McGill Law Journal Revue de droit de McGill
REFRAMING THE UNIVERSALITY OF
INTERNATIONAL LAW IN A GLOBALIZING WORLD
Mohsen al Attar*
In this essay, I highlight the historical use
of notions of universality and objectivity in in-
ternational law to advance First World econom-
ic 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 be-
ing pursued through an elaborate network of
meta-regulatory regimes beneficial to an emer-
gent transnational capitalist class. These re-
gimes are used to diffuse neoliberal economic
reform on a global scale, resulting in the em-
bedding 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 plu-
ralism that would recognize the legitimacy of
lawmaking as executed by non-institutional ac-
tors, 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 apply-
ing Nancy Frasers political dimension of jus-
tice to conceptualize and structure more repre-
sentative participatory transnational lawmak-
ing 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 lutilisation his-
torique des notions duniversalit et dobjectivit
en droit international pour avancer les intrts
conomiques du premier monde , principale-
ment travers la codification de conditions qui as-
surent la dpossession continue du tiers monde.
Javance que ces intrts sont dsormais transna-
tionaux et sont poursuivis grce un rseau la-
bor de rgimes mta-rglementaires qui bnficie
une classe capitaliste transnationale mergente.
Ces rgimes sont utiliss pour rpandre une r-
forme conomique nolibrale chelle mondiale,
menant lenchssement de divers prceptes no-
libraux dans lappareil juridique et dans la signi-
fication sociale. Enfin, je suggre que malgr des
exemples de rsistance ce courant, les juristes
internationaux critiques semblent contradictoires
dans leurs efforts pour proposes des rformes de
lordre juridique mondial. Bien que certains dfen-
dent une forme de pluralisme juridique mondial
reconnaissant la lgitimit de la lgislation par
des agents non-institutionnels, plusieurs restent
dconcerts quant la faon dont on pourrait r-
concilier la poursuite dun ordre universellement
et objectivement juste dans un monde pluraliste,
subjectif et extrmement stratifi. Je termine en
appliquant la dimension politique de la justice
de Nancy Fraser pour conceptualiser et structurer
des processus lgislatifs transnationaux participa-
tifs plus reprsentatifs, dune forme qui favorise-
rait la fois la parit de participation et la subjec-
tivit des agents et qui pourrait possiblement
avancer la cause de la justice mondiale.
* Dr Mohsen al Attar is a Senior Lecturer at Queens University Belfast and a Visiting
Professor at McGill University. He wishes to thank the editorial board at the McGill
Law Journal for their support. Mohsen is always on the lookout for individuals with
whom to collaborate on projects related to these ideas and many others. He welcomes
contact from colleagues equally curious about the ability of international law to make
the world a little more liveable. He can be reached at m.alattar@qub.ac.uk.
Citation: (2013) 59:1 McGill LJ 95 Rfrence : (2013) 59 : 1 RD McGill 95
Mohsen al Attar 2013
(2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
96
Introduction
I.
II.
III.
IV.
V.
The Neoliberal Reversal: Argentina and the Return
of Peronism
Embedded Neoliberalism
A. Ideology to Law and Back Again
B. International Law as Regulation, Oppression,
and Emancipation
C. Neoliberalism and the Recolonization of the
Third World
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
International Law: A Case for Universal Subjectivity?
A. The Objectivity of Third World Dispossession
B. Theorizing Global Legal Pluralism
Effective ResistanceEffective Subjectivity
A. Dimensions of Justice
B. Process as Path to Equivalent Subjectivity
2. Subjective Lawmaking as a Path to Mutual
1. Procedural Scaffolding
Construction
Conclusion: A Procrustean Bed?
97
99
104
104
106
108
110
110
113
116
118
118
122
126
126
128
129
133
137
97
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW
Introduction
This article is the fifth and final segment in a quintet on the founda-
tional 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 lawmore
contemporary than historicalmight 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, moder-
nity is discernible by what Edward Said identified as a general European
effort to rule distant lands and peoples, a pursuit that has severely im-
peded 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, mercan-
tile, and brutalizing urban existence.3 With this less-than-virtuous narra-
tive as touchstone, of particular concern throughout this quintet have
been the dehumanizing trappings of the international legal regime, specif-
ically colonialisms enduring effects on the contemporary international
system.4 Of no lessand perhaps even of greaterinterest 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 imperialismoriginating
from both within and without legal academiawas curtailing reformative
efforts by training future jurists to tolerate an inequitable status quo, it-
self compounded by an unjust international regulatory framework. A re-
viewers 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
1 Obiora Chinedu Okafor articulates useful a definition of Third World as a position
chosen by peoples and scholars: Newness, Imperialism, and International Legal Re-
form in Our Time: A TWAIL Perspective (2005) 43:1 Osgoode Hall LJ 171 at 17475.
2 Edward W Said, Culture and Imperialism (New York: Knopf, 1993) at xi [Said, Culture
and Imperialism].
3 Ibid at xiii.
4 Antony Anghie, The Evolution of International Law: Colonial and Postcolonial Reali-
ties (2006) 27:5 Third World Quarterly 739 at 739 [Anghie, Evolution].
5 Mohsen al Attar & Vernon Tava, TWAIL Pedagogy: Legal Education for Emancipa-
tion (2009) XV The Palestine Yearbook of International Law 7.
(2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
98
outside the confines of the World Trade Organization (WTO).6 The Boli-
varian Alliance of the Americas (ALBA) uses concepts such as equity and
complementarity to guide treaty negotiations and to buttress the key poli-
cy 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 ALBAI felt that a genuine alterna-
tive, 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 free-
dom 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 facili-
tate organic types of self-actualization. In this instance, the conclusion
perhaps unfortunate and perhaps notwas that international legal rep-
resentations of freedom are in fact quite rigid, imposing through the in-
fluence 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 pre-
sented 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 emanat-
ing 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 his-
tory 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 con-
clusion to the fourth articlethat the interplay between normative com-
munities would strengthen international legal legitimacyfell flat.
6 Mohsen al Attar & Rosalie Miller, Towards an Emancipatory International Law: The
Bolivarian Reconstruction (2010) 31:3 Third World Quarterly 347.
7 Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (New
York: Basic, 1983) at 232.
8 Mohsen al Attar, The Transnational Peasant Movement: Legalising Freedom from
Want (2010) 8 New Zealand Yearbook of International Law 107.
9 Mohsen al Attar & Rebekah Thompson, How the Multi-Level Democratisation of In-
ternational Law-Making Can Effect Popular Aspirations Towards Self-Determination
(2011) 3:1 Trade, Law and Development 65.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW
99
This concluding segment is my final attempt to bring together mean-
ing 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 priv-
ileging 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 so-
cial meaning. These precepts include a retreat of the state from a range of
distributional activities and a surrender of domestic authority to unac-
countable and undemocratic transnational institutions.
This articles 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 pro-
pose
justice
representationas 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 (mean-
ing)parity of participationand then to establish rules (machinery) that
facilitate popular and democratic engagement. This approach, I argue,
would allow subjectivities to collide in a structured environment, thus fa-
cilitating what Stephen Holmes describes as authentic collective rationali-
ty and self-correction, or, as the five segments have led me to conclude, to
reconfigure international lawmaking processes to enable the pursuit of
both collective self-determination and individual self-actualization.10 Stat-
ed otherwise, and perhaps idealistically yet again, reforming both norms
and processes is critical if a more just international legal order is to be
achieved.
the use of Nancy Frasers
third dimension of
I. The Neoliberal Reversal: Argentina and the Return of Peronism
In May 2012, the Argentinian government renationalized the oil and
gas company YPF (of which Spanish energy giant Repsol owned a majori-
ty of shares).11 The decision was made because of YPFs alleged failure to
maintain production levels commensurate with Argentinas economic
growth, leading to a rise in oil imports and a corresponding decline in for-
10 Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy (Chica-
go: University of Chicago Press, 1995) ch 6 at 181, 20001.
11 See Hugh Bronstein, Argentina nationalizes oil company YPF Reuters (4 May 2012),
online:
100 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
eign currency reserves. To address YPFs failings, Argentina reassumed a
controlling interest in the oil company.
This decision, of course, runs counter to the dominant economic ideol-
ogy of the last three decadesneoliberalismand has generated much ire
from free-market fundamentalists. Pierpaol Barbieri, a fellow at Har-
vards Kennedy School of Government, decries the Argentinian move as
an act of economic folly that is likely to exacerbate falling competitive-
ness, rampant corruption, and [the further] collapse of productive invest-
ment.12 Daniel Altman, of the Stern School of Business at New York Uni-
versity, described both the act and the Argentinian government as self-
destructive.13 And Mriam Leito, identified by the New York Times as
one of Brazils most influential columnists on economic issues, echoes
both Barbieri and Altman, lambasting the government in its totality
Argentinas capacity to err seems unlimited14for its decade of failed
policies.15
The vitriol, more akin to the response one would expect from disciples
than from academics and pundits, seems grossly out of step with the con-
text in which the decision is being made. Recall the Argentinian economic
crisis (19982002) and its strong correlation with the blanket implemen-
tation of the Washington Consensus as backed by the international finan-
cial institutions. This crisis triggered a bout of national introspection, re-
sulting in an overall reversal of neoliberal policies beginning with the de-
cision to default on Argentinas debt and forego crippling and unsustaina-
ble dollar parity. The decade Leito derides has been marked by consider-
able expansion in social spendingin real terms, a near trebling of pre-
crisis levels16including inter alia increases in social security payments,
unemployment stipends, and industrial subsidies.
Deducing from their most recent pronouncements, it would not be un-
reasonable to presume similar condemnatory effusions from the likes of
Barbieri, Altman, and Leito in response to this catalogue of contra-
neoliberal policy choices; Argentinas capacity to err is surely bringing
its economy to the brink of collapse. Yet, upon closer examination, and
12 Pierpaolo Barbieri, The Tragedy of Argentina The Wall Street Journal (20 April 2012),
online:
13 Simon Romero, In Brazil and Elsewhere, Dismay at Argentinas Nationalization Move
The New York Times (18 April 2012), online:
14 Ibid.
15 Others are more charitable. NYU economist Nouriel Roubini praised the move and is
urging Greece to follow suit (Nouriel Roubini, Greeces Best Option is an Orderly De-
fault The Financial Times (28 June 2010), online:
16 See Mark Weisbrot et al, The Argentine Success Story and its Implications (2011) at 1,
online: The Centre for Economic Policy Research
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 101
even despite the absence of loans from financial markets or substantial
foreign direct investment, the decade appears much less the disaster the
pundits contend.
From 2002 to 2011, the Argentine economy grew by 94 per cent, with
benefits accruing to a wide cross-section of society.17 Moreover, virtually
every social indicator, including poverty, unemployment, health, and in-
come inequality, has exhibited significant improvement, harkening to the
immense social progress made during the reign of Juan Pern. Ameliora-
tion in this final marker is most staggering and deserves singling out: in
just ten years, the share of income of the wealthiest 5 per cent of earners
fell from thirty-two to seventeen times the share of the remaining 95 per
cent of the population, effectively dispersing purchasing power over a
wider cross-section of society.18 Mark Weisbrot credits the miracle to the
increase in social spending implemented by the Argentinian statefrom
10.3 per cent to 14.2 per cent of GDP19a policy at odds with the demands
of the international financial institutions and antithetical to the austerity
packages being unravelled across Europe today to deal with the implosion
of numerous continental economies. Labelling policies that distribute in-
come more equitably and improve general well-being for the bulk of a
people economic folly appears, in a democratic society at least, a little
peculiar.
Moreover, setting aside the micro specificities of the Argentinian con-
dition and examining the matter through a macro lens, we find a world
writhing in the clutches of a global recession, owing in no small part to
failed neoliberal policies such as the ones that prompted the Argentinian
volte-face including YPFs privatization.20 The evidence would be impres-
sive were it not so dismal. During part of the neoliberal era (19802000),
per capita income across the Latin American region grew by 5.7 per cent.
Contrast this figure with the 91 per cent growth measured during a com-
parable period of the welfare era (19601980).21 When we factor in the be-
haviour of neoliberal henchmen such as Pinochet of Chile and the gener-
als of Argentina, or technocrats and insiders such as Lehman Brothers,
Goldman Sachs, CitiGroup, and sundry financiersboth during the Ar-
17 Ibid at 3.
18 Ibid at 8.
19 Ibid at 10.
20 See David Harvey, A Brief History of Neoliberalism (Oxford: Oxford University Press,
2005) at 152156 [Harvey, Neoliberalism].
21 See Mark Weisbrot & Rebecca Ray, The Scorecard on Development, 19602010: Clos-
ing the Gap? (2011) United Nations Department of Economic and Social Affairs Work-
ing Paper no 106 at 7, online:
102 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
gentinian economic collapse and the subsequent global recession
Barbieris claim of rampant corruption also rings rather queer.
It is worth noting that the partisan blowback was to be expected, for
the Argentinian decision was not an isolated act of self-destruction on the
South American continent; similar scorn was heaped on other defiant
states. Indeed, while the Financial Post may wish to assuage investors
fears with reassuring pronouncementsthe risk of similar nationaliza-
tion proposals elsewhere in the developing world is likely to be lim-
ited22the verdict seems flawed, for evidence suggests that Argentina is
not the source of the contagion but rather a willing victim. In 2003, for in-
stance, Venezuela launched a quasi-renationalization programme of its
own state oil company, reasserting governmental authority over what had
become an autonomously acting Petroleos de Venezuela.23 Shortly thereaf-
ter, following the election of Evo Morales, Bolivia claimed sovereignty
over its natural gas reserves. As per the Bolivian decree: [I]n historical
struggles, the people have conquered and paid with their blood, the right
to return our natural resources and our wealth in natural gas to the
hands of the nation and to be utilized to the benefit of the country.24
It is equally unsurprising that these contra-neoliberal and contra-
universal developments would occur on the South American continent.
Throughout its spirited history, Latin America has been a vanguard in
both legal and democratic innovation. For instance, as early as the nine-
teenth century, Latin American nations such as Venezuela and Argentina
sought to (re)shape the rules of international economic governance to ac-
count for the disparity in power that coloured the earliest manifestations
of modern international relations. Luis Drago, the former Venezuelan sec-
retary of foreign affairs, conceived a legal doctrine that would preclude
states from engaging in the forcible collection of debt: [P]ublic debt can-
not give rise to armed intervention or even to the material occupation of
the soil of American nations by a European power.25 Reforming the in-
ternational legal regime beyond its European origins was essential in re-
flecting an increasingly post-colonial world.26 For Drago, if Latin Ameri-
22 David Pett, Argentina Nationalization Plans Not Contagious The Financial Post (17
April 2012), online:
23 See Gregory Wilpert, The Economics, Culture, and Politics of Oil in Venezuela
Venezeuela Analysis (30 August 2003), online:
24 Cited in Walter Mignolo, Beyond Populism: Decolonizing the Economy Counterpunch
(9 May 2006), online:
25 Luis M Drago, State Loans in Their Relation to International Policy (1907) 1:3 Am J
Intl L 692 at 709.
26 See Arnulf Becker Lorca, Universal International Law: Nineteenth-Century Histories
of Imposition and Appropriation (2010) 51:2 Harv Intl LJ 475 at 476.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 103
can sovereignty was to be on par with that of its European counterparts,
its subjectivity must be written into the framework.
Drago was member of a new cadre of what Arnulf Lorca termed semi-
peripheral jurists. This group was comprised of non-Western interna-
tional lawyers who strategically internalized the European international
law in circulation at the time, appropriating and rejecting elements ac-
cording to national and regional interest. These jurists pursued a distinc-
tively non-European interpretation of the classical European law of na-
tions, in which they re-signified and redeployed its fundamental elements
… to advocate for a change in extant rules of international law.27 Positiv-
ism, formalism, and deductive reasoning, perspectives and tools often
dismissed as reactionary, were championed by post-colonial jurists to
achieve two mutually inclusive objectives: to bolster Latin American sov-
ereignty and to counter the argumentative plasticity of natural law that
was frequently drawn upon by Europe to rationalize intervention.28
Nor did it end there. Similar reformative efforts, directed toward the
structuring of a genuinely universal international law, were observable in
the postWorld War II period. During the negotiations for a global human
rights standard, Panamas Joaquin Alfaro, with the support of much of
the Latin American continent, pursued a comprehensive model of human
rights that acknowledged economic, cultural, and social rights relating to
education, health, and labour alongside the more reputed civil and politi-
cal rights favoured by Euro-American governments. Indeed, following rat-
ification of the Universal Declaration of Human Rights, Alfaro sought the
codification of a single covenant. Emerging from a colonial period in which
masses of Third World peoples were dispossessed of their resources and
wealth, he saw the indivisibility and interdependence of all rights as self-
evident. As history affirms, the Latin American position was subordinated
and two distinct covenants formalized.29
Fast-forward another half century, and we witness a wave of original
participatory formats such as participatory budgeting, different sorts of
citizens councils, oversight boards, participatory urban planning, neigh-
borhood committees, and public audiences occurring, once again, in
South America.30 Many of these initiatives are tied to national instances
27 Ibid at 48283.
28 Ibid at 489.
29 See Micheline R Ishay, The History of Human Rights: From Ancient Times to the Glob-
alization Era (Berkeley: University of California Press, 2004) at 223. The second cove-
nant was the International Covenant on Economic, Social and Cultural Rights, 16 De-
cember 1966, 993 UNTS 3, 6 ILM 360.
30 Enrique Peruzzotti, Broadening the Notion of Democratic Accountability: Participatory
Innovation in Latin America (2012) 44:4 Polity 625 at 636.
104 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
of constitutional reform, while others have their source in the Bolivarian
Alliances of the Americas and the Union of South American Nations, two
regional integration projects that, in addition to cementing trade ties
across the continent, seek to disperse governing authority more widely,
empowering citizens and social organizations. In contrast with the efforts
of Drago, Alfaro, and others, what is most compelling about the latest ini-
tiatives is the shift away from the pursuit of genuine universalism. In
each of these instances, whether at the local, national, or regional level,
while pursuing regulatory harmonization, they emphasize the subjective
preferences of communities, preferences to be identified through more
public and deliberative formats of policy setting.31
As explored throughout the remainder of this article, the promotion of
subjectivity and public participation in international lawmaking are lead-
ing away from privatization, neoliberalism, and, critically for my argu-
ment, universalism. Indeed, the latest efforts, whether materializing in
Argentina or beyond, underscore not only a crisis unfolding among hydro-
carbon investors but also a general malaise emerging within international
law. In the following section, I explore this malaiseand potential re-
nouvellementthrough the prism of neoliberalism and its growing dis-
placement.
II. Embedded Neoliberalism
A. Ideology to Law and Back Again
Since the late eighties, international law has experienced an existen-
tial shift. An emergent form of legal institutionalismtransnational
lawhas developed, largely to overcome both political and social barriers
to commodity and capital mobility. Indeed, in the era of accelerated glob-
alization, capitalist momentum is pressing world society toward the estab-
lishment of a unitary legal order, one characterized by a corpus of meta-
regulatory regimes or supranational regulatory structures that, more and
more, supersede national authority.32 Combined, these regimes are shap-
ing a transnational legal apparatus governed by seemingly autonomous
legal norms.
This new legal orderwhether illustrated by the agreements of the
WTO or the actions of international financial institutionshas forcefully
acted as a channel for the dispersal of neoliberal diktat. Through the ef-
forts of these bodies, a trifecta of privatization, liberalization, and deregu-
31 See ibid at 640.
32 See Bronwen Morgan, The Economization of Politics: Meta-Regulation as a Form of
Nonjudicial Legality (2003) 12:4 Soc & Leg Stud 489 at 491.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 105
lation was launched (unleashed) globally as an alleged panacea for recur-
ring economic crises and persistent Third World underdevelopment. Tell-
ingly, the variable structural causes underpinning both syndromes
whether inflationary and deflationary pressures, unfavourable terms of
trade, or unfair distribution/production networkswere casually avoided.
No longer were economic decisions to be situated within the wider social
sphere and made according to public impetuses, identified through demo-
cratic guidance; being overly subjective, public opinion was too tempera-
mental. Instead, a scientific economic programme was implemented to
develop objective economic principles and legal mechanisms, not to men-
tion pathways of accumulation and distribution. Striking at the heart of
the postwar welfare state, neoliberalism was used to dislodge capital from
its active role in the social and moral economies of state planning, allow-
ing it to hover unrestrainedbenignlyover nation-states.33
Both neoliberalism and global regulatory standardization are motivat-
ed by a drive for economic efficiency, a drive which aims to sideline non-
conforming and idiosyncratic ways of connecting to the physical world.
This framework seeks to induce particular reifications of social lifesuch
as the renegotiation of public and private proprietary spheresand to
standardize them globally, prompting Bhupinder Chimni to describe
transnational law as a groundwork for the materialization of a global
state.34 Emanating from First World minds and institutions, this frame-
work placed emphasis on persuading Third World nations to adopt neolib-
eral normative priorities. The role of development banks and internation-
al financial institutions in pushing neoliberalism, largely by way of condi-
tional financial aidincluding the now-notorious structural adjustment
programmesand take-it-or-leave-it transnational legal agreements is
well documented.35 Trubek, for instance, makes the case that Third World
nations consented to neoliberal reforms, competing to surrender authority
over national resources in the hope of eliciting some of capitals largesse.36
Drahos and Braithwaite, for their part, demonstrate the collusion be-
tween transnational corporations and their First World patrons in exploit-
ing intellectual property agreements to preserve their economic ascendan-
33 See Harvey, Neoliberalism, supra note 20 at 11.
34 BS Chimni, International Institutions Today: An Imperial Global State in the Making
(2004) 15:1 EJIL 1 at 1 [Chimni, International Institutions].
35 See David P Fidler, A Kinder, Gentler System of Capitulations? International Law,
Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization
(2000) 35:3 Texas Intl LJ 387.
36 David M Trubek The Rule of Law in Development Assistance: Past, Present, and Fu-
ture in David M Trubek & Alvaro Santos, eds, The New Law and Economic Develop-
ment: A Critical Appraisal (Cambridge: Cambridge University Press, 2006) 74 at 82.
106 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
cy, often at the expense of Third World development.37 Of course, others
such as Barbieri and Leito seem to have simply been swayed.
Both coercion and stealth were necessary, for the objectivity of neolib-
eral science ran counter to the subjectivity of emancipatory aspirations.
Indeed, neoliberal proposals were antithetical to a host of projects
launched across the Third World during the decolonization era. Nationali-
zation programmes, for instance, were favoured by Third World nations
as an important means of redressing what Gathii terms the legacy of co-
lonial disempowerment.38 At the forefront of this legacy is a garish im-
balance in both liberty and living conditions between the predominantly
raw material producing economies of the capital-importing States and
Western industrial economies.39 Part of this imbalance can be traced to
foreign ownership of key industries in the Third World, both historically
and presently, and the inevitable repatriation of profits that ensues. As
Gathii observes, foreign ownership represents a critical element in the
political economy of extraction and exploitation of [the] wealth40 of Third
World states and is emblematic of the routine disregard and subordina-
tion of non-European peoples to the interests of European powers.41
B. International Law as Regulation, Oppression, and Emancipation
Over the years, various attempts have been made to rectify these im-
balances, including the New International Economic Order (NIEO), as
partially elaborated in the (arguably defunct) Charter of Economic Rights
and Duties of States (CERDS).42 Central to the NIEO and the CERDS
were national initiatives, including policies of nationalization of foreign-
owned property and permanent sovereignty over natural resources, both
of which sought to establish local interests over local resources and to
counter the economy of extraction that hollowed out domestic aspira-
37 Peter Drahos & John Braithwaite, Hegemony Based on Knowledge: The Role of Intel-
lectual Property (2003) 21 Law in Context 204.
38 James Thuo Gathii, War, Commerce, and International Law (New York: Oxford Uni-
versity Press, 2010) at xxi [Gathii, Commerce].
39 Ibid at 160.
40 Ibid at 186.
41 Ibid at 44.
42 For an account of the NIEO along with other alternative approaches to economic gov-
ernance, see James Thuo Gathii, Third World Approaches to International Economic
Governance in Richard Falk, Balakrishnan Rajagopal & Jacqueline Stevens, eds, In-
ternational Law and the Third World: Reshaping Justice (New York: Routledge-
Cavendish, 2008) 255. See also Ruth Gordon, The Dawn of a New, New International
Economic Order? (2009) 72:4 Law & Contemp Probs 131 (explicating an updated ver-
sion of the NIEO).
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 107
tions.43 Indeed, just as it was during the decolonization period, the exer-
cise of sovereignty over natural resources occurring across South America
today is intended to promote what Argentine president Cristina Fernan-
dez de Kirchner describes as achieving energy self-sufficiency … to sus-
tain growth, employment and economic activity,44 or, simply put, collec-
tive emancipation.
It would not be inaccurate to suggest that, in addition to dodging
transcontinental proprietary disparities, neoliberal proponents appear to
have evaded both other persistent inequalitiespolitical, economic, and
technicalthat continued to characterize First to Third World relations
and the impact that a liberalizing model was likely to produce for domi-
nated states. Neoliberalism is a model of economic relations designed to
encourage greater involvement of private actors in most facets of societal
governance.45 By shifting public goods to the private sector, corporations
are delegated the responsibility of ensuring the availability, though not
the accessibility, of many of the elements upon which people depend. Me-
ta-regulatory regimes codified neoliberal edicts and circulated them
transnationally, encouraging developing states to utilize economic effi-
ciency (and all that this entails, including further reliance on First World
service providers)46 as a foundational governing precept.
This point cannot be stressed enough. While decolonization struggles
were successful in achieving political independence, they did not redress
the wealth and power inequalities established during the colonial era be-
tween Western societies and most others: This is the everyday imperial-
ism, the quotidian and mundane imperialism, that is accepted as some-
how normal.47 Nor does this appear to be happenstance. As Mattei and
Nader convincingly demonstrate, the First Worlds engagement of the
Third World has historically been characterised by a very successful
stratagem of brutal and violent extraction,48 resulting in the grossly in-
equitable distribution of wealth prevalent today. Aware of its history of
deprivation and economic vulnerability, the Third World sought to pro-
43 See Anghie, Evolution, supra note 4 at 748.
44 Argentine president signs YPF nationalization into law PressTV (5 May 2012), online:
45 See Harvey, Neoliberalism, supra note 20 at 65.
46 See Ugo Mattei & Laura Nader, Plunder: When the Rule of Law is Illegal (Malden,
Mass: Blackwell Publishing, 2008) ([e]fficiency is the powerful factor granting legiti-
macy to universal constructs such as intellectual property and to their expansion be-
yond reasonable limits at 98).
47 Anghie, Evolution, supra note 4 at 750.
48 Mattei & Nader, supra note 46 at 22.
108 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
vide the wretched of the earth49 collective access to services and oppor-
tunity for advancement, ambitious aims that formed what Vijay Prashad
dubbed the Third World project.50 The form of allocationuniversal acces-
sibilitywas inspired by the modes of valuationjustice and well-being.
In an imbalanced world, where First World corporations dominate the
global economy, the structural swing to neoliberalism was hardly benign.
The liberalization of weaker developing markets further exposed the re-
sources and assets Third World peoples were eager to protect.51 By reduc-
ing these resources to the status of basic commodities, by transforming
them into instruments of private exploitation and profit, they were made
attractive (and available) for acquisition by First World corporations and
interests:
For the controllers of the national public realms and their apologists,
an international public realm without law or justice seemed to be a
state of nature of the most exciting kind, in which the survival of the
fittest is decided by an intoxicating mixture of urbane diplomacy and
mass murder.52
Instead of the right to preserve natural resources and nationalize foreign-
owned property, transnational law compelled Third World states to grant
the usual suspects the right to appropriate domestic resources, domestic
industry, and domestic wealth.
C. Neoliberalism and the Recolonization of the Third World
As Jane Kelsey remarks, when experienced alongside the legacy of co-
lonial disempowerment, rules for the distribution of wealth and power in
favour of historically dominant Western states have become embedded
through international treaties.53 Gathii makes a similar point, arguing
that neoliberalism and its attendant institutions repackaged the inequal-
ities between capital-exporting and capital-importing States … perpetu-
at[ing] the subordinate position of these formerly colonial countries in a
manner that uncannily reflects the imbalances that characterized colonial
rule.54 Tying it to ideological elements of the international legal regime,
49 The term is Frantz Fanons: The Wretched of the Earth, translated by Richard Philcox
(New York: Grove Press, 2004).
50 See Vijay Prashad, The Darker Nations: A Peoples History of the Third World (New
York: New Press, 2007) at xvxvi.
51 See e.g. Permanent Sovereignty over Natural Resources, GA Res 1803 (XVII) UNGAOR,
17th Sess, Supp No 17, UN Doc A/5217 (1962) 15.
52 Philip Allott, The Concept of International Law (1999) 10 EJIL 31 at 35.
53 Jane Kelsey, Serving Whose Interests? The Political Economy of Trade in Services
Agreements (New York: Routledge-Cavendish, 2008) at 17.
54 Gathii, Commerce, supra note 38 at 189.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 109
Bardo Fassbender asserts that equality rooted in formalism amounted to
a de facto endorsement of the inequality upon which power disparities
were established.55 In this way, neoliberalism, transnational law, or, in ef-
fect, aspirations to universal objectivity were used to justify an indirect
grab of the tools of emancipation of Third World states, resulting in the
hollowing out of their recently acquired sovereignty and precipitating
what Chimni describes as the recolonisation of the Third World.56
Nor did it end there. Revealing its competing normativity, neoliberal-
ism specifically targeted progressive social and political settings, attrib-
uting industrial inefficiencies and economic underdevelopment to the
prevalence of universal welfare programmes in Third World states. 57
Market logic demands that all resources, knowledge, land, and labor,
wherever located, must be available for whoever is willing to pay for
them. 58 This perspective is loosely rationalized via utilitarianism
market exchanges efficiently allocate goods to those who value them
mostand libertarianismlaws that impose social obligations (e.g., taxes
that fund welfarism) infringe upon individual liberty.59
Whether valid or fallacious, a critique of these theories falls outside
the scope of this article; however, what remains relevant is the inequality
that marketization produces. Michael Sandel argues that by commodify-
ing public services, neoliberalism made money matter more: Where all
good things are bought and sold, having money makes all the difference in
the world.60 Taking Sandels critique to its logical conclusion, an impact
of the commodification of everything was the inevitable widening of ine-
quality gaps as the (in)ability to pay for basic necessities came to dictate
the very access to services and opportunity for advancement the Third
World project aimed to equalize. 61 Gaps between the First and Third
55 Bardo Fassbender, Sovereignty and Constitutionalism in International Law in Neil
Walker, ed, Sovereignty in Transition (Portland, Or: Hart, 2003) 115 at 128. For its
part, private international law allows the reconciliation of state sovereignty with extra-
territorial application, delinking economic liberalism from democratic doctrine: see A
Claire Cutler, Artifice, Ideology and Paradox: The Public/Private Distinction in Inter-
national Law (1997) 4:2 Review of International Political Economy 261 at 26364.
56 BS Chimni, Third World Approaches to International Law: A Manifesto (2006) 8 In-
ternational Community Law Review 3 at 3.
57 Mattei & Nader, supra note 46 at 43.
58 Ibid at 50.
59 See Michael J Sandel, What Money Cant Buy: The Moral Limits of Markets (London:
Allen Lane, 2012) at 29.
60 Ibid at 8.
61 Evidence of the proliferation of inequality during the neoliberal era, both in the Third
World and globally, is well documented. Robert Wade provides conclusive proof of the
profligacy of an upward trickle resulting in the upper 1 per cent of earners comman-
110 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
World in terms of economic (in)equality, technological innovation, and po-
litical influence have accelerated during the past two decades, suggesting
that global integration is not synonymous with global prosperity.62 While
something should be said of emergent middle classes in a handful of tar-
get Third World marketsIndia, China, South Africa, and Brazil, to
name the causes clbres of the neoliberal eraon the whole, indices of
human well-being point to the deterioration rather than amelioration of
actual conditions.63 The professed universal objectivity of neoliberalism
may be in tatters, but its universal aggravation of global inequality ap-
pears as steady as ever.
III. A Crisis of Modernity
A. Cultural Difference and the Celebration of Objectivity
The perseverance (and worsening) of an inequitably stratified world,
especially when considered alongside the multiplication of global wealth
over the last three decades, points to what Ashley and Walker character-
ize as a crisis of modernity.64 In international law, this crisis is manifest-
ing through the increasing schizophrenia of its ambitions. On the one
hand, European liberalism supports the ideal of self-determination; yet,
on the other, European outer-state aspirations demand ideological adher-
ence: aspirational universality borne of European subjectivity.65 As argued
above, the structural shift from international negotiations to global gov-
deering some 24 per cent of income (see Alex Izurieta, Reflections: Robert Wade on the
Global Financial Crisis (2009) 40:6 Development and Change 1153 at 1164).
62 See Peter Drahos & John Braithwaite, Information Feudalism: Who Owns The
Knowledge Economy? (London: Earthscan, 2002) at 11112 [Drahos & Braithwaite, In-
formation Feudalism].
63 To cite just one example, the 2004 report of the Food and Agriculture Organization of
the United Nations tells us that hunger has increased to 852 million gravely under-
nourished children, women and men, compared to 842 million last year, despite already
warning of a setback in the war against hunger in 2003 (Economic, Social and Cul-
tural Rights: The Right to Food: Report of the Special Rapporteur on the Right to Food,
UNESCOR, 61st Sess, UN Doc E/CN.4/2005/47 (2005) at page 2 [mimeo], cited in Rich-
ard Goulet, Food Sovereignty: A Step Forward in the Realisation of the Right to Food
(2009) 1 Law, Social Justice & Global Development Journal 1 at 2).
64 Richard Ashley & RBJ Walker, Reading Dissidence/Writing the Discipline: Crisis and
the Question of Sovereignty in International Studies in Steven C Roach, ed, Critical
Theory and International Relations (New York: Routledge, 2008) 343 at 344.
65 Edward Said makes a similar point and far more eloquently than I have: This is in ef-
fect what Americans have felt about their southern neighbors: that independence is to
be wished for them so long as it is the kind of independence we approve of. Anything
else is unacceptable and, worse, unthinkable (Culture and Imperialism, supra note 2 at
xviii).
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 111
ernance, from controlled international law to compelled transnational
law, has not only failed to redress the imbalances but actually appears to
be aggravating them.
According to Antony Anghie, the universal-particular dichotomy dates
from the genesis of the international legal framework.66 Francisco de Vito-
ria, the Catholic jurist who first conceptualized jus gentium, was smitten
with an analogous narrative of cultural difference. While the Indians may
have possessed reason, thus binding them to a universal system of natu-
ral lawbased norms, their actual cultural practices were both alien and
anachronistic to the objective framework. As a result, colonial powers re-
garded themselves as benevolent in their (violent) enforcement of these
norms that, conveniently, happened to match European subjectivity, al-
lowing them to promote the rule of law and redress Indian deviance with
the same stone.67 The crux of Anghies argument is that the origins of in-
ternational law are located in the intellectual and moral traditions of
Western Europe. Accordingly, ostensibly neutral legal standards appear
more as subjective cultural preferences that, via the objectivity of interna-
tional law, promote the erosion of non-conforming practices.
Being informed by the same professed universal objectivity, our con-
temporary international legal regime is equally driven by an ethos of
standardization, pursuing the integration of all cultures within a single
logic. Mario Prost provides a simple yet accurate sketch of universality:
[T]o say that international law is universal means that it has become ac-
cepted by, valid for and binding on all states.68 But how do we define ac-
ceptance? The cultural difference that concerned de Vitoria harkens loud-
ly to the cultural difference that informs current transnationalization ef-
forts, a difference which is rendered primarily in terms of the different
social practices and customs of each society.69 Bronwen Morgan notes, in
this instance, that universal objectivity is embodied in the single overrid-
ing logic (and culture) of the market. Specifically, market logic necessi-
tates the production of judicial regimes and legal systems that secure
credible and predictable property rights.70 Morgan bemoans not just the
embedding of a general mechanism of [global] governance in ideological-
ly unitary international institutions, but also the cascading effect this has
on social life (lives) across jurisdictions: meta-regulation functions as a
66 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cam-
bridge: Cambridge University Press, 2004) at 22 [Anghie, Imperialism].
67 Ibid at 24.
68 Mario Prost, The Concept of Unity in Public International Law (Oxford: Hart, 2012) at
35.
69 Anghie, Imperialism, supra note 66 at 29.
70 Morgan, supra note 32 at 493.
112 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
site of conflict over the ethical limits of capitalism, limits which neoliber-
alism has sought to eradicate by facilitating the transfer of market norms
into traditionally non-market spheres of society.71
The impetus behind this model, Stephen Gill observes, is the new
global economy where [t]he mobile investor [stands as] the sovereign po-
litical subject.72 William Robinson develops this same claim, arguing that
transnational capitalism has unveiled new circuits of accumulation, pri-
marily through the privatization of public assets: public spheres man-
aged by states and private spheres linked to community and family were
broken up, commodified, and transferred to capital.73 The globalization
of these economic activities was facilitated by late twentieth century tech-
nological developmentse.g., transportation, automation, computer-aided
design, and communicationwhich freed capitalism from its nation-state
moorings and enabled its transnational restructuring.74 New technologies
in global telecommunications, for instance, abrogated many of the tradi-
tional constraints that mandated local administration, easing ex-situ
management in the process.75 While commodity production and financial
exchanges continue to buttress national economies, Robinson argues that
the global integration of the productive process and the transnationaliza-
tion of these exchanges have redefine[d] the relation between production
and territoriality, between nation-states, economic institutions and social
structures.76
Just as de Vitorias aim was not merely to manage exchanges between
sovereign states but to order relations between societies belonging to …
different cultural systems,77 so too does the present global framework
seek to stamp out non-conforming practices and align them with a rede-
fined capitalist model. Again, like de Vitoria, the transgression is linked
to a clash between a deviant culture and allegedly universal (market)
norms. Partial nationalization, we are told, amounts to economic folly
while increases in social spending are positively suicidal. Many of these
71 Ibid at 49091.
72 Stephen Gill, New Constitutionalism, Democratisation and Global Political Economy
(1998) 10:1 Pacifica Review 23 at 23.
73 William I Robinson, A Theory of Global Capitalism: Production, Class, and State in a
Transnational World (Baltimore: John Hopkins University Press, 2004) at 7.
74 Ibid at 5.
75 See Robert Reich, Supercapitalism: The Transformation of Business, Democracy, and
Everyday Life (New York: Alfred A Knopf, 2007); Rawi Abdelal & Adam Segal, Has
Globalization Passed Its Peak? (2007) 86:1 Foreign Affairs 103.
76 William I Robinson & Jerry Harris, Towards a Global Ruling Class? Globalization and
the Transnational Capitalist Class (2000) 64:1 Science & Society 11 at 1617.
77 Anghie, Imperialism, supra note 66 at 28.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 113
universalizing efforts, both Robinson and Chimni conclude, are being car-
ried out by a transnational propertied bourgeoisie or a transnational capi-
talist class: the owners of the major productive resources of the world.78
This global moneyed elite is comprised of proprietors such as transnation-
al corporations, international institutions such as the International Mone-
tary Fund, and industrial trade associations such as the Intellectual
Property Alliance, all of which exhibit little in the way of national alle-
giance. Each faction is struggling toward a deeper restructuring of pro-
duction and exchange along transnational lines and the universalization
of suitable conditions for (their) private gain.
B. Meta-Regulation and the Diffusion of Norms
To this end, a key strategy of the transnational capitalist class is the
enactment of supportive regulatory measures intended to enhance the
mobility of both capital and commodities. Foremost, this class exploits its
economic power to influence the position of nation states on global regula-
tion such that a particular form of economic rationality becomes part of
the taken-for-granted ways of policymaking.79 I note, however, that meta-
regulatory structures are as much about regulating regulation as they are
about regulating non-regulationthat is, defining areas where regulation
is permissible or, to use familiar language, efficient, as well as areas
where it is not. We thus see transnational law placing a series of con-
straints upon statesincluding the GATS and TRIPSensuring con-
sistency across borders and cultures and thus lubricating the global flow
of capital.80 Through universalized market logic, even notions of sover-
eignty
reconceptualized
disaggregated81to accommodate transnationally integrated processes
of capital accumulation and global governance. For instance, Europe has
taken it upon itself to augment the criteria by which statehood is recog-
nized, demanding that new states fashion modes of governancemulti-
party democracyand modes of social regulationindividual rights
78 Robinson & Harris, supra note 76 at 22; Chimni, International Institutions, supra
self-determination
and
are
being
note 34 at 4.
79 Morgan, supra note 32 at 490.
80 See Antony Anghie, Time Present and Time Past: Globalization, International Finan-
cial Institutions, and the Third World (2000) 32:2 NYUJ Intl L & Pol 243. GATS refers
to the General Agreement on Trade in Services 1869 UNTS 300, being Annex 1B
to Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994,
1867 UNTS 154, 3 ILM 1144 (entered into force 1 January 1995) [GATS], while TRIPS
refers to the Agreement on Trade-Related Aspects of Intellectual Property Rights, Includ-
ing Trade in Counterfeit Goods, 15 April 1994, 1867 UNTS 154, 3 ILM 1197 (entered in-
to force 1 January 1995).
81 Chimni, International Institutions, supra note 34 at 17.
114 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
before assent is bequeathed.82 While this may seem laudable at first, the
prominence in these criteria of individual and foreign proprietary rights
gives pause for thought.
For the Third World, there is another element of concern with this
emergent form of global lawmaking. Having struggled to achieve (formal)
sovereignty just a few decades ago, Third World states are today com-
pelled to cede their recently acquired authority over domestic policymak-
ing. Bruno Simma makes a similar point, albeit in cheerier tones:
[T]he significance of international law has grown; it regulates more
and more fields which before were left solely to foreign policy or do-
mestic jurisdiction, like the protection of the individual, environmen-
tal concerns, or international trade. International law is dynamic,
and globalization calls for global legal solutions.83
Power is shifting to an ever-expanding network of popularly unrepre-
sentative and politically unaccountable international institutions operat-
ing at the behest of transnational capital, itself located principally outside
the Third World. With the erosion of sovereignty comes a weakening of
policy autonomy and national self-determination. Additionally, an upload-
ing of authority promotes a concentration of control that is antithetical to
the democraticand devolutionaryaspirations of freshly decolonized
states and peoples.
From this angle, and to paraphrase Clifford Geertz once again, inter-
national law appears more as movement than machinery. Indeed, both
concept and practice shift from a fixed structure to a malleable process
open to contestation: [I]nternational law [is a] process [for] articulating
political preferences into legal claims.84 Susan Sell and Aseem Prakash
provide a biting example of the interplay between special interests and in-
ternational law, describing in detail the process by which a network of in-
tellectual propertydependent corporations successfully championed a
patents = free trade + investment = economic growth formula that even-
tually became the normative building block of the TRIPS agreement.85
This network sought principally to induce Third World states to surrender
jurisdiction over intellectual property matters to a transnational forum
82 See Jure Vidmar, Democratic Statehood in International Law: The Emergence of New
States in PostCold War Practice (Oxford: Hart, 2013).
83 Bruno Simma, Universality of International Law from the Perspective of a Practition-
er (2009) 20:2 EJIL 265 at 289.
84 Martti Koskenniemi, International Law and Hegemony: A Reconfiguration (2004)
17:2 Cambridge Review of International Affairs 197 at 198 [Koskenniemi, Hegemony].
85 Susan K Sell & Aseem Prakash, Using Ideas Strategically: The Contest Between
Business and NGO Networks in Intellectual Property Rights (2004) 48:1 International
Studies Quarterly 143 at 145.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 115
operated by their First World counterparts.86 While it was hardly as influ-
ential, Sell and Prakash also describe a countervailing struggle by a social
justiceminded network, motivated by a desire for greater equity in Third
World access to much-needed pharmaceuticals.87
Short of the final (and futile) initiative, little of this is in the interest of
the Third World. Not only do the bulk of intellectual property rights rest
with corporate owners in the U.S., Europe, and Japan, but TRIPSs pri-
mary concern is the protection of intellectual property rights and not the
dissemination of information.88 This modus operandi stands in stark con-
trast to domestic legislation that seeks to balance the economic interests
of owners of intellectual property against the public interest in having ac-
cess to new knowledge.89 Commensurate with the transnationalization of
intellectual property protections has been a reduction in technology trans-
fer from North to South.90 The legislative privileging of First World corpo-
rate profit margins over Third World access to technologies and medicines
appears to be undermining prospects for improved quality of life and eco-
nomic development.
Notwithstanding the negative implications for the Third World, what
can be extrapolated from these efforts is the depth to which notions of
contestation can be useful in explaining transnational lawmaking pro-
cesses. What was once the exclusive purview of states now involves many
institutions and interest-based consortiums, manoeuvring for global law-
making authority. A platitudeinternational law cannot be detached
from the conditions of political contestation in which [it is] made91is
worth repeating, for transnational law continues to expand in a world
characterized by wide inequities in power, wealth, and technology. While
political and economic development are highly particular exercises, heavi-
ly dependent on local cultural and normative preferences as well as avail-
able natural resources, the universalizing mission of international institu-
tions and transnational legal projects dismisses, if not denies, subjectivity
86 Ibid at 154.
87 Ibid at 160.
88 Drahos argues that [u]nderneath the development ideology of intellectual property
there lies an agenda of underdevelopment. It is all about protecting the knowledge and
skills of the leaders of the pack (Drahos & Braithwaite, Information Feudalism, supra
note 62 at 12).
89 Ruth L Gana, Prospects for Developing Countries Under the TRIPs Agreement (1996)
29:4 Vand J Transnatl L 735 at 742.
90 See Sangeeta Shashikant & Martin Khor, Intellectual Property and Technology Trans-
fer Issues in the Context of Climate Change (Penang: Third World Network, 2010) at 29
30.
91 Koskenniemi, Hegemony, supra note 84 at 198.
116 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
by imposing global compliance with transnational lawmaking processes,
consistently at the behest of interests far removed from the subject states.
As highlighted above, the institutions standardizing efforts are com-
pelled by a market-informed mandate for the pursuit of economic efficien-
cy. The pursuit of efficiency, a universal norm of progress par excellence,
acts to sideline non-conforming ways of connecting to the physical world,
primarily by ascribing to them the presumptively pejorative character of
inefficiency. So authoritative has market logic become, Habermas argues,
that even the very legitimacy of a state can be drawn from it:
[T]he property order has shed its political form and been converted
into a relation of production that, it seems, can legitimate itself. The
institution of the market can be founded on the justice inherent in
the exchange of equivalents; and, for this reason, the bourgeois con-
stitutional state finds its justification in the legitimate relations of
production.92
Stated otherwise, while sovereignty originally presumed the pursuit of a
self-determined path, the modern state draws legitimacy from its embrace
of the liberal (now neoliberal) model. When considered alongside the em-
bedding of neoliberalism in transnational law, self-determination is being
made into a redundant if not anachronistic exercise.
C. A Pattern of Continuity: Transforming the Third World
Witness here the contradictory ambitions of international law and the
crisis of modernity in full spotlight. As touched on earlier, during the first
wave of colonialism, sixteenth century Europe drew upon de Vitoria and
his musings on the universal norms of jus gentium to justify its commer-
cial and acquisitive ambitions. In the nineteenth century, we observe a re-
cycling of Vitorian logic by the now reimagined, if not reconstituted, bour-
geois European constitutional state.93 For example, under the direction of
92 Jrgen Habermas, Legitimation Crisis, translated by Thomas McCarthy (Boston: Bea-
con Press, 1975) at 22. Habermas believes that constitutional democracies are unable to
cope with values conflicts. Legitimation is secured by way of normative neutralization
through apparently fair, formally rational procedures, however Habermas derides their
sidelining of the internal contradictions of capitalism:
Genuine participation of citizens in the processes of political will-formation,
that is, substantive democracy, would bring to consciousness the contra-
diction between administratively socialized production and the continued
private appropriation and use of surplus value. In order to keep this contra-
diction from being thematized, then the administrative system must be suffi-
ciently independent of legitimating will-formation (ibid at 36).
93 Emblematic of the xenophobia of the period, the following statement by Cambridge pro-
fessor of international law John Westlake reveals how international law was essential
in furthering the colonial project:
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 117
Leopold of Belgium, and with the blessings of his American, German, and
British counterparts, the African region now known as the Congo was
amalgamatedat least geographicallyinto a single state to promote
freedom of commerce in the Congo.94 The pursuit of legitimate relations
of production appeared to necessitate the stamping out of the diversity of
native communities, their modes of interaction, and their normative aspi-
rations in order to make room for the universal objectivity of the colo-
nizing mind and coffer.
A century later, this time in Iraq, we see yet again the imposition of a
self-serving economic and regulatory model by a Euro-American alliance,
ostensibly to promote a universally accepted rule of law. Of course, with
sundry pretexts for the invasion of Iraq having melted away, what re-
mains is a society refashioned along a free-market fundamentalists wish
list, including complete foreign ownership of domestic companies, a re-
gressive flat tax model, and a policy of privatization of key industries, all
of which received consent and support from a consortium of international
financial institutions. Again, the objective logic of the market was used to
justify the transformative programme, a programme which had the pre-
dictable effect of transferring Iraqi assets to foreign transnationals and
transforming the Iraqi economy into something of an idyllic bastion of
the free markets.95
The landscape of transnational law has been heavily influenced by the
seemingly unlimited success of neoliberalism. The rise of meta-regulatory
normsand the concomitant displacement (sometimes destruction) of na-
tional imperativeshas accrued legitimacy via national and transnation-
al channels, while receiving exposure through a transnational capitalist
class that favours and is favoured by their application. Meta-regulation
supplants competing approaches to regulatory policymaking and, in so do-
ing, forces notions of social welfare and well-being into a market mould
that presses human actualization into the image of implicitly capitalist
When people of European race come into contact with American or African
tribes, the prime necessity is a government under the protection of which the
former may carry on the complex life to which they have become accustomed
in their homes, which may prevent that life from being disturbed by contests
between different European powers for supremacy on the same soil, and
which may protect the natives in the enjoyment of a security and well being
at least not less than they had enjoyed before the arrival of the strangers.
Can the natives furnish such a government, or can it be looked for from the
Europeans alone? In the answer to that question lies, for international law,
the difference between civilization and the want of it (cited in Anghie, Evo-
lution, supra note 4 at 745 ×.).
94 Gathii, Commerce, supra note 38 at 205.
95 Ibid at 39.
118 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
social powers, social positions, and identities.96 When meta-norms are
used as baselines of universal objectivity, the social context they inhabit,
the political content they entail, and the material outcomes they produce
become largely superfluous.
Time and time again, European subjectivityspecifically, wants of
commercial expansion and territorial acquisitionhas been disseminated
and pursued through the international legal order of the period. Begin-
ning with Columbus voyagethere I found very many islands filled with
people innumerable, and of them all I have taken possession for their
highnesses97and carrying forward through the centuries, the legitima-
cy of European commercial pursuits has stood almost unquestioned. In
what Gathii describes as a pattern of continuity,98 allusions to objective
universal norms have been used to legitimize the wholesale transfor-
mation of non-European nations, beginning with the spiriting away of na-
tive labour and resources.99
IV. International Law: A Case for Universal Subjectivity?
A. The Objectivity of Third World Dispossession
What explains the prevalence of assumptions of universality in the
theory and rhetoric surrounding international law? The international le-
gal regime can hardly lay claim to a democratic impulse; in fact, the exact
opposite holds true.100 International legal relations and regulations during
and after colonial conquest have been heavily influenced by coercive reali-
ties, with international law long possessing a hegemonic texture.101 As de-
fined by Gramsci, hegemony constitutes organized consent to the exercise
of class power in service of capital. In practice, hegemony denotes the mix-
ture of mechanisms, institutions, and ideology used to elicit consent to the
ascendancy of a powerful elite, a group that manipulates a multiplicity of
social elements for personal gain.
96 Mark Rupert, Reading Gramsci in an Era of Globalising Capitalism (2005) 8:4 Critical
Review of International Social and Political Philosophy 483 at 495; see also Morgan,
supra note 32 at 509.
97 Christopher Columbus, First Voyage: Letter of Columbus in Select Documents Illus-
trating the Four Voyages of Columbus, ed and translated by Cecil Jane (Farnham, UK:
Hakluyt, Ashgate, 2010) vol 1 at 2.
98 Gathii, Commerce, supra note 38 at 142.
99 See Anghie, Evolution, supra note 4 at 751.
100 See al Attar & Thompson, supra note 9 at 69.
101 See Gathii, Commerce, supra note 38 at 188.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 119
Varied methods are employed to stimulate popular acquiescence to an
otherwise unfavourable social arrangement including, Gramsci asserted,
law.102 By outlining the boundaries between the permissible and the pro-
hibited, law sketches the contours of acceptable behaviour and educates
populaces in the virtues of compliance.103 Over time, law comes to repre-
sent not just a code of conduct by which individuals abide but a norma-
tively constitutive instrument that informs collective behaviour: Law has
an anchoring effect on normatively acceptable behaviour; it symbolizes
moral and normative commitments; it expresses values that become as-
sumed; and it evokes the norm of law-obeying for its own sake.104 Today,
much of this appears to be happening on a transnational scale. Through
transnational law and global legal institutions, the transnational capital-
ist class is creating new circuits of accumulation while concurrently facili-
tating the communication of (neoliberal) normative preferencesnow de-
ployed as objective legal commitmentstransnationally.
Like Gramsci, Martti Koskenniemi regards this struggle as one of
hegemonic contestation. The term is apropos, for it underscores the man-
ner in which transnational lawmaking continues to operate as a tech-
nique for the projection of parochial preferences and their consolidation
into justiciable legal claims: To think of this struggle as hegemonic is to
understand that the objective of the contestants is to make their partial
view of that meaning appear as the total view, their preference seem like
the universal preference.105 Stated in this way, we come to see that the ar-
ticulation of global norms and principles is often little more than the ex-
pression of special interests, amplified through a bullhorn and superim-
posed on the world as a universal good. Perhaps the most dangerous as-
pect of hegemony, then, is the ideological certainty it conveys, neutraliz-
ing human imagination and creativity.
Of course, not all agree with this claim, but some do not appear to dis-
agree either. Seemingly wanting it both ways, Simma concurs with
Koskenniemis assessmentAny international institution will necessari-
ly be biased in its analysis of the disputebut quickly moves to qualify
his endorsement: [the hegemonic] struggle has hitherto been one among
friends. It is being led with a sense of responsibility by all concerned. It
has not stood in the way of mutual respect, coordination, and cooperation
102 Antonio Gramsci, Selections from the Prison Notebooks of Antonio Gramsci, ed and
translated by Quintin Hoare & Geoffrey Nowell Smith (New York: International Pub-
lishers, 1971) at 208, 246.
103 See Mark A Edwards, Law and the Parameters of Acceptable Deviance (2006) 97:1 J
Crim L & Criminology 49 at 55.
104 Ibid [footnotes omitted].
105 Koskenniemi, Hegemony, supra note 84 at 199.
120 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
where necessary.106 Is it possible to describe, as Simma does, protracted
hegemonic machinations as a friendly, almost jovial affair when even a
cursory examination of the historical record uncovers convincing evidence
of the ethno-chauvinistic outlook taken by First World states regarding
the practice of international law? Double-standards, tiered treatment,
contradictory and hypocritical obligations are common within the regime,
all of which are dressed up as objective universality yet all of which seem
to consistently contribute to preserving the economic ascendancy of the
usual suspects. As Gathii notes, [A]lthough territorial conquest in the
nineteenth century facilitated the extraction of mineral and other re-
sources from poor countries, in the twenty-first century international le-
gal regimes ensure their continued nonviolent access.107 Modern transna-
tional law is no exception, routinely prescribing reformative programmes
that efface localized paths of lawmaking and cultural expression in favour
of European partialities, privileges, and interests. Again, Simma appears
to want to have his cake and eat it too. While he specifically acknowledges
the bias in the actions of transnational institutions (this time the judicial
wing)one could not be blamed for indeed regarding the Hague Court as
a stubborn defender of certain anciens regimes in international lawhe
again moves to qualify and essentially withdraw the admission: [Yet] no
master plan of divide et impera lies behind [these] development[s].108
Simma makes this assertion almost categorically. I say almost, for I
must enquire whether he might also be acting slightly disingenuously.
While Simma, formerly a judge on the International Court of Justice, is
abundantly familiar with legal argumentation and the importance of evi-
dence in support of allegations, he offers none to buttress the friendly re-
lations, mutual respect, or absence of any sinister motives to which he
alludes regarding hegemony in international law.109 The lack of either
reasoning or analysis is made even more conspicuous when contrasted
with other facets of his scholarshipspecifically the article from which
these quotes are drawnwhich otherwise appears diligently and meticu-
lously ordered. Perhaps, though, Simma is less guilty of sloppy scholar-
ship than he is of the same ethno-chauvinism I critique throughout this
essay.
To many Third World legal scholars, and Third World peoples for that
matter, the two-tiered nature of the international legal regime is as self-
evident as mutual respect is to Simma. Whether in his examination of
106 Simma, supra note 83 at 290. I note, however, that Simma earlier refutes the sugges-
tion that universalism necessarily presumes hegemonic aspirations (ibid at 268).
107 Gathii, Commerce, supra note 38 at 145.
108 Simma, supra note 83 at 289.
109 Ibid at 270.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 121
Francisco de Vitoria, Lord Coke, Justice Marshall, former American
president George W. Bush, or former British prime minister Tony Blair,
Gathii provides striking evidence of the genealogical similarity between
their respective pronouncements on international law.110 No matter the
context or the impact, each of them ultimately rationalizes European
conquest and acquisition of non-European territory and resources under
the consistent guise (though inconsistent application) of universal values.111
The alleged primitivenesssometimes darknessof non-Europeans
supplies the troublesome foundation for their moral rehabilitation,
including through the use of force. 112 Highly racialized and racist
arguments, Gathii remarks, effectively sanction the disregard not only of
private property rights, but also of the lives and dignity of [Third World]
people, 113 almost always with the blessing of a universally objective
international legal order. As Mattei and Nader have observed, to the
extent they were recognized at all, Third World legal traditions and
normative preferencesor Third World subjectivitieshave been
downgraded to
incapable of autonomous
evolution.114 To resolve their inherent backwardness, substitution with
universalized and universalizing First World constructs was necessary.
That none of this sways Simmathe universality of international law in
all its variations is in relatively good shape115says more about the
ethno-chauvinism of certain European legal thinkers than any argument I
could hope to make.
Ultimately, the same ethno-chauvinism evident in Simmas casual
dismissal of competing perceptions of international law gave rise to the
formula upon which todays transnational law has been fashioned: devel-
opment = Western legal consciousness + neoliberalism = freedom. While
there have always been doubts as to the formulas viability, the failure of
a key constant throws the whole into disarray. Stated otherwise, the col-
lapse of the universal model raises questions, on the one hand, about the
professed superiority of First World legal thinking and, on the other,
about the presumed value of universal pursuits. Seen from yet another
angle, the crisis appears to create opportunity for the introduction of re-
form along pluralistic lines, a matter that is explored in the following sec-
tion.
pre-modern, rigid and
110 Gathii, Commerce, supra note 38 at 3334.
111 Ibid at 31, 142.
112 Ibid at 3536.
113 Ibid at xx.
114 Mattei & Nader, supra note 46 at 20.
115 Simma, supra note 83 at 297.
122 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
B. Theorizing Global Legal Pluralism
Kenyan revolutionary Ngg wa Thiongo has described in caustic de-
tail the impact the internalization of colonial conceptions has had on colo-
nized societies: The effect of a cultural bomb is to annihilate a peoples
belief in their names, in their languages, in their environment, in their
heritage of struggle, in their unity, in their capacities and ultimately in
themselves.116 Indeed, while coercion and stealth may have been neces-
sary to the spread of neoliberal policies, much can also be said about ideo-
logical internalization among Third World peoples. Paolo Freire described
identification by the colonized with colonial perceptions as the phenome-
non of adhesion: the one pole aspires not to liberation, but to identifica-
tion with its opposite pole.117 Writing during the heyday of decolonization
struggles, Freire was worried about the colonized peoples internalization
of the colonial mentality: a self-immolating worldview that denied the
value of non-conforming cultures and identities. Evidence of this maso-
chism is rife, including many instances of Third World elites pursuing
stronger ties with their former oppressors post-independence or gleefully
assenting to universal prescriptions originating within European minds.
Finally, as David Sallach observes, [t]he most effective aspect of hegemo-
ny is found in the suppression of alternative views through the establish-
ment of parameters which define what is legitimate, reasonable, sane,
practical, good, true, and beautiful.118 Hegemony, in short, consolidates
cultural denial and, eventually, erasure.
To Ngg, Freire, and Sallach, resistance is expected to take many
forms, a claim convincingly corroborated by their respective scholarship.
Sallach directs his efforts toward challenging gospel-like assertions
recall Barbieri, Altman, and Leitoarticulated by the centres of power
and, in the process, countering the devaluation of alternative views.
Freire, for his part, sought to establish an emancipatory pedagogical phi-
losophy that could liberate oppressed and oppressor alike from the dehu-
manizing structures developed during the colonial era. And Ngg, despite
being an accomplished scholar of English literature, is committed to pro-
ducing literary works in his native Gikuyu to promote non-imperial lan-
guages and thus non-imperial cultures (relevantly, he bade farewell to the
116 Ngg wa Thiongo, Decolonising the Mind: The Politics of Language in African Litera-
ture (London: James Currey, 1986) at 3.
117 Paulo Freire, Pedagogy of the Oppressed, 30th anniversary ed, translated by Myra
Bergman Ramos (New York: Continuum, 2005) at 4546.
118 David L Sallach, Class Domination and Ideological Hegemony (1974) 15:1 Sociological
Quarterly 38 at 41.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 123
English language in a text entitled Decolonising the Mind).119 Each in-
stance of resistance seeks to facilitate the manifestation of an authentic
experience or, to use the language appropriate to this article, to value sub-
jectivity. The impetus behind these varied instances of resistance is the
creation of political space for the pursuit of new forms of social self-
determination: what Mark Rupert poetically describes as the re-opening
of political horizons effectively foreclosed by capitalist social relations and
their associated self-understandings.120 In short, resistance aims to sub-
stitute professed universal objectivity with actual organic subjectivity.
From an international legal vantage point, however, it remains un-
clear how organic subjectivityor simply resistancemight materialize.
As Ruth Buchanan explains, a strategy for manifesting counter-hegemony
or resistance in international law has long perplexed jurists. Many Third
World legal scholars describe international law as an oppressive tool that
aids in the preservation of a deeply unjust global order.121 Even Simma
recognizes, if only indirectly, the nefarious origins and practices of inter-
national law.122 Sadly, their support for programs of decolonization, self-
determination, and collective well-being is entangled with their commit-
ment to high-sounding universal ideals and to a global regulatory regime
that perpetuates the very hierarchies and exclusions that they ostensibly
stand against.123 In this way, the promotion of self-determination is ar-
ticulated, not without irony, through support for universal and objective
norms. This contradiction, Buchanan asserts, helps explain the ambiva-
lence of scholars toward the role of international law in transformative
movements and their inability to envision the next step.124
To Roderick Macdonald, Paul Schiff Berman, and Brian Tamanaha,
the next step is a type of global legal pluralism.125 The ideal upon which
global legal pluralism rests is human diversity: the world is made up of a
vast array of diverse cultures, all of which possess their own methods of
expression, forms of knowledge, and normative priorities, though only
119 For a particularly impassioned look at the impact of colonization on language and cul-
ture, see Jules Koostachin, Remembering Inninimowin: The Language of Human Be-
ings (2012) 27:1 CJLS 75.
120 Rupert, supra note 96 at 492.
121 Ruth Buchanan, Writing Resistance into International Law (2008) 10:4 International
Community Law Review 445 at 445. Of course, this view is not shared by mainstream
international legal scholars who regard international law as a decidedly modernist en-
terprise (ibid).
122 Simma, supra note 83 at 289.
123 Buchanan, supra note 121 at 446.
124 Ibid at 454.
125 See Brian Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Glob-
al (2008) 30:3 Sydney L Rev 375.
124 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
some are able to impose their norms through (potentially coercive) legal
mechanisms.126 Regardless of this codified hierarchyboth transnational-
ly (between First World states) and domestically (within the nation-
state)Berman hastens to deny the exclusive legitimacy of the nation-
state in international legal discourse, quoting with approval Robert Cov-
ers statement that all collective behaviour entailing systematic under-
standings of our commitments to future worlds [can lay] equal claim to
the word law. 127 Berman stresses that regardless of whether these
knowledge-bases ever acquire the force of law, they invariably impact ac-
tual practices and everyday facets of life.128 Ultimately, to both Cover and
Berman, subjectivity provides the scaffolding upon which regulatory ar-
rangements are fashioned.
Macdonald makes a similar point albeit with a geographic or, more to
the point, non-geographic twist. Declaring that respect should be afforded
to different and equally legitimate cultural preferences, he denies the lo-
cal hegemony of national legal orders, believing that future global legal
arrangements are to be based on negotiations between multiple, overlap-
ping, often non-geographically defined legal systems. 129 Accordingly,
when examining law from an international or transnational angle, the
discussion must henceforth account for the interplay between shifting
normative regimes, including local, national, regional, international, and
now global scales.130 This creates multiple overlapping jurisdictions, suf-
fusing a wide variety of cultural constructs with the claimed legitimacy of
law.131
Of course, contrasting normative aspirations between cultures will
necessarily engender tension with dominant conceptions. With pluralism,
efforts are made to minimize hierarchical relations between differing legal
and social orders; the contention is that the accommodation of distinct
126 See Paul Schiff Berman, Global Legal Pluralism (2007) 80:6 S Cal L Rev 1155 at
1157.
127 Paul Schiff Berman, A Pluralist Approach to International Law (2007) 32:2 Yale J
Intl L 301 at 307.
128 Ibid at 308.
129 Roderick A Macdonald, Metaphors of Multiplicity: Civil Society, Regimes and Legal
Pluralism (1998) 15:1 Ariz J Intl & Comp L 69 at 79.
130 For enlightening examples of the politics of scale, see Csar A Rodrguez-Garavito, Ni-
kes Law: The Anti-Sweatshop Movement, Transnational Corporations, and the Strug-
gle over International Labor Rights in the Americas in Boaventura de Sousa Santos &
Csar A Rodrguez-Garavito, eds, Law and Globalization from Below: Towards a Cos-
mopolitan Legality (Cambridge: Cambridge University Press, 2005) 64; Thomas Per-
reault, State Restructuring and the Scale Politics of Rural Water Governance in Boliv-
ia (2005) 37:2 Environment and Planning A 263.
131 See William W Burke-White, International Legal Pluralism (2004) 25:4 Mich J Intl
L 963 at 97778.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 125
cultural norms requires a shift in our perception from international legal
equality to international legal equivalence, from objective norms to sub-
jective priorities.132 In this instance, jurists are being invited to engage
with law as social scientists increasingly do with their sources: eschewing
truth and certainty for context and circumstance, and favouring circular
rather than linear investigation. The failure of this shift to materialize
can be traced to the unwillingness of official actors to acknowledge human
culture and subjective experiences on equivalent terms (or even on equal
terms), suggesting that the post-colonial international legal regime stands
as a compelling example of modernitys cultural supremacist dialecticor
crisisat work.
Yet, notwithstanding the impressive range of scholarship in support of
the pluralist position, the leap of imaginationor perhaps of faithhas
yet to occur. Instead, we observe an expanding jurisdictional reach among
international institutions, institutions that continue to foreclose the par-
ticipation of both non-conforming and popular voices. Moreover, the pro-
cess of international lawmaking is increasingly exhibiting plutocratic
tendencies, monopolized as it is by powerful institutional actors, highly
uniform in their ideologies and vastly acrimonious towards notions of cul-
tural plurality.133 As Koskenniemi asserts, these fixtures are straining the
regime and must be confronted if the international legal project is to pro-
gress.
In the following section, I draw upon Nancy Frasers reflections on the
political dimension of justice in a globalized world to explicate how this
progress might transpire, specifically by sidestepping the perilous univer-
sal-particular dichotomy. By making the structures more representa-
tiveor, in Frasers language, by revising political boundaries to allow for
participatory parity between traditionally legitimate international actors
and those hitherto excluded from transnational lawmaking processeswe
promote the sort of reflexivity that is needed in a globalizing world.134
132 See Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights
(2001) 42:1 Harv Intl LJ 201 at 243.
133 See Martti Koskenniemi, What Should International Lawyers Learn From Karl
Marx? (2004) 17:2 Leiden J Intl L 229 at 24246.
134 Nancy Fraser, Reframing Justice in a Globalizing World (2005) 36 New Left Review
69 at 88.
126 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
V. Effective ResistanceEffective Subjectivity
A. Dimensions of Justice
I begin with Philip Allott: The aggiornamento of international society
means purposively bringing international society into line with our best
ideas and highest expectations about society in general.135 Part of a com-
prehensive examination of the concept of international law, Allotts in-
spired (and inspiring) statement is a welcome interlude to both formalistic
and critical scholarship on the topic. What makes statement and article
stand outaside from the artistry of his prose and analysisis the clarity
of vision they convey. At the heart of this vision are notions of justice and
common interest, grandly buttressed by a desire for the prospering of the
human species, to be achieved, Allott asserts, through our best ideas and
highest expectations.136 His definitions of these ideals, while ideologically
elucidative, are not of practical relevance to the following analysis. In-
stead, what I draw uponin addition to the macro-vision he articulates
is his description of law: Law is not, as so often supposed, a system of le-
gal rules. Law is a system of legal relations. … A legal relation (right, du-
ty, power, freedom, liability, immunity, disability) is a pattern of potenti-
ality into which actual persons and situations may be fitted.137
By using a relations model, Allott allows for law to be engaged less as
code and more as movement, as discussed earlier, but also as matrix,
heuristic, and algorithm, which more closely parallel the nature of
human interaction and thus of social reality. The relations model serves
as a particularly helpful springboard into Frasers political dimension of
justice.
In a highly insightful essay, Fraser argues that accelerated globaliza-
tion has altered the framework in which justice discourse is happening.
Social processes have gone global, transforming (or hollowing out) the
previous structure of political claims-making, resulting in a new sense of
vulnerability to transnational forcesfrom a Third World perspective,
Chimnis recolonizationand chang[ing] the way we argue about social
justice.138 Fraser defines justice as parity of participation, a definition
that accords with the concerns raised in this article about the power dis-
parity and subject-object relationship that persists between the First and
Third World in transnational lawmaking arenas. Parity also corresponds
with our highest expectations as embodied, for instance, by the equality
135 Allott, supra note 52 at 47.
136 Ibid at 38, 47.
137 Ibid at 36.
138 Fraser, supra note 134 at 71.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 127
ethos found in countless human rights treaties. While distributive injus-
tice and status inequalityor maldistribution and misrecognition
persist as institutionalized impediments to participatory parity, what
Fraser identifies as a third dimension of justice has taken on greater sig-
nificance in the transnational era.
It should be noted that the political dimension embodies, on one hand,
jurisdictionthose aspects of social organization over which an institu-
tion possesses authorityand, on the other, standingthose criteria that
are used to ascertain social belonging. Together, these elements establish
who is entitled to make justice claims and upon whom these claims are to
be made. In this way, injustice in the political dimension is aptly de-
scribed as misrepresentation, for boundaries act to include some and ex-
clude others resulting in a denial of parity: Misrepresentation occurs
when political boundaries and/or decision rules function to deny some
people, wrongly, the possibility of participating on a par with others in so-
cial interaction.139 The term misrepresentation is apropos, for it pre-
supposes the very parity upon which justice is meant to rest, taking for
granted equality of participation in public processes of social deliberation.
While certainly of value in a nation-state frameworkcitizens on par
with one another possessing equal opportunity to participate in structur-
ing the direction of their statethe significance of the political is also
comparably self-evident when examined through a transnational lens (or
at least the specific lens that emerges from this article). In a regime
where European subjectivity has traditionally been presented and has of-
ten been received as universal objectivity, questions abound as to whether
it might be more accurate to designate international law as European
outer-state law. To be sure, in a stratified world and increasingly hege-
monic global order, international legal concepts as seemingly concrete as
sovereignty appear to sit on a continuum and are applied differentially to
First World and Third World states.
When combined with our new sense of vulnerability to transnational
forces and, idyllically, the prospering of the human species, actual levels
of misrepresentation seem to trounce our highest expectations. To return
to my earlier remarks, the rules pertaining to jurisdiction within interna-
tional institutions are used to maximize reach over the political constitu-
tion of global society. Yet, these same rules are constructed so as to deny
vast swathes of the human species standing in an emergent transnational
political community, while simultaneously protecting the privileged few
from any form of accountability or, to apply Allotts vocabulary again, to
139 Ibid at 76.
128 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
inoculate the transnational capitalist class from humanity itself.140 This
time, Chimni appears prescient in his description of transnational law as
groundwork toward the materialization of an imperial global state.
When operating in such a framework, it becomes increasingly difficult
to imagine conditions that might accommodate pluralistic knowledge-
bases. As Koskenniemi recognizes, not without a hint of melancholy,
competing descriptions work to push forward some actors or interests
while leaving others in the shadows.141 This is neither comforting nor
surprising, for international law has always been more than legal struc-
ture: it represents a global ideological movement that raises both possibil-
ities and limits for political engagement and political emancipation. To re-
state my introductory argument, the transnationalization of the system
has done little more than intensify processes of contestation by funnelling
greater regulatory power into fewer hands. Writing nearly three centuries
ago, even Rousseau argued that an abundance of legislative power among
any class of self-serving actors who are neither democratically elected nor
accountable both creates and perpetuates inequality: [L]aws are always
useful to those who possess and injurious to those that have nothing.142
Power asymmetries in legislative processes may not be a new phenome-
non but their expanding (global) reach makes this a worrying trend.
B. Process as Path to Equivalent Subjectivity
While this frame does not wholly elucidate a strategy of resistance, it
does sketch a loose outline of parameters that might act to strengthen
Frasers third dimension of justice. Like Fraser, Freire regarded exclusion
from participation as an overt form of oppression; the denial of participa-
tion amounts to a denial of liberty and, by extension, a state of injustice.143
It stands to reason then that inclusion and participation equate decisively
with justice. Of course, it also stands to reason that the general will of the
collectivewhether in a nation-state framework or a transnational one
is unlikely to consistently align with the will of an individual or a commu-
nity. Nor is this necessary. According to a parity benchmark, those im-
pacted by a particular decision must experience the process by which it is
made and observe first-hand the responsiveness of structures to their rep-
140 Ibid at 81.
141 Martti Koskenniemi, The Politics of International Law: 20 Years Later (2009) 20:1
EJIL 7 at 11 [Koskenniemi, Politics].
142 Jean-Jacques Rousseau, The Social Contract and the First and Second Discourses, ed
and translated by Susan Dunn (New Haven: Yale University Press, 2002) book 1, ch 9
at 169; see also Holmes, supra note 10 at 47.
143 Freire, supra note 117 at 6768.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 129
resented values and ideas.144 Participation or, more accurately, parity of
participation is the end in itself and not a zero-sum exercise. If individuals
or states feel alienated from the process by which regulatory regimes are
established, consent is reduced to acquiescence by default, acquiescence
by sale, or acquiescence by gunboat, all of which can be observed within
transnational lawmaking arrangements and none of which harkens of
humanitys highest expectations, of global prosperity, or even of the most
superficial form of justice.
1. Procedural Scaffolding
To better appreciate the value of the procedural scaffolding I am allud-
ing to in deepening the third dimension of justice, consider the current
state of policy-setting in the area of trade law. Trade agreements repre-
sent an increasingly focal segment in both domestic and international
law. Recent years have witnessed a form of jurisdictional creep as trade
regimes are empowered to regulate more and more facets of social organi-
zation.145 Examples are numerous and include essential goods and ser-
vices such as healthcare, prescription medicines, oil and gas exploration,
farm animal growth, and others. Yet the gradual pull of disparate matters
of public import into the trade orbit appears not to have been matched by
efforts to enhance the democratic legitimacy of trade negotiations. In fact,
the exact opposite holds true as trade is increasingly insulated from forms
of public oversight common to other domains.146
For instance, standard practices in trade law today include secret ne-
gotiations between the executive branches of negotiating governments
and the near exclusive involvement of corporate actors in government
consultations. The rise of secrecy in trade deliberations was predictable,
for negotiations presuppose political sensitivity, thus favouring discretion
throughout the process.147 Canadas chief trade negotiator, Steve Verheul,
when commenting on trade agreements, has consistently declared it inap-
propriate for him to speak publicly during negotiation phases, both to the
citizenry and to Parliamentarians outside the executive branch.148 While
144 See Robert Post, Democracy and Equality (2005) 1:2 Law, Culture and the Humani-
ties 142 at 145.
145 See Kelsey, supra note 53 at 17.
146 See Dani Rodrik, The Globalization Paradox: Democracy and the Future of the World
Economy (New York: Norton, 2011).
147 See Fatoumata Jawara & Aileen Kwa, Behind the Scenes at the WTO: The Real World
of International Trade Negotiations (London: Zed Books, 2003).
148 See e.g. Steve Verheuls letter to the Canadian Union of Postal Workers (Letter From
Steve Verheul Chief Negotiator CanadaEU CETA (2 September 2010), online: Cana-
dian Union of Postal Workers
130 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
the validity of this viewpoint is beyond the scope of this article, I remark
that other nations apply different standards. For example, in Venezuela,
the public is invited to comment on proposed treaties prior to their finali-
zation.149 This manifestation of direct democracy is unavailable to most
outside of Latin Americathough it should be noted that consultations
with industry organizations happen habitually. The concurrent exclu-
sion of members of the public and an inclusion of corporate members of
the private sector is surely advantageous for the quick resolution of trade
deals. However, in terms of democratic principles such as political equali-
ty, transparency, and justice, these appear risky at best and dangerous at
worst.
There is more. Trade law is modifying the functions of the three
branches of government, specifically by stripping powers away from the
legislature and judiciary and placing these, respectively, in the hands of
the executive and of private dispute resolution bodies.150 Legislative re-
sponsibility is being altered in two important ways. We observe legisla-
tures conferring open-ended parliamentary mandate[s] to executive
branches for the resolution of trade agreements and, in the process, re-
classifying varying social activities under the trade banner.151 While rati-
fication remains with the legislative wing, this safeguard hardly seems
adequate in ensuring a democratically robust process. As is evident, trade
deals involve years of high-level negotiations. The probability of a legisla-
ture intervening ex post facto to oppose a settled agreement seems negli-
gible.
The contemporary trade framework is equally stymieing legislative
authority. Trade agreements such as NAFTA preclude parliaments from
passing laws that derogate from their provisions. This amounts to a con-
solidation of power by the executive branch as it ultimately decides what
falls within the trade ambit, resulting in a dilution of legislative authority
and a muddying of the separation of powers. By extension, what is also
being diluted is the democratic authority of citizens. As the powers of rep-
resentatives are curbed, ballots diminish in value and effectiveness.
Finally, another standard practice within trade law involves vesting
foreign private entities with the right to challenge the legality of domestic
laws that conflict with trade terms (e.g., Chapter 11, the investment com-
149 See Thomas Muhr, (Re)constructing Popular Power in Our America: Venezuela and
the Regionalisation of Revolutionary Democracy in the ALBATCP Space (2012) 33:2
Third World Quarterly 225 at 228.
150 See William E Scheuerman, Reflexive Law and the Challenges of Globalization (2001)
9:1 Journal of Political Philosophy 81 at 95.
151 Harry W Arthurs, Law and Learning in an Era of Globalization (2005) 10:7 German
Law Journal 629 at 634.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 131
ponent of NAFTA).152 Adjudication of these challenges is conducted by a
supranational dispute resolution body far removed from domestic polities.
Importantly, the body operates covertly, specifically by censoring both the
identities of the adjudicators and the deliberations that produce the bind-
ing rulings. Like corporate consultations, the outsourcing of judicial au-
thority appears to bear upon democratic norms. In both instances, demo-
cratic principles such as open justice and public accountability are un-
dermined. First, locating the body outside national territorial boundaries
precludes the public from participating in the proceedings. Second, the va-
lidity of a domestic law can ultimately be decided by neither of the tradi-
tional branches of governmentthe legislature or the judiciarybut, in
the first instance, by the executive and, in the second, by a supranational
body, with the deliberations of both altogether concealed from the public.
Trade law and all that it encompasses is quietly becoming the prerog-
ative of a privileged political vanguard. If elected bodies are seeing their
powers siphoned and trade practices increasingly eluding public control,
then the nature of public authority is necessarily being altered. In sum,
the rules and procedures that underpin the setting of trade policy appear
to only allow for a chorus of like-minded voices to be heard, misrepresent-
ing class-based unityor subjectivityas social universality. In this way,
these procedures run counter to participatory parity and to the pursuit of
justice emblematic of a free and democratic society.
Building on this notion of participation, and looping through the uni-
versal-particular and objective-subjective narratives, I propose that effec-
tive resistanceor at least resistance that can successfully stave off the
ambivalence Buchanan lamentsmight be achieved via a two-pronged
strategy. In the first stage, and as I have detailed elsewhere, mechanisms
are needed to ensure that those affected by social institutions have a
share in producing and managing them.153 For instance, a central feature
of ALBA, a Latin American integration project, is the Council of Social
Movements. This formal body brings together national councils from
member-statesconsisting of delegates from local community groups
and places them alongside the Council of Ministers. It is tasked with
channelling popular opinion into ALBA initiatives and overseeing public
interest in existing projects.154 In this way, and in contrast to the model
152 North American Free Trade Agreement Between the Government of the United States of
America, the Government of Canada and the Government of the United Mexican States,
17 December 1992, Can TS 1994 No 2, 32 ILM 289 (entered into force 1 January 1994)
[NAFTA]. See also Arthurs, supra note 151.
153 Al Attar & Thompson, supra note 9 at 8899.
154 Al Attar & Miller, supra note 6 at 357 [footnotes omitted].
132 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
described just above, a measure of participation, parity, and accountabil-
ity is integrated into the policy-setting framework.
Nor is this the only instance of participatory governance emerging
from South America. Social councils, bodies that formulate and imple-
ment social policies, are common in Brazil, Venezuela, and Bolivia. These
are in fact the most widespread participatory institution, possessing au-
thority in the areas of health, education, social services and childrens
and adolescents rights.155 The constitutive terms of the councils require
that local authorities, private sector providers, and civil society actors
meet to deliberate, negotiate, and ultimately implement public policy per-
taining to the given subject matter. The council administers the process
and monitors the implementation, ensuring accountability across all lev-
els. Importantly, it should be noted that if the parties do not participate in
the process or if the council refuses to endorse the outcome, federal funds
earmarked for the municipality are withheld until consensus is reached:
The opening up of new venues of citizen participation is seen as a way to
thicken the field of mediating mechanisms beyond legislatures and par-
ties to promote the access of previously marginalized specific sectors to
the political system.156
As has been suggested throughout this article, parity of participation
allows subjectivities to collide in a structured environment. Decision mak-
ing, or at least publicly accountable and democratic decision making,
must be walled by structures, meaning formal rules and procedures that
ensure parity of participation. Rule by fiat or disposition, of the variety
that litters meta-regulatory regimes, essentially eviscerates representa-
tion and, by extension, the practice of justice: [P]olitical and ideological
struggles occur within institutionalized systems of domination. So long as
such systems remain stable and intact, the leading group and its ideology
are likely to persist.157
Mechanisms give value to participation. Contrast the earlier state-
ment by Rousseau about legal coercion and legal partiality[L]aws are
invariably useful to those who own property and harmful to those who do
notwith the following by Stephen Holmes: When power and wealth
become widely dispersed, law becomes not a stick used by the few against
the many but a two-edged sword.158 Holmes may be mostly concerned
with lessening economic and cultural inequality to reduce the predatory
155 Peruzzotti, supra note 30 at 637.
156 Ibid at 638.
157 Howard H Lentner, Hegemony and Autonomy (2005) 53:4 Political Studies 735 at
741.
158 Holmes, supra note 10 at 50.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 133
violence, humiliation, dependency and unpredictability inflicted on the
weak159 (or maldistribution and misrecognition), but his statement readi-
ly applies to the third dimensionthe dispersal of political participation
(misrepresentation)for, as Fraser observes, all three dimensions of in-
justice are commonly intertwined.160 Indeed, [o]nce traditionally excluded
groups gain access and influence over the law-making process, rule of law,
as opposed to rule by law, emerges as the reigning paradigm.161 Presum-
ing a desire to promote an ethos of justice (meaning)in this instance
parity of participationthen rules (machinery) must be amended to facili-
tate popular, effective, and meaningful democratic engagement.
2. Subjective Lawmaking as Path to Mutual Construction
The second and, I believe, more interesting stage of the strategy flows
from the preceding but is also indirectly inspired by Holmes and Frasers
chosen vocabulary. Holmes designates much of the First Worlds behav-
iour toward Third World peoples as predatory and bemoans their collec-
tive humiliation. Fraser, for her part, uses similarly loaded language,
describing those marginalized within the current order as despised.162 At
first blush, such vocabulary seems queer in international legal scholar-
ship. Reasons for the discomfort vary but, I expect, foremost is a fear
among international legal scholars of partisanship.
The United Nations Human Rights Council, for instance, has been
heavily criticized for appointing Richard Falk as Special Rapporteur on
the situation of human rights in the Palestinian territories occupied since
1967. Much of the criticism originates from his alleged partiality toward
the Palestinian cause. For example, Julian Ku argues, I have never
thought Falk was particularly well-qualified to be a U.N. rapporteur, both
his background and political preferences make him a relentlessly one-
sided advocate rather than an objective investigator.163 Without descend-
ing into the nihilism of radical subjectivity, I cannot help but wonder
which aspect(s) of Falks background or political preferences perturb Jul-
ian Ku. Concurrently, I must also enquire what exactly makes Kus cri-
tique of Falks background and political preferences objective in itself. I
pose this second question not to mock the scholar but to highlight that
along with fear of partisanship is a relentless albeit fallaciouspursuit
of objectivity in international law.
159 Ibid at 49.
160 Fraser, supra note 134 at 76.
161 Al Attar & Thompson, supra note 9 at 85 [emphasis added].
162 Fraser, supra note 134 at 78.
163 Julian Ku, Time for Richard Falk to Resign as Special Rapporteur? (1 February 2011),
online: Opinio Juris
134 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Not unlike many other international legal scholars, Ku begins from a
position eloquently enunciated by Nicholas Rescher: [T]he essence of ob-
jectivity lies in its factoring out of ones deliberations, personal predilec-
tions, prejudices, idiosyncrasies, and the like that would stand in the way
of intelligent peoples reaching the same result.164 Objectivity, it seems,
amounts to both consistency and reasonableness (or reasonableness in
consistency). In our era of political correctness, notions of objectivity are
effective in effacing subjectivity from social institutions or, at a minimum,
concealing it. Yet, as neoliberal and transnationalization discourse re-
peatedly demonstrates, we find much in the way of predilections and
prejudices in the international legal regime, as well as a baffling absence
of consistency and reasonableness.
The failure, however, is not of objectivity as concept but in its manipu-
lation to support a biased state of affairs. Perhaps this is a trite example,
but is there any objective justification for the veto powers wielded by the
victors of World War II in a system supposedly couched in the language of
sovereign equality? Can we genuinely expect objective policy to mediate
the relations between actors denoted by obscene levels of inequality across
political, economic, and technological spectra? Does the pursuit and regu-
lar use of military power by the usual suspects buttress or undermine the
deliberations of intelligent people? In short, is there any way of ensuring
that predilections, prejudices, and idiosyncrasies are exorcised from geo-
politics or, more to the point, from human interactions?
Holmes and Frasers preferred vocabulary makes no allusions to ei-
ther objectivity or universality, with both recognizing the partiality of
their position. And while I share many of their views, it is not solely our
shared sentiments that possess appeal. Instead, and this is the second
stage of the strategy toward effective resistance that I am proposing,
alongside participatory mechanisms there is, I argue, a need for subjectiv-
ity. Long the castoff of international law, subjectivity is an important tool
in the humanization of international legal practice. By humanization, I
mean that scholars could benefit from studying diverse human aspira-
tionsjustice, dignity, and a good lifein multiple areas of law and with-
in varying normative traditions to ensure that legal constructs convey (or
at least attempt) an authentic representation and amalgamation of these
pursuits. In this way, the aim is to highlight the vital links between legal
systems and the societies they service or, in metaphorical language, to re-
order horse and cart.
As Paulo Freire pointed out some years ago, [t]he oppressed have
been destroyed precisely because their situation has reduced them to
164 Quoted in Facts & Values, Truth & Objectivity (22 September 2009), online: Ratio Ju-
ris
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 135
things. In order to regain their humanity they must cease to be things and
fight as men and women. … They cannot enter the struggle as objects in
order later to become human beings.165 It is difficult to speak of law or so-
ciety, justice or libertyparticularly on a global post-colonial scale
without a conception of humanity and a programme of humanization.
Whether describing Nggs use of Gikuyu or Sallachs conceptualization
of alternatives, Allotts championing of highest expectations or Frasers
crusade for justice, La Via Campesinas model of food sovereignty or the
World Social Forums practice of participatory democracy, each effort
amounts to an act of resistance that aims to challenge a perceived hege-
monic situation.
Returning to Fraser, these challenges are manifested through acts of
representation, each of which is propelled by a desire of the interlocutors
to be heard and have their subjectivity recognized. Of course, there is of-
ten a desire to have a particular subjectivity concretized but this is beside
the point for, being part of a political and social project, there is no way of
avoiding competing interests and the attendant contestation that arises.
At the same time, and this point is frequently made by members of the
pluralist campaign,166 under the right circumstances and with the correct
methods, a process of contestation can morph into a process of mutual
construction, mollifying rather than intensifying social divisions. Two in-
stances of subjectivity guiding mutual construction can be located in the
Islamic and contemporary international legal traditions.
Briefly, Islamic law is denoted by a wide multiplicity of jurisprudential
trends. As the primary sourcesthe holy text (the Quran) and the pro-
phetic traditions (the Sunnah)cannot be revised, jurists must necessari-
ly engage in the practice of interpretation and, in certain instances, in
doctrinal development (ijtihad). 167 With an array of legal interpretive
methods available, over the centuries jurists have adopted varied ap-
proaches toward the practice of interpretation, resulting in the materiali-
zation of distinct jurisprudential schools. Most fascinating is the interplay
between the schools. Hardly competing or antagonistic, they operate as
complementary bodies, balancing each other by helping to shape a vast
compendium of diverse analyses. Nearly a millennium ago, the founder of
one of these schoolsAbu Hanifah of the Hanafi schoolmade a declara-
tion that, until today, stands as the most cogent representation of effec-
tive subjectivity in lawmaking: This knowledge of ours is an opinion, it is
the best we have been able to achieve. He who is able to arrive at different
165 Freire, supra note 117 at 68.
166 See Macdonald, supra note 129 at 90.
167 See M Cherif Bassiouni & Gamal M Badr, The Shariah: Sources, Interpretation, and
Rule-Making (2002) 1:2 UCLA Journal of Islamic and Near Eastern Law 135.
136 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
conclusions is entitled to his opinion as we are entitled to our own.168 In
practice, the schools operate to make this compendium available to practi-
tioners of the faith, allowing them to autonomously decide which ap-
proach gels with their personal preference toward worship.
Both the variability in the jurists interpretation and the autonomy af-
forded to practitioners promote the practice of mutual construction while
avoiding the pitfalls of social divisions. Regarding the former, jurists and
scholars engage in sophisticated analyses not dissimilar to the kind found
in academic halls. As new issues arise, novel approaches are proffered,
helping to grow a collectively available bank of knowledge. In this case,
subjectivity is settled upon as the most adequate strategy for ensuring
that jurisprudential trends remain both dynamic and diverse. As to the
latter, social divisions are placated by ensuring that practitioners of the
faith (believers) enjoy representation. While believers do not possess the
necessary training to produce advisory opinions (fatwas), they enjoy the
autonomy to decide for themselves which jurisprudential schools best rep-
resent their values. When handling disputes between believers, judges
(qadis) draw upon the edicts of the relevant schools and measure the ac-
tions in question accordingly. In this way, normativity is neither universal
nor alien; it is subjective and private.
A second example of subjectivity is located in contemporary trade law.
According to the preamble of the Agreement Establishing the WTO, two
key objectives of the institution are to promote trade policies that take in-
to account differing levels of development and to ensure that those eco-
nomically worse off share in the benefits of trade.169 Notwithstanding the
often rhetorical nature of these aims, some mechanisms have been im-
plemented that acknowledge difference, both textually and practically.
Beyond most-favoured nation, national treatment, and reciprocity princi-
plesall of which codify a neutral representation of objective equality be-
tween member stateswe find Special and Differential Treatment, itself
intended to give substance to the aims identified above. The preamble de-
scribes this principle as being embodied by positive efforts designed to
ensure that developing countries … secure a share in the growth in inter-
national trade commensurate with the needs of their economic develop-
ment.170 Unequal treatment, or subjectivity, is necessary to address the
gaps produced during the colonial period, gaps which have made for very
unequal relationships between Third World countries and their First
168 Quoted in Farhad Nomani & Ali Rahnema, Islamic Economic Systems (London: Zed
Books, 1994) at 12.
169 Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 154,
33 ILM 1144.
170 Ibid.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 137
World counterparts. Stated otherwise, without positive discrimination
mechanisms or special measures or subjectivity, effective equality is
impossible to achieve.171
These two examples illustrate the practice of subjectivity within both
lawmaking and policy setting and, in at least the first instance, the prac-
tice of popular representation (by way of voluntary membership). Neither
instance is a pure form of subjectivitywithin Islamic law the primary
sources are sacrosanct, and within WTO law the end goal is universal
formal equalityand representation is highly imperfectin the former,
believers can endorse a school (or not) but cannot change it, and in the
latter, power politics are rife, resulting in the dilution of active forms of
Special and Differential Treatment (protection of local industries) and the
promotion of passive ones (time-limited deferral of trade liberalization).
Yet both examples provide evidence of the value of subjectivity. Norms
such as objectivity and universality are substituted with subjectivity and
particularity, elevating human aspirationsof both individuals (believers)
and nations (Third World)to the level of normative benchmark. Social
divisions may persist but, ultimately, the valuing of varied manifestations
and realities provides for the inclusion of multiple representations in the
structuring of social normativity and, in my view, of justice in its most
agreeable form.
Conclusion: A Procrustean Bed?
In this essay, I have highlighted the historical use of notions of objec-
tivity and universality in international law to advance First World eco-
nomic interests, primarily through the codification of conditions that sus-
tain ongoing Third World dispossession. I have argued that these inter-
ests have taken on a transnational character and are being pursued
through an elaborate network of meta-regulatory regimes controlled by
and beneficial to an emergent transnational capitalist class. These re-
gimes are used to diffuse a programme of 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 have suggested
that while various instances of resistance are observable, critical interna-
tional legal jurists appear bemused and hesitant in their efforts at craft-
ing proposals for the reform of the global legal order. While some scholars
champion a type of global legal pluralism that would recognize the legiti-
macy of law and lawmaking as executed by non-institutional legal actors,
ambivalence is rife. Indeed, many critical scholars remain perplexed as to
how we might reconcile the pursuit of a universally and objectively just
171 Gillian Moon, Trade and Equality: A Relationship to Discover (2009) 12:3 J Intl Econ
L 617 at 62223.
138 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
order in a pluralist, subjective, and highly stratified world. Building on
Frasers political dimension of justice, I argued that conceptualizing and
eventually structuring more representative participatory transnational
lawmaking processes, the kind that would allow for and even value both
parity of participation and actor subjectivity, might help further the cause
of global justice. By making the structures more representative, the in-
ternational legal order comes to accord with humanitys highest expecta-
tions.
The question that remains, and the one I wish to conclude with, is
whether I have successfully brought together meaning and machinery, as
these two elements pertain to the restructuring of international law, with-
in the context specified in the introduction. Admittedly, the jury must still
be out. On one hand, the First World continues to dominate the Third
World in virtually all measures and will likely do so for some time to
come; old habits die slow and old structures reform even slower. In addi-
tion, what Philip Altbach described as a kind of servitude of the mind in
the Third World is alive and well: [t]hose in power in many Third World
nations look to the industrialized world for models for their own develop-
ment. The center-periphery relationship is implicitly accepted by those on
both sides.172 On the other hand, what the plethora of nationalization
schemes potentially indicates is that, across Latin America, intellectual
autonomy is back on the agenda. Neoliberal dogma is no longer the com-
pelling force it once was, as the policy choices rising in popularity today
endorse an increase in public involvement in the delivery of services,
choices diametrically opposed to the teachings of Hayek, Friedman, and
other neoliberal denizens (not to mention the policy preferences of inter-
national financial institutions). This redirection simply confirms what has
been argued all along: transnational law is a site of political contestation,
and the people of the Third World are creatively seeking to regain their
humanity.
I have been careful throughout this essay not to claim either the com-
plete absence of or my complete opposition to universality. In fact, in no
less than five instances I explicitly alluded to universal ideals: justice,
participation, liberty, highest expectations, and humanization. Hard
pressed are we to locate a society that does not place preeminent value on
these pursuits. And this, to me, is the crux of the matter. Unlike a princi-
ple, a universal pursuit lacks any fixed meaning or normative content.
Development and progress, public and private, market and society, and, of
course, law and order are merely surrogates for varying societal aspira-
tions. Surely it is expected that these will mean different things to differ-
172 Philip G Altbach, Servitude of the Mind? Education, Dependency, and Neocolonialism
(1977) 79:2 Teachers College Record 187 at 20304.
REFRAMING THE UNIVERSALITY OF INTERNATIONAL LAW 139
ent people(s). Diversity in social position, tradition, and culture, not to
mention the dynamism of human existence, necessarily produces invoca-
tions of varied meanings in support of varied standpoints. What is includ-
edor what is left outis, ultimately, more a matter of subjective strate-
gy than of objective science.173
It is, however, also a matter of institutionalized structures and pro-
cesses: certain claims can be made in specific forums while simultaneous-
ly being foreclosed in/to many others. In this way, I have come to realize
that bringing meaning and machinery together essentially involves both
acknowledging and valuing subjectivity. The sooner we embrace subjectiv-
ity, I believe, the sooner we move closer to reconfiguring the unjust rela-
tionship that characterizes the international legal order by providing for
the equal representation of these subjectivities. I quote, and slightly par-
aphrase, Edward Said: to the extent that international law reproduces the
imperial ideology of our time, to that extent we can characterize our own
present attitudes: the projection, or the refusal, of the wish to dominate,
the capacity to damn, or the energy to comprehend and engage with other
societies, traditions, histories.174
Ironically, I conclude with the very same warning Simma uses to end
his article on the merit of universality in international law. The former
ICJ judge finishes by cautioning against compelled constitutionalism
(which he fears will lead to fragmentation) or, in whimsical terms, against
forcing [our happiness] into some Procrustean bed.175 His meaning, I
admit, first eluded me. Procrustes is a character from Greek mythology
who, rather than accept human variegation, elected to violently elongate
or shorten his guests limbs to ensure they were the right stature for his
bed. A Procrustean bed has since come to represent the imposition of uni-
formity through arbitrary or even violent means. The relevance of this ex-
pression for the argument I have sought to make is almost uncanny, even
more so since Simma utilizes it to champion normative universality in in-
ternational law. While I stand by the irony of our competing uses, I sub-
mit that this likely has something to do with the subjectivity of our posi-
tions.
173 To this extent the vocabularies act as ideologies in the technical sense of reifying,
making seem necessary or neutral something that is partial and contested (Kosken-
niemi, Politics, supra note 141 at 12).
174 Said, Culture and Imperialism, supra note 2 at xx.
175 Simma, supra note 83 at 297.
