procedural Scaffolding 2. Subjective Lawmaking as a Path to Mutual Construction Conclusion: A Procrustean Bed? Introduction

This article is the fifth and final segment in a quintet on the foundational structures of international law. Inspired by the writings of third world approaches to international law scholars such as Bhupinder Chimni, Antony Anghie, Vasuki Nesiah, and James Gathii, I have sought to explore whether an alternative narrative of international law--more contemporary than historical--might aid in furthering a reconfiguration of the unjust order that mediates legal relations between the First and Third World. (1) A reconfiguration is needed for, to the Third World, modernity is discernible by what Edward Said identified as a "general European effort to rule distant lands and peoples," a pursuit that has severely impeded non-European peoples' practice of autonomy and self-determination. (2) While resistance to European efforts has been quick to materialize and frequently successful, the international legal order played (plays) a vital role in helping to propagate "a modern, aggressive, mercantile, and brutalizing urban existence." (3) With this less-than-virtuous narrative as touchstone, of particular concern throughout this quintet have been the dehumanizing trappings of the international legal regime, specifically colonialism's "enduring effects on the contemporary international system." (4) Of no less--and perhaps even of greater--interest has been the elaboration of processes via which these trappings could be challenged and ultimately rehabilitated.

To this end, in the first part of the quintet, I contrasted mainstream and critical representations of international law in legal academia. (5) My aim was to gauge whether a type of ideological imperialism--originating from both within and without legal academia--was curtailing reformative efforts by training future jurists to tolerate an inequitable status quo, itself compounded by an unjust international regulatory framework. A reviewer's question, "What is the alternative?" (presumably other than the use of alternate texts and alternate pedagogical methods amply detailed in the article), precipitated the second chapter in which I highlighted the mechanisms underpinning an emergent regional trading bloc operating outside the confines of the World Trade Organization (WTO). (6) The Bolivarian Alliance of the Americas (ALBA) uses concepts such as equity and complementarity to guide treaty negotiations and to buttress the key policy aim of raising collective living standards across member states. While I established that incompatibilities between the normative aspirations of populations and those of the managerial cadre of the WTO precipitated the pursuit of a creative approach toward multilateral collaboration-trade-in-kind as exemplified by the ALBA--I felt that a genuine alternative, to paraphrase Clifford Geertz, needed to go beyond machinery and propose a transformative meaning. (7)

This led to the third segment where I considered conceptions of freedom as they originated within a transnational peasant movement and a transnational capitalist class, respectively. (8) My intent was to determine whether international law proposes a model of freedom or seeks to facilitate organic types of self-actualization. In this instance, the conclusion-perhaps unfortunate and perhaps not--was that international legal representations of freedom are in fact quite rigid, imposing through the influence of international law a particular understanding upon just about everyone. The privileging of one meaning over many others, often codified as a result of the influence (and crudeness) of class privilege, prevents any progressive dialogue between diverse groups, as a single position is presented as the correct or even scientific one.

Rather than surrender to nihilistic realpolitik, I next sought to employ a methodology that might facilitate the valuation of contributions emanating from heterogeneous groups. (9) Applying legal pluralism and democratic considerations, I argued that we might conceptualize a more inclusive transnational lawmaking process. Despite its remarkably protracted history as a tool of colonial power, the rule of law can be useful in supporting structural transformations that would value the activities of peripheral states and social movements. More idealistic than prescriptive, the conclusion to the fourth article--that the interplay between normative communities would strengthen international legal legitimacy--fell flat.

This concluding segment is my final attempt to bring together meaning and machinery and to make sense of this meandering excursion. I begin by drawing attention to the historical use of notions of universality and objectivity in international law and to the less-than-coincidental privileging of First World economic interests that consistently ensues. Next, I argue that these interests have transcended the Westphalian frame and now inhabit an abstract, through increasingly textured, transnational plane. Through a network of meta-regulatory regimes, a programme of neoliberal economic reform is diffused on a global scale, resulting in the embedding of various neoliberal precepts in both legal machinery and social meaning. These precepts include a retreat of the state from a range of distributional activities and a surrender of domestic authority to unaccountable and undemocratic transnational institutions.

This article's point of novelty appears in its second half. Following a brief examination of the ambivalence of critical scholars toward resistance in international law and an equally pithy foray into legal pluralism, I propose the use of Nancy Fraser's third dimension of justice-representation--as a means of overcoming the disenfranchisement of Third World peoples that is emblematic of legal transnationalism. Rather than perpetuate the illusion of universality in international law, I suggest that a more fruitful approach would be to adopt an ethos of justice (meaning)--parity of participation--and then to establish rules (machinery) that facilitate popular and democratic engagement. This approach, I argue, would allow subjectivities to collide in a...