A review of China Mieville, Between Equal Rights: A Marxist Theory of International Law (Brill, Historical Materialism book series, 2005), Euro 69
Did Tony Blair break international law in his support for the American invasion of Iraq? Could he be successfully prosecuted in an international court? As evidence accumulates of the murky dealings that led to war more and more people are coming to the conclusion that there is a legal case to answer. China Mieville would disagree, not because Blair’s actions weren’t ‘criminal’, but because international law does not work in this way. Moreover it is an illusion, he argues, to think that it could ever be made to function in a fundamentally different way.
Mieville will be well known to readers of this journal as a leading writer of science fiction in the UK. Here he pioneers something quite different – the Marxist critique of international law. The result is a significant book which, if parts are not for the fainthearted, nevertheless establishes some very important ideas that will influence not only the debate about Iraq and other Western interventions but the whole approach to international law.
An obvious question to those who want to see Blair in court is, who would arrest him and try him? But even if this could be answered it by no means follows that there is a strong legal case against him. This is not simply because of the ambiguities of the evidence but also the ambiguities of the law itself. This does not mean that Blair was right. It means that trying to condemn him in terms of international law is not the right way to attack him. Mieville points out for example that if there is ambiguity in the law about Iraq there might well be other wars which were less ambiguous in law but no less objectionable politically. But if the argument is left simply at the level of law then we might be forced to support them. The same applies to Iraq. No one has put the legal doubts about Iraq more eloquently than Robin Cook, but suppose for a moment (a fantasy!) that these were tested in some international court and there was found to be no case to answer. Would Cook then hold his hands up and say, ‘I was wrong and you were right Tony, it was legal, I should have supported you…’? As Mieville puts it, ‘A lawful war is not necessarily a just, prudent or humanitarian war.’
A supporter of international law would argue that Blair and Bush would have to be found guilty because the evidence and law to interpret it is so clearly against them. But Mieville suggests that this is not the case at all. Any state could find a basis in law for almost any action, because ‘for every claim there is a counter-claim, and legalist opposition to war is therefore ultimately toothless’.
Why should this be so? Three main positions commonly influence the discussion of this problem. Realists see the basis of global relations in the clash of state power. They are sceptical of ideas like globalisation and sceptical of the idea of international society. For them international law is no more than ‘a moralistic gloss on power politics’. It plays a useful role in obscuring the extent to which power is still the central determinant of how the world works. If a conflict emerges between the ‘gloss’ and state needs then realpolitik dictates the impotence of international law before power.
Against this supporters of international law argue that it exists above states and can therefore constrain their actions. It must represent some natural conception of what is right or it must develop into a rational set of rules that states can be persuaded to agree to. In either form it can be a force of stability and progress. If this is not yet fully the case then this is because the law needs to be further strengthened and then enforced.
The third and most critical view is associated with the left. This is less idealistic. It largely accepts the role of power and it looks at the way in which all law is conditioned by social interests and not least capitalist interests. But it still aspires to use law for progressive ends. Law, writes Susan Marks, is ‘a strategic tool, which can be used for both good ends and bad ones, to constrain violence and to legitimise it’. The task for the left is to struggle to use and expand this space.
Mieville recognises the importance of this critical approach to the understanding of law but he argues that it does not go far enough. It especially fails for international law. This is not because international law is not real law (as a realist might suggest) and can therefore be dismissed. International law is essential to the way global capitalism works. When, for example, Robin Cook writes that ‘for the neo-conservatives around George Bush it was a guiding principle that the US should undertake no policy that conferred validity on the concept of international law’ (Guardian, 25 March 2005) he is simply wrong. The US wants and needs international law – consider the issue of patent protection or intellectual property rights, and so on. Yet it also needs its own freedom of manoeuvre. Because the US is the world’s most powerful state it has a greater capacity to manage and twist things to its own advantage, but all states reflect this ambiguity and thus so does international law. Mieville notes, for example, that all states have a right to exist and war is only justified in terms of self-defence, but he also notes that there is an equally long history in international law where (and this must give Blair comfort) ‘great powers have always asserted a right of intervention in the affairs of small countries’.
To understand why this is we have to appreciate how international law emerges at the intersection of two processes. One was the development of the nation-state system, the other was the rise of capitalism. Mieville argues that these are not separate or autonomous processes but developments that fed off and supported one another. He thus has much to say of historical interest on the way in which law developed in the context of the shift from feudalism to capitalism and the nature of that shift. But his central theoretical point is that capitalism is a system of both commodity competition and inter-state competition and this must be reflected in both the existence and the ambiguity of the international order and its legal expressions.
One thread here is the contribution of the great Soviet legal theorist Evgeny Pashukanis before he became a victim of Stalin. Mieville builds on his analysis to show the role of commodity production in the development of law. The rise of law, Mieville suggests, has to be understood in the context of ‘market relations generalising globally, in the transition to capitalism’.
Because capitalism is a global system of commodity production organised through competing states, international law can only partially contain states. Inter-state competition is also the instrument through which international law develops. Demonstrating this involves Mieville in a valuable historical analysis of the way international law evolved in the context of colonialism, imperialism, unequal treaties and the like. International law was not only a means by which global capitalism incorporated non-capitalist parts of the world; it was also an expression of the dominance of the powerful imperialist nations. Thus those supporters of international law who try to counterpose it to imperialism misunderstand its historical roots – imperialism made international law, and international law helped make imperialism and it continues to do so today. ‘Coercive political violence – imperialism – is the very means by which international law is made actual.’
International law cannot therefore transcend the system which gives rise to it. The legalistic argument is not only wrong because it cannot work. It is also wrong because those who support it fail to reflect on why international law is so ambiguous and limited. As capitalism changes so will international law, but it cannot be the means to overcome the major contradictions of the system from within. In this sense, says Mieville, international law is ‘fundamentally unreformable… I see no prospect of a systematic progressive political project or an emancipatory dynamic coming out of international law.’ This is an important conclusion based on a deep and impressive analysis of the law, its origin and history and current state and it makes a major contribution to the way we think about the world. It is well worth ordering through your library.