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Journal of the Communist Party of Australia

ISSUE 64April 2017

On the illegality of war

Part 1

Editorial Note: This article appears in multiple Parts; this Part 1 contains Sections I-III as described below with Sections IV-VI to be published in later issues.

I. Introduction

In its quest to secure the predatory interests of transnational capital through the political and economic subjection of the world, imperialism baulks at no strategy to undermine the national independence and sovereignty of states. The imperialist powers, primarily the United States, Britain, and the European Union, variously sponsor terrorism, uprisings, coups (Syria, Libya, Ukraine), outright military assaults (Afghanistan, Iraq), or combinations of these and other strategies (Libya, Syria) to subvert the independence of states.[1]

The imperialist powers appear supremely unconcerned about complying with international law when they engage in such aggression, and ultimately they are not constrained by legal considerations. Short of this final position however, the imperialist powers strive to achieve an imprimatur of legality for their actions, because they have a vested interest in maintaining the system of international law which is part of the apparatus that ensures their global domination. Thus there have been the imperialist powers’ efforts to develop and incorporate in international law various interventionist doctrines to legally justify their aggressions against other states, such as humanitarian intervention and anticipatory self-defence.[2] These attempts are explored in this paper with particular reference to the 2003 war against Iraq.

It is necessary then for progressive forces to engage with questions of the legality of the imperialists’ aggressive actions under international law. Engagement with legal questions, however, should not simply be considered as a means to expose the dishonesty and hypocrisy of the imperialist powers in their acts of aggression. It also has larger significance.

A dialectical understanding of international law recognises that international law can be and should be appropriated to help further causes that advance the economic, social, and political liberation of the world’s peoples and consequently progress towards socialism.

In addition to this introduction, the article contains five Sections. Through a consideration of Marxist writings (both classical and in recent legal scholarship) on law generally, international law specifically, and the state – Section II examines the nature of international law and aspects of its history. There is particular reference to commodity-form theory, the base/superstructure dichotomy, and the concept of the withering away of law and the state. The conclusion is reached that ideological struggle by progressive forces and the non-imperialist countries for a version of international law that helps counter the globalisation of transnational capitalism and which furthers the cause of economic, social, and political advancement for the overwhelming majority of the world’s population, is a necessary element of the revolutionary process. Not as a substitute for other forms of struggle, but as one expression of the larger social and class struggles.

International law evolves socially through the broadest interconnection between, and complex interaction of, the different sections of national and international society, particularly in ideological, political, class, and national struggles. This evolution is facilitated by international law’s peculiar form of apparent neutrality and autonomy, and history shows that as a result of these formative pressures international law is susceptible to modification and transformation. Though at base it serves to maintain the status quo, international law has helped effect progressive change, including contributing to the success of the de-colonisation movement after the Second World War and advancing the cause of economic re-distribution in favour of developing countries, and has been changed itself in the process. Section III therefore considers how its malleability renders international law of vital importance to the struggle against war.

Section IV considers International law as a contestable realm. One of the sharpest expressions of the ideological conflict between reactionary and progressive forces over interpretations of legality has been the attempt by the leading imperialist states to overturn the post-Second World War international consensus on the prohibition on states waging aggressive war against other states, as enshrined in the United Nations Charter. The corollary of such a development, should it succeed, would be to create a world in which aggression by the imperialist powers against other states is legally legitimate.

In this context there is a pressing imperative that progressives and the non-imperialist states argue for their interpretations of legality and in particular assert that the existing fundamental prohibition on the use of force by states against other states in international law is the correct legal position. For that reason, Section V offers a proposal for an opinio juris for anticipatory self-defence of nations. There is the potential here to strike a blow against the imperialists’ ceaseless drive to war, such as evident in the US-led preparation and planning for war against China.

Section VI concludes.

II. Marxism and law

Marx said that the “legal and political superstructures” of society arise on its economic foundations.[3] Within Marxist legal scholarship, however, there has not been universal agreement that law is superstructural in nature; some see it primarily as a constitutive part of the economic base of capitalism. The question – base or superstructure – is of real significance for Marxists. If law is superstructural, evolving through complex social processes, then it is malleable and capable of being transformed, including to serve as a medium for enhancing the capacity of progressive social forces and for helping effect incremental advancement in the material conditions of society. If it is a constitutive part of the base, however, then it arguably follows that any meaningful practical contribution law would be able to make to incremental, pre-revolutionary, social progress, must necessarily be limited as being intrinsically counteractive.

The essential question then is whether law and considerations of legality have a useful role to play in Marxist revolutionary strategy?

A. Base or superstructure: The “commodity-form” theory of law

The “commodity-form” theory of law[4] espoused by the early Soviet legal philosopher and scholar, Yevgeny Pashukanis, and defended and elaborated upon in recent years by Miéville,[5] argues that law in its embryonic form is an integral part of the base in capitalist society.

The legal form is said to be intrinsic to the commodity exchange relations fundamental to capitalism. The theory holds that in the exchange of commodities, the parties to the exchange are regarded as both owners of private property and formally equal to each other – enabling the free exchange of commodities between them. The legal form is “the necessary form” of this relationship.[6] Implicit in this exchange relationship is contestation, and law is said to develop as the formalisation of the method of dispute settlement in exchange, ensuring respect for each party’s sovereignty and equality. For example, contracts entail the formal mutual recognition of equal subjects giving life to the abstract essential legal relationship. Law as a regulatory mechanism becomes generalised in an economy based on commodity production.[7]

According to commodity-form theory, the development of international law proceeded on similar lines: from the need to regulate commodity exchange relationships between organised groups, through the development of the system of sovereign states which are “intrinsically constituted” by the legal forms of these exchange relationships – being property owners writ large, therefore necessarily capitalist, and formally equal to each other.[8]

Notwithstanding its recognition that the legal form becomes visible and “actualises” in the legal superstructure – via the medium of law – commodity-form theory concludes that, given its essential quality in the commodity exchange relationship, the legal form is not part of the superstructure of capitalist society but part of its economic base.[9]

B. Against commodity-form theory: The social evolution of law

For commodity-form theory then, law is in effect indivisible from capitalism and not amenable to modification, short of revolution. Criticisms of commodity-form theory’s fundamental identification of the legal form with commodity exchange relations and the implications of this, include that it: fails to see law as changing with the development of productive relations; reduces different social relations to a “single, static and illusory” legal form; and, sees any legal form as necessarily bourgeois.[10]

In contrast to commodity-form theory, Chimni expounds the connection between the development of law and the development of capitalist relations of production. Chimni explains the development of international law as being closely related to the actual historical development of the productive forces of capitalism and its global expansion. Ultimately determined by the development of the dominant capitalist mode of production, international law is a system through which states seek to realise the interests of particular groups and classes. In the context of supranational capitalism – with its world market and international division of labour – these interests, Chimni concludes, are “sectional global interests.”[11] In this view, it is not that the enabling and regulation of commodity-exchange relations between states is not part of the function of international law, it is that international law is not (in contrast to the commodity-form view) confined to that narrow purpose.

Certainly Miéville does delineate a link between international law and the development of capitalist relations of production, conceding that the relations of international juridical equality are “actualised according to what is ultimately a class logic, rather than a market logic.”[12] Again, at another level, commodity-form theory draws a distinction between the legal form which it sees as part of the material base of society and evolved law which it identifies as necessarily manifested in the superstructure (eg court proceedings).[13] However, despite its view that law in its evolved state is distinct from the legal form, for commodity-form theory law never really transcends the legal form in a functional sense.

For commodity-form theory, the decisive factor determining the role of international law is the fact that states stand in relation to each other as capitalist states in the international market place, this means international law’s only real function is to mediate that exchange relationship. The most dramatic manifestation of this is the role of international law as facilitator, through its institutions and mechanisms, of national states using armed force to resolve their disputes and otherwise achieve their ends. This translates into war and imperialism. For Miéville, modern imperialism and its violence inevitably follows from the contestation inherent in exchange relationships. International law, premised as it is on the principle of the sovereignty of states, assumes the right of states to resort to violence to enforce their claims in the absence of any one state to act as “final arbiter”.[14] In a militarily and politically unequal world, the more powerful states invariably win the contest.

“A world structured around international law cannot but be one of imperialist violence”, concludes Miéville.[15]

That international law acts as the agency of militarily aggressive imperialism in this interpretation, points to its servicing of the predatory activities of finance capital: the exploitation and acquisition of ever greater resources and market share. This role is qualitatively different to the function of regulating international exchange relations (even if the outcome is the same) because it is actuated by the production and financial demands of mature capitalism, rather than just being incidental to the exchange relations function. Miéville even acknowledges Lenin’s recognition of the penetration of finance capital into the state and the determinative impact this has on the geopolitical strategies of the imperialist states. However, despite what the recognition of international law’s role in imperialism implies for understanding international law’s development, commodity-form theory is shackled by its basic perception of the role of law. Speaking of imperialist violence, Miéville says:

[T]his violence at the hands of the juridical subjects themselves is the violence of the market, of the commodity and of the legal form, but it is not class-violence. The necessity of coercion inheres in the exchange of commodities, not on a particular mode of production and exploitation.[16]

Bound by its complete identification of law with commodity-exchange relations, commodity-form theory is incapable of applying a dialectical understanding to the reality of law. It cannot recognise the fact that law, including international law, changes over time in complex interaction with the widest range of economic and non-economic factors.[17] Rather it suggests there is some mysterious process of transubstantiation by which law is indissolubly one with the commodity-exchange relationship, as giving actual expression to the legal form, which, in the theory, is both an essential quality and circular, self-referential description of that relationship. Ultimately, it is the confusion of form with content.

In expounding that the legal form is part of the base in capitalist society, Miéville places weight on a passage from Capital in which Marx says the “juridical relation” (the legal form) “is a relation between two wills which mirrors the economic relation. The content of this juridical relation ... is itself determined by the economic relation.” (Miéville’s emphasis). According to commodity-form theory, this demonstrates that Marx saw mutual recognition of formal (legal) equality/property rights by property owners (law’s foundation), as being intrinsic to the process of commodity exchange.[18]

To conceptualise as legal the elemental recognition by property owners of each other’s property rights and equal status is understandable – implying as it does recognition by property owners of a mutually acceptable regulatory foundation for their systematic engagement in commodity-exchange. However, exchange can only meaningfully occur – products brought to market by their owners be transformed into commodities with exchange values – by there being a “universal equivalent” to enable the magnitude of values to be computed. The universal equivalent is money and it facilitates “commercial intercourse”; the realisation of exchange value. The acceptance of the universal equivalent – money – is socially determined. In the same section of Capital quoted by Miéville above, Marx described this process:

The social action of all other commodities, therefore, sets apart the particular commodity in which they all represent their values. The natural form of this commodity thereby becomes the socially recognised equivalent form. Through the agency of the social process it becomes the specific social function of the commodity which has been set apart to be the universal equivalent. It thus becomes – money.[19]

This elaboration of the context necessary for meaningful commodity exchange to take place is pertinent to a proper understanding of the development and role of law, both domestically and internationally. Just as money emerges through society sanctioning it as the gauge of value to facilitate commodity exchange, so law evolves through social processes. These involve the broadest interconnection and interaction between the different parts of society at national and international levels, in particular their interaction in different forms of struggle – ideological, political, class, national. The dominant mode of production is the decisive context for shaping the development of law, but law is not a constitutive element of that mode, rather it is part of the superstructure built upon it.

The diversity of law and its functions attests to its historical social evolution and its having a qualitatively distinct role from that of simply vindicating property rights in commodity-exchange. Thus superstructural, the legal system regulates all aspects of life of society in a mesh which primarily responds to and facilitates the operation of advanced capitalism. Laws regulating development, environmental protection, and industrial relations, for example, attempt to reconcile and manage contending social interests. Laws protect the proprietary interests of large corporations (eg trademarks law), including such interests conceptualised as “national”. Laws facilitate the mobilisation of capital and manage its tendency towards concentration (eg laws in relation to takeovers and financial regulation). Some laws have overlapping functions, such as those regulating foreign investment which have both capital mobilising and proprietary interest protecting roles. Finally, there is the whole body of international economic laws which provide the legal foundations for capital expansion and accumulation in globalisation.[20]

C. De-mystification of the rule of law

The recognition that law evolves through social processes allows for a broader Marxist understanding of the social and political function of law than that countenanced in commodity-form theory. Moreover, what occurs in the social superstructure is not independent of what occurs in the economic base, but this interconnection and interaction of the material base of society with its superstructure is complex and dynamic. Dialectical/historical materialism recognises there is reciprocity: ideas and institutions originate in the material conditions of society, but having arisen, and evolving socially, then effect “the development of the material conditions of the life of society.”[21] Social ideas and institutions such as those embodied in society’s legal superstructure do not simply reflect the material base of society, they also have motive force.

This understanding allows for a more subtle interpretation of the role of law than does commodity-form theory’s conception of law’s function – as being identical with the essential determinative role played by the legal form in commodity exchange. The more subtle interpretation holds, for example, that laws, though superstructural in nature, serve to direct the relations of production facilitating the development of ever more “complicated social structures”.[22] Society’s continuous development is seen to accord with the interaction between “productive activities and conscious regulations.”[23]

This interaction – both within the superstructure and between the base and superstructure – is cumulative, ongoing, and complex; and law continues to evolve through this process. Chimni noted in relation to international law, that its own “internal structure and dynamics [in part] ... shapes its content and discourse”.

Bolstered by principles such as formal equality between states and state sovereignty, and international and national mechanisms designed to enforce compliance with international obligations, international law has an appearance of neutrality and its rules some autonomy.[24] These ideas of state equality and a neutral and autonomous international legal system (and their counterparts at the national level), are propagated in the bourgeois ideology of the Rule of Law. It is important to note at this point, that modern international law crystallised in the sixteenth and seventeenth centuries as the system for regulating relations between European states emerging from feudalism to capitalism, particularly in their mercantilist interactions and early colonialist expansion and division of the rest of the world.[25] So the sovereign state vaunted in liberal ideology is a capitalist state.[26]

The seeming autonomous quality of international law influences the distribution and exercise of power in the international system. Chimni argues that while international law serves to maintain the status quo – “safeguard the interests of a coalition of dominant global social forces and states”, in a world of unequal distribution of power between states – it simultaneously acts as a constraint on the dominant states. Its apparently neutral and autonomous character, reinforced by compliance mechanisms, compels even the most powerful states to refer to international law in justifying their actions, and prevents them from “openly flouting” its authority.[27] Powerful states are wary of undermining the legitimacy of international law given its primary role as a defender of their interests, but also, it would seem, in recognition of the potency of the idea of the Rule of Law in the international system.

This contradictory operation of the Rule of Law ideology demonstrates the potential both for the legal system to be made to serve a progressive political function and its malleability through social evolution. Thus Chimni explained that the entrenchment of the idea of the Rule of Law, resulted from the struggles of colonial peoples for independence and the concomitant struggles of democratic forces within the colonial powers. It encapsulates notions of formal equality between states and state sovereignty within a seemingly neutral and autonomous international legal system. Chimni concludes:

[T]he idea of the rule of law is not a vacuous one in the contemporary international system. It is not merely an ideological device which is manipulated by powerful states to their advantage. It has real significance. [28]

Implicit in this view, is the conclusion that powerful states are to some extent restrained by the possibility of exciting the wrath of the world’s peoples from baldly ignoring international law,[29] and that the meaning of the Rule of Law has undergone some transformation.

D. Law generally

In his call for demystification of the Rule of Law ideology, Collins effectively pointed to one way for Marxists to think about the process of transforming international law. Collins discussed how the bourgeoisie use the ideology of the Rule of Law to prop up their class rule.[30] The Rule of Law ideology, with its notions of state neutrality and the sovereignty of law, enables the legal system in capitalist societies to be characterised as being constituted by concepts of formal justice (the law applies equally to all) and the autonomy of legal thought (legal officials and courts apply legal rules impartially according to neutral principles via juridical logic) – undermining “any claim that [the state/legal system] is an instrument of class oppression”.[31] Laws and legal practices in capitalist societies do in fact comply with the stated attributes in a formal sense.

Characterised and constituted in these ways, law under capitalism serves to help maintain capitalist class rule. For example, working class victories in the area of progressive legislation confirm the image of legal neutrality, in turn leading the working class to interpret the liberal state “as an impartial arbiter between conflicting interests ...”[32]

Marxists, of course, do not accept the bourgeois notions of formal justice and the autonomy of legal reasoning at face value. Collins argued for demystifying the Rule of Law ideology. He suggested a number of ways in which Marxists may approach this task, including: ensuring that collective struggles transcend concerns for individual legal rights and justice according to law; undermining the ideal of formal equality – eg by highlighting that the poor cannot afford to pay for legal representation in court; and, examining the material origins of laws, revealing that the bourgeois ideological interpretations of reality they contain “are contingent upon the maintenance of a mode of production which necessarily involves class exploitation.”[33]

This argument for Marxists engaging ideologically with the Rule of Law idea is also implicit in the recognition that the Rule of Law in the international sphere has been shaped by the historical struggles of oppressed peoples and democratic forces against colonialism. It is an argument that recognises that the forms of law are superstructural and susceptible to ideological appropriation.

By contrast, commodity-form theory sees nothing to be gained by progressive forces struggling for their versions of international law, because, for that theory, international law only exists as a manifestation of capitalist commodity-exchange relations from which it is effectively indivisible. This ultra-leftist view sees no possibility of transforming international law or modifying its operation short of revolution. There is no potential for “systematic progressive” advance through international law, says Miéville:

To fundamentally change the dynamics of the system it would be necessary not to reform the institutions but to eradicate the forms of law – which means the fundamental reformulation of the political-economic system of which they are expressions.[34]

E. The “withering away” of law

For commodity-form theory, the complete identification of law with capitalist commodity-exchange relations precludes any notion of a different form of law being created outside of capitalism. For example, Pashukanis could not accept there was such a thing as proletarian law in the Soviet Union. Reinforcing his rejection of the idea of socialist law, was Pashukanis’s understanding that, according to Marxism, law would wither away under socialism.[35]

What Marxism means by the withering away of the state and, with it, law, is important to a consideration of questions about the correct strategic/tactical approach for Marxists to take towards law. Especially, whether any particular approach that might be taken could be counter-productive to progressive advance by being reformist or diversionary.

One sense in which the Marxist idea of the withering away of law is understood is that, with the unfolding of the class struggle through the inevitable and increasing confrontation of the proletariat with the exploitative reality of the material conditions of its existence, the liberal version of the state and law will be exposed as fraudulent and be fatally undermined. According to the religiously inspired notions of liberal humanism, law and the modern state realise, universalise, and politically emancipate the abstract individual. This version of the state and law obscures the reality of capitalism – with its “forms of factual subordination (capitalist/worker, man/woman)” and premised on maintaining the primary right of private property – by claiming that all in society enjoy equality as citizens. The realisation in experience that this equality is illusory, will result in the working class challenging the system of private property and its political and legal superstructure causing it ultimately to collapse.[36]

The idea that the state and law is fundamentally incompatible with communism in its higher phase, is also expressed in the argument that the Marxist theory of alienation provides for the state and law (conceived of here as coercive systems) withering away. The state and law become unnecessary and wither away in communist society when there is achieved the reconciliation of the “conflicting demands of individuality and community”.[37]

In considering the Marxist understanding that the state and law will ultimately disappear, it is important to avoid crude simplification. It will not automatically happen with the revolutionary seizure of state power by the proletariat, but will necessarily require the politically conscious involvement of the people in deliberate social transformation over time thereby ultimately removing the basis for the state and law.

In The State and Revolution, referring to the writings of Marx and Engels, Lenin explained that the capture of state power by the proletariat means the taking of possession of the means of production from private individuals and converting them into the common property of society, but that “this does not abolish ‘bourgeois law’...”. In this first phase of communism – socialism – the continued existence of bourgeois law is seen in the ostensibly equal distribution of products to all. Such distribution in reality favours some over others, eg people with fewer dependants receive the same amount of products as those with more, because the liberal legal principle of equality of right[38] continues in operation.[39]

While that aspect of the state and law concerned with class suppression will be the first characteristic to disappear with the abolition of capitalist class rule,[40] the withering away of the state and law under socialism will be a “protracted” process dependent on the development of the forces of production that will lay the material basis for the fulfilment of the objective of ensuring that the needs of all in society are met. Importantly, Lenin warned against a utopian outlook, stressing that it was impossible to predict either how long or what “concrete forms” the withering away process would take, and that it was not, as a practical matter, part of the immediate communist program.[41]

Indeed, far from rapidly disappearing, the state and law, Lenin made clear, will play pivotal roles under socialism in overseeing the development of the socialist economy, in particular of its productive capacity.[42]

Lenin indicated that the withering away process would involve the active participation of the engaged citizenry of the socialist society. Just as “the formal recognition of the equality of all citizens, the equal right of all to determine the structure and administration of the State” in bourgeois democracies facilitated the rallying of the proletariat as a revolutionary class against capitalism and, in turn, the establishment of a more democratic state in which the working class hold power, so socialism will further society’s development by enabling mass participation of the population in governing the state, ultimately opening the door to the state’s “complete withering away”.[43]

The key point here is the decisive part played by the people through the machinery of the state and law, in the conscious transformation of society. Implicit in this identification of the role of an active citizenry under capitalism and socialism, is also the recognition that the superstructure of any society is malleable. Law, the state, and society are transformed by the struggles and ideological and political engagement of the people.

III. Dialectical appropriation of international law

The dynamic nature of history means that law is open to being changed, and just as we expect law to be transformed under socialism, so it is susceptible to modification under capitalism. Commodity-form theory, however, with its perception of the fundamental determinative role of the legal form, holds that law is effectively immutable. The evidence of history denies this. Many writers have elucidated how international law has been used in concrete historical circumstances to effect progressive change, and, reciprocally, has itself been further transformed in the process.

The history of the principle of national self-determination, a contribution by the Soviet Union to international law, demonstrates this. In the wake of the Bolshevik revolution, the Soviet Government recognised the right to self-determination of Ukraine, Finland, Estonia, Latvia, and Lithuania, among others.[44] In the years after the Second World War, with its strengthened role in world affairs, the Soviet Union played a leading role in championing the cause of self-determination in the United Nations. It did this in the context of the break-up of the old European colonial empires and in alliance with the newly emerging independent states of Asia and the other socialist states. In these historical contexts, formal self-determination was invested with social transformative content: self-determination as a blow against imperialism and a foundation for genuine internationalism.[45]

The Soviet Union’s approach was consistent with the revolutionary imperative, as implicit in the Cominform’s recognition: that the world was divided into an “imperialist and anti-democratic camp” and a “democratic and anti-imperialist camp” led respectively by the USA and the USSR; and that the peoples of the colonies were rejecting colonialism, creating a crisis for the old system. The efforts of the Soviet Union and the other progressive forces led to the entrenchment in international law of the principle of self-determination.[46] This found expression in Article 1(2) of the UN Charter[47] and in Article 1(1) of the International Covenant on Civil and Political Rights 1966.[48] In 1960 the Soviet Union had sponsored UN Resolution 1514 (XV) – the “Declaration on the granting of independence to colonial countries and peoples”. Following its adoption, Bowring points out, there was a series of other resolutions adopted by the UN which further developed this historical tendency towards legitimisation in international law of the anti-colonial struggles.[49]

The political and revolutionary significance of the incorporation in international law of the principle of self-determination was enormous. There was the UN’s consequential recognition of national liberation movements as the “sole legitimate representatives” of the peoples concerned; for example, the African National Congress and the Palestine Liberation Organisation. Self-determination then was hugely important for such movements in terms of their gaining “external legitimation and ideological self-empowerment”.[50] Bowring pinpoints the dialectical implications for international law too of this process: the “juridical form” of the self-determination principle (the norm in legal terms) became transformed by the self-determination struggles. This “thoroughly material” process represented “the subversion and appropriation of bourgeois legal norms ... .” The UN was qualitatively transformed too; becoming truly a forum giving an opportunity for less powerful states to have their voices heard.[51]

Chimni’s analysis of the dynamic interaction between international law and the social and political forces that shape it – recognises that sometimes these forces push it in a progressive direction, at other times in a reactionary one. His dialectical analysis recognises that international law at base serves the interests of the dominant class forces; its specific characteristics of apparent neutrality and autonomy enabling this because of the substantive inequality of states. For example, treaties delimiting their scope of action are concluded between states which are deemed to be formally equal in international law (via the legal principle of state sovereignty) but in reality the substantive inequality of states shapes the content of the agreements.[52]

However, history is made in class struggle, and in this context, it is the logic of international law’s quality of formal neutrality and autonomy – demanding that it not be simply beholden to the interests of powerful states – that exposes international law to amelioration and appropriation. Chimni identified that within the period of neo-colonialism under bourgeois democratic international law since 1945, there has been a “progressive phase” (the initial period) and a “regressive phase” (from 1975). The progressive phase was the period of decolonisation, and the universalisation of the state sovereignty principle gave the newly independent states a greater say in international affairs, facilitating their attempts to bring about substantive economic and political transformation internationally. For example, there was the adoption of the Programme and Declaration of Action on the New International Economic Order (NIEO) and the Charter of Economic Rights and Duties of States (CERDS). NIEO sought to inject into the traditional international law of distribution “elements of equity and justice”, as seen in the efforts of the newly independent countries through the United Nations Conference on Trade and Development (UNCTAD) and the Group of 77 to force the industrialised world to accept the principle of special and differential treatment (SDT) – aimed at giving preferential treatment to third world countries. In 1966 the General Agreement on Tariffs and Trade (GATT) was amended to include Part IV – “Trade and Development” – in the agreement,[53] which amounted to a formal commitment by the industrialised states to the SDT principle.[54]

Chimni also discussed how the progressive phase came under sustained attack from the mid-1970s – accentuated in the 1980s with the rise to power of the Thatcher and Reagan administrations in Britain and the United States – when there commenced the process of restructuring international law “to facilitate the globalisation process”.[55] The point is that international law is changeable depending on the balance of social forces at any particular time. International law is loaded with contradictions and potential.

Even Miéville acknowledged that potential for “emancipatory politics” was advanced through the post-war decolonisation movement’s insistence on self-determination and the universalisation of the principle of state sovereignty within the international system. However, ultimately he sees such potential as limited, arguing that the universalising dynamic that ended formal imperialism also “embedded modern imperialism”, through the universalisation of the capitalist state form and, therefore, the broadening and entrenchment of combative exchange relations between countries, in which, powerful states have the upper hand in the resolution of conflicts.[56]

Rather than taking a comprehensive view of international law’s development via the complex interactions between states and social forces, in which the stage of development of capitalist relations of production is ultimately the decisive determinant, commodity-form theory’s focus on exchange relations between states as the driving force of historical change in international law prevents it from understanding international law’s development in an all-round way.

Viewed dialectically, with globalisation and the further development of borderless transnational capitalism, the material conditions for the growth of international solidarity action among progressive movements is emerging which in turn will affect the development of international law, just as happened with the transformation of the self-determination principle in international law under the impact of the post-Second World War anti-colonialism movement. Today the common experience of rapacious and globalising capital – war, poverty, environmental destruction – and attacks on workers’ pay, conditions, unions, and industrial rights, and on democratic rights, public sectors, welfare, social services, and national sovereignty – is translating into burgeoning people’s movements of millions fighting “for freedom, democracy, workers’ rights, national independence, peace, the environment and socialism” across the world.[57] The international mobilisations against government austerity programmes and the effects of the global recession are examples from recent years.

Such international activism does utilise international law to achieve progressive outcomes, as is to be seen in the long-standing international solidarity campaign by maritime unions against Flag of Convenience (FOC) shipping. Shipowners have for many years utilised their ability to register ships in FOC states as a means of achieving low labour costs through the poor pay and third world working conditions imposed on FOC ships’ crews under the minimal regulatory regimes of FOC states. Globalisation has given impetus to this process through the effects of heightened competition, both between FOC states and between shipowners – the FOC states for the business of the shipowners who are compelled to seek the lowest regulatory cost to gain advantage over their competitors. One strategy in the anti-FOC campaign, led by the International Transport Workers’ Federation, is to assert the necessity for a “genuine link” between the real owner of a ship and the flag flown by the vessel, consistent with the United Nations Convention on the Law of the Sea requirement. Such a link does not exist in the case of FOC-registered ships.[58] This strategy exemplifies how progressive international activism will turn to international law as an avenue for achieving positive outcomes. Inherent in this strategic approach is the potential for activism to shape international law to serve progressive ends – to invest legal norms with progressive meaning.

While for commodity-form theory an incremental revolutionary strategy in relation to international law is ultimately pointless, Chimni by contrast calls for an “international legal strategy [to] form an integral part of a transnational counter-hegemonic project ... to form transnational alliances in order to resist the vision of globalised capitalism.” As we have seen, there are opportunities for such alliances to be formed between those whose interests and common struggles are against globalisation and who are the victims of predatory imperialism and against war, including left parties, the union movement, new social movements, consumer movements, spontaneous resistance, progressive governments, and the oppressed and marginal sections of the third world together with their counterparts in the North. Chimni argues that the participation of global progressive forces in the processes of international law-making and law enforcement, is also essential to their hopes of interrupting and thwarting “the reproduction of the relations of transnational domination”.[59]

Progressives need to use existing international law creatively and imaginatively “to further the interests of the ‘wretched of the earth’, even as we underline its class character.”[60]

[1] In 1915 Lenin wrote that capitalism in its imperialist stage strives to seize territory for the investment of capital and obtaining raw materials: “From the liberator of nations, which it was in the struggle against feudalism, capitalism in its imperialist stage has turned into the greatest oppressor of nations.” See Lenin VI, On Imperialism and Imperialists (Progress Publishers, 1973) pp 38 – 39.

[2] In more recent years, the imperialist powers have also relied on the “Responsibility to Protect” doctrine to legitimise intervention. That doctrine was utilised in the context of the 2011 NATO military assault on Libya, and again in Syria in relation to the United Nations Security Council’s authorisation of UN humanitarian agencies and implementing partners to use routes across Syria to provide aid: see UN Security Council Resolutions 2165 (2014) and 2258 (2015).

[3] See Bottomore TB and Rubel M (eds), Karl Marx: Selected Writings in Sociology and Social Philosophy, Pelican Books, 1976, p 67.

[4] Also described as the “commodity exchange theory of law”, see Collins H, Marxism and Law, Clarendon Press, 1982, p 108.

[5] Miéville C, Between Equal Rights: A Marxist Theory of International Law, Pluto Press, 2006.

[6]ibid., pp 78, 84, 91 - 93.

[7]ibid., pp 78 - 79, 86, 88.

[8]ibid., pp 130 - 137, 224, 289 - 293, 316.

[9]ibid., p 96.

[10] See Bowring B, “Positivism versus self-determination: the contradictions of Soviet international law”, in Marks S (ed), International Law on the Left: Re-examining Marxist Legacies, Cambridge University Press, 2008, p 150.

[11] Chimni BS, “Marxism and International Law: A Contemporary Analysis”, in Economic and Political Weekly, 6 February 1999, pp 337 - 339. Chimni identifies the different historical phases in the evolution of international law which correspond to phases in the development of global capitalism.

[12] Miéville, op. cit., p 293.

[13]ibid., p 96.

[14]ibid., pp 135 - 137, 286 - 289, 291 - 293, 316 - 317.

[15]ibid., pp 292, 319.

[16]ibid., p 292.

[17] In discussing Pashukanis, a shortcoming of the commodity-form approach identified by Collins was that its “crude materialism” did not allow for recognition of the role of social practices in determining conscious action, simply explaining all legal rules as “reflections of commodity exchange”, Collins, Marxism and Law, p 109.

[18] Miéville, op. cit., p 87.

[19] Marx K, Capital: A Critique of Political Economy, Penguin Books (ed), 1976, pp 178 - 181.

[20] Chimni BS, “International Institutions Today: An Imperial Global State in the Making”, 2004, 15, European Journal of International Law, 1 at p 7.

[21] Central Committee of the Communist Party of the Soviet Union (Bolsheviks), History of the Communist Party of the Soviet Union (Bolsheviks): Short Course, Foreign Languages Publishing House, 1939, pp 116 - 117.

[22] Collins, Marxism and Law, p 89.

[23] Collins, Marxism and Law, pp 89 - 90.

[24] Chimni, Marxism and International Law, p 338.

[25] Chimni BS, “An outline of a Marxist course on public international law” in International Law on the Left, p 58; Chimni, “Marxism and International Law”, pp 338 - 339. See also Miéville, Between Equal Rights, pp 203 - 214.

[26] And in co-existence “with the colonial state in an evolving capitalist world economy, [the capitalist state] indelibly mark[ed] the body of international law”; accordingly, the bourgeois/liberal version of international law does not allow for the reality of structurally determined “uneven development between states” under capitalism: see Chimni, “An outline of a Marxist course”, p 58.

[27] Chimni, “Marxism and International Law”, pp 338 - 339, 345.

[28] Chimni, “Marxism and International Law”, pp 338 – 339, 345. Here, Chimni notes too that the Rule of Law was something that “was far from being the reality for centuries in the sphere of international relations”, and that therefore to dismiss the idea of it is to “belittle” the anti-colonial and progressive struggles.

[29] While Chimni is conscious of the constraining effect of international law on the world’s powerful states, he reiterates that it primarily serves the interests of the powerful in a world where formal equality co-exists with material inequality: Chimni, “Marxism and International Law”, p 339.

[30] Collins explained the development of the Rule of Law ideology in terms of the bourgeoisie’s consolidation of its class rule in the struggle against the dominant classes of feudalism: through its instituting of the (apparent) sovereignty of the legal system to ensure (apparent) neutrality of the state, with laws determining who holds political power and how it is exercised – stifling feudal claims to privilege: Collins, Marxism and Law, pp 134 - 135. Collins can be criticised for not recognising the role that class struggle by subordinate classes had in compelling the relative neutrality of the state.

[31] Collins, Marxism and Law, pp 128 – 138. According to the Rule of Law ideology, “justice [does] not venture afield into questions of social justice involving the distribution of wealth and power”: p 135.

[32] Collins, Marxism and Law, p 138.

[33] Collins, Marxism and Law, pp 139 - 141.

[34] Miéville, Between Equal Rights, pp 316, 318.

[35] Miéville, op. cit., pp 98 - 99.

[36] Koskenniemi M, “What should international lawyers learn from Karl Marx” in International Law on the Left, pp 33 - 39. Marxism sees law, together with the modern state and human rights, as exemplifying the religious way of thinking of liberal humanism. In the underlying philosophy articulated by Hegel, it is the political life of the state that realises and universalises the abstract individual who is politically emancipated through universal human rights – conceptualised as being “transcendentally given”: pp 33 - 37.

[37] Collins, Marxism and Law, pp 120 - 121.

[38] This principle of equality of right “‘pre-supposes inequality’”: Lenin quoting Marx in Lenin VI, The State and Revolution: Marxist Teachings on the State and the Task of the Proletariat in the Revolution (Australian Socialist Party (ed), 1920) p 97.

[39] Lenin, The State and Revolution, pp 16 - 23, 97 - 99, 103 - 104; that “for a certain time not only bourgeois law, but even the capitalist State may remain under Communism ... is economically and politically inevitable in a society issuing from the womb of Capitalism”: pp 103 - 104.

[40]ibid., pp 98 - 99; “When, in the course of development, class distinctions have disappeared, and all production has been concentrated in the whole nation, the public power will lose its political character. Political power, properly so called, is merely the organized power of one class for oppressing another”: Marx K and Engels F, The Communist Manifesto (Penguin Books (ed), 1983) p 105.

[41]ibid., pp 100 - 104.

[42]ibid., pp 100 - 103.

[43] “When all, or be it even only the greater part of society, have learnt how to govern the State ... when all have learnt to manage, and really do manage, socialised production ...”, Lenin, The State and Revolution, pp 104 - 107.

[44] Bowring, “Positivism versus self-determination”, p 145.

[45] For Lenin, national self-determination was a revolutionary imperative in the context of bourgeois-democratic revolutions occurring in the Tsarist and other empires. He had argued that true internationalism, required “the freedom to secede”, he explained that historically the emergence of nation-states had provided the most favourable conditions for the development of capitalism; such self-determination in turn providing the foundation for the eventual “truly democratic, truly internationalist … free union between [nations/states]”, see ibid., pp 142 - 143.

[46] Bowring, “Positivism versus self-determination”, pp 158 - 160.

[47] The principles outlined in Article 1(2) include “respect for the ... self-determination of peoples”.

[48] The Article stipulates that: “All people have the right of self-determination ...”. This Article is identical to Article 1 of the International Covenant on Economic, Social and Cultural Rights 1966.

[49] Bowring, op. cit., pp 161 - 162. Bowring cites UN Resolution 1803 (XVII) of 1962 and Resolution 2105 (XX) of 1965, which sought to give practical expression to international law’s recognition of the right of peoples to self-determination by respectively providing for national sovereignty over natural resources and for material support to be given to national liberation movements.

[50] See Bowring, ibid., pp 162, 167.

[51]ibid., pp 167 - 168. Note Bowring cites Williams P, The Alchemy of Race and Rights (Harvard University Press, 1991) in reference to his conclusion about the “subversion and appropriation of bourgeois legal norms”.

[52] Chimni, “Marxism and International Law”, pp 337 - 339, 345.

[53] But not “hard legal obligations”, ibid., p 340.

[54]ibid., pp 338, 340. The arrival of the newly independent states had seen “relative democratisation of international law” which enabled them to attempt to pursue these programmes of substantive reform: Chimni, “An outline of a Marxist course”, p 61.

[55]ibid, pp 338, 341.

[56] Miéville, op. cit., pp 269 - 271, 291 - 292.

[57] Communist Party of Australia, Political Resolution adopted at the CPA 12th National Congress October 4-7, 2013: Active and united for a socialist Australia (New Age Publishers Pty Ltd , 2013) p 32.

[58] See “What are Flags of Convenience?” at the website of the International Transport Workers’ Federation.

[59] Chimni, “Marxism and International Law”, p 346.

[60] Chimni, “An outline of a Marxist course”, p 91.

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