Ntina Tzouvala, Capitalism as Civilisation: A History of International Law, Cambridge University Press, 2020. £85 hbk, £22.99 pbk, Cambridge Core.
RATING: 75
|
Buy this book?
|
Yes
|
'The idea that the non-European world was civilisationally inferior and that the influx of (Western) capital would remedy [its] shortcomings,' Ntina Tzouvala argues, 'has been constitutive of modern international law at least since its emergence as a distinct discipline during the last quarter of the nineteenth century' (1). In this context, ‘civilisation’ is seen 'not as a unitary legal concept lending itself to conclusive definition but as a mode of international legal argumentation'; and this pattern of argument ‘establishes a link between the degree of international legal personality that political communities are recognised as having and their internal governance structure, or to be more precise, their conformity with the basic tenets of capitalist modernity' (2).
However, there is a complication. Tzouvala identifies two 'seemingly contradictory positions' between which arguments resting implicitly or explicitly on the ‘standard of civilisation’ oscillate: 'On the one hand, there is scepticism, if not overt hostility, regarding the possibility of equal inclusion for non-Western, predominantly non-white political communities in the realm of international law, which rests on a deep-seated perception of cultural or racial inferiority. On the other hand, such inclusion is considered possible and desirable, and depends on the adoption of particular reforms by such communities that would ensure their conformity with the necessities of capitalist modernity. Therefore, the “standard of civilisation” creates a conundrum between exclusion and conditional inclusion' (2). In the first instance, in the realm of international law, all political communities are called upon to match their internal governance structure to the basic tenets of capitalist modernity, and to the extent that they do so, they are granted international legal personality. But within this mode of international legal argumentation, a logic of biology 'erects unsurpassable barriers against non-Western communities acquiring equal rights and obligations under international law based on some purportedly immutable difference between "the West and the rest"', while a logic of improvement 'offers a prospect of inclusion ... firmly conditional upon capitalist transformation' (2). Tzouvala argues that ‘this argumentative conundrum only becomes possible, plausible and even necessary in the context of imperialism as a specifically capitalist phenomenon’ (3), but adds, with passing reference to China and to global value chains, that ‘centre-periphery dynamics are not static, but dynamic, and ‘might be partly influenced by earlier patterns of imperial domination but are not reducible to them’ (3). And she goes on to say that
‘the inherent tendency of the capitalist mode of production towards extended reproduction both spatially and otherwise contributes to the spread of the institutions, legalities and techniques necessary for the establishment and reproduction of the capitalist mode of production. … In other words, capitalism constitutes a mode of production that knows no inherent limit to its expansion, be it geographical, moral or concerning the aspects of life (human and non-human alike) that cannot be subjected to the imperatives of capitalist accumulation. Long before twentieth-century Marxists, such as V. I. Lenin, Rosa Luxemburg or Samir Amin, started thinking systematically about imperialism, Karl Marx himself was profoundly interested in capital’s tendency for limitless spatial expansion: “The tendency to create the world market is directly given in the concept of capital itself. Every limit appears as a barrier to be overcome” [Marx 1973: 408]’ (3).
The first chapter sets out a ‘materialist method’ (7-19), then considers the relationship between capitalism, imperialism and international legal argumentation (19-35), concluding with an attempt to reconcile Marxism and deconstruction (35-42), and a brief overview of the text as a whole (42-3). Chapter Two then tracks the ‘standard of civilisation’ in the nineteenth century, Chapter Three focuses on the Mandate System in the inter-war period and the case of Iraq, and Chapter Four offers a case study of the role of international law in the case of South West Africa/Namibia. Chapter Five explores ‘civilising missions’ from Iraq to Syria and the ‘unable and unwilling’ doctrine. Chapter Six, ‘Thinking Through Contradictions on a Warming Planet’, is a brief conclusion.
The ‘standard of civilisation’, then, was ‘a historically contingent response to the need to make sense of and regulate a world shaped and reshaped by these dynamics of unequal, yet global, capitalist development’, and it was of its time, so influenced by ‘notably, a progressivist, linear outlook on human history, and an unconditional privileging of the historically specific legal and political infrastructure of European capitalism, as well as racial, gendered and sexual imaginaries of immutable difference and hierarchy’ (4).
Given the tendency of capitalism to expand without limits, the question that arises is this: how far does the ‘standard of civilisation’ itself act over time as an impediment to this process? Specifically, is its ‘progressivist, linear outlook’ permanently limited by its ‘unconditional privileging of the historically specific legal and political infrastructure of European capitalism, as well as racial, gendered and sexual imaginaries of immutable difference and hierarchy’? Tzouvala suggests that these influences ‘persist today’:
‘The structure of the standard might remain constant, but what precisely constitutes ‘civilisation’ relies on a wide range of evolving intellectual tools to construct and maintain its credibility; for example, the relative decline of explicitly (biological) racist justifications of inequalities of wealth and power influenced the specific ways the ‘standard of civilisation’ was articulated in international law. ‘Cultural difference’ started doing the argumentative heavy lifting, and ‘objective’ ways of differentiating amongst states based on their ranking in different indexes, their credit-worthiness, or their purported (un)willingness to deal with terrorism stood in for the explicit racialisation of whole populations and political communities. Furthermore, as the rise of feminism challenged the discipline’s open misogyny and sexism, making explicit references to female inferiority politically unsavoury, narratives of masculinity and femininity that demanded the reader to identify with the former also arose as responses to these changing circumstances’ (4-5).
The standard of civilisation, with its oscillation between contradictory/complementary logics of ‘biology’ and ‘improvement’, still structures international legal argumentation.
This is a subtle and engaging argument, but it is over-complicated, and in the end unconvincing. Specifically, close inspection of the case studies advanced does not support the idea of ‘oscillation between racialised or culturalist exclusion and conditional inclusion characteristic of the standard of civilisation’ (16). Openly racist/culturalist assumptions were widespread across the international law-making community in the nineteenth century and may well persist in some parts of it today. But very little of the material Tzouvala addresses under the broad heading of the ‘logic of biology’ actually involves such assumptions, or makes arguments for exclusion. Rather, it shows a persistent primary concern with the character of internal governance structures, which can be seen as depending overwhelmingly upon a single logic centred on ‘improvement’ which makes inclusion ‘firmly conditional on capitalist transformation’, and a practical threshold test of ‘readiness’ (my term). In all cases the issue is a judgement as to whether such legal and other institutions are in place as to lend confidence that the state in question is both willing and able to uphold the basic tenets of ‘capitalist modernity’, and if not, what temporary measures might be necessary to facilitate the expansion of capitalism anyway. This being so, Tzouvala’s invocation of racial, gendered and sexual imaginaries, which starts badly, needs at least to be tweaked to bring it into line with her empirical material.
Tzouvala opens her account of the ‘logic of biology’ (67-73) by citing various late nineteenth century authorities who apply explicitly racist criteria, but does not offer a close reading of any representative text. So, she cites James Lorimer, who held the Chair of Public Law at the University of Edinburgh from 1862 until his death in 1890, as asking ‘whether, in the presence of ethnical difference which for jural purposes we must regard as indelible, we are entitled to confine recognition to these branches of alien races which consent to separate themselves from the rest’ (1883: 98), but she does not explore his answer. Instead, she describes him here as ‘inadvertently summaris[ing] the oscillation that, I argue, runs through civilisation as a way of arguing about the distribution of rights and duties in international law’, and adds the general reflection that: ‘Lawyers arguing from the vantage point of civilisation registered this tension between supposedly indelible racial difference and social transformation worthy of recognition without being able to resolve it on an argumentative level’ (67, emphasis mine). This is the exact opposite of a careful or critical reading of a supposedly significant illustrative text. It plucks out a sentence that is far from capturing Lorimer’s approach; imposes a criterion – ‘oscillation’ - which appears to be alien to it; and makes no attempt to support the claim that in the two volumes of The Institutes of the Law of Nations, running to over 1,000 pages, he did not resolve the issue of the relationship between ‘indelible ethnical difference’ on the one hand, and the scope for mutual recognition and the construction of a ‘jural state’ (his term) on the other. In what follows she distinguishes between the idea that some states could never aspire to inclusion in the international legal order because of their racial or cultural character, and the contrasting view that such states could aspire to inclusion, but must first submit themselves to Western stewardship and ‘guidance’, and comments that it was ‘precisely at this point that the logic of biology slid towards the logic of improvement. If non-Western states were, indeed, children, the possibility of growing up could not be discounted, even by the most biologically minded jurists’ (72). The underlying views are inherently objectionable, whether grounded in racist or (as here) ‘masculinist’ perceptions, but there is self-evidently no ‘biological’ impediment to inclusion in the latter case. And if the sole criterion was a judgement as to whether a given state could (ever) be trusted to uphold the basic tenets of capitalist modernity, there is no paradox involved, or any ‘oscillation’ between contradictory and opposing principles, but rather just a threshold that some states may never reach.
And when Tzouvala turns to ‘Extraterritoriality [exemption from the laws of a particular state, and subjection to the laws of one’s state of origin] between the Logic of Improvement and the Logic of Biology’ (73-84), it turns out that what was at stake was the issue of protection for what Westlake called ‘the unfamiliar interests arising out of a foreign civilisation’ – where the standard of civilisation translated into property and related rights essential to carrying on business (civil, commercial, bankruptcy and patent laws, 77). In other words, extraterritoriality marked a situation in which the underpinnings of the emergent world market were not recognised or protected under local law, and where states whose citizens enjoyed extraterritorial rights were simultaneously imperialist powers and component parts of an as yet incomplete world market. Tzouvala summarises, regarding ‘semi-sovereign states’, that: ‘Their legal systems, which were understood to be the main benchmark of civilisational development, were not well-placed to protect the activities and life-worlds of Western capitalists’ (77). And she adds: ‘The basic idea was that extraterritoriality was an anomalous, temporary arrangement that would be lifted as soon as these countries became ‘fully civilised' by amending their legal, judicial and administrative systems to conform with the imperatives of capitalist modernity’ (78). The case of Japan confirms this: Tzouvala reports that ‘in an 1889 confidential note that recommended the continuation of extraterritoriality in Japan, the UK Foreign Office highlighted the lack of concrete assurances that all of Japan’s laws would conform with Western standards, as well as the lack of clarity about the reorganisation of the police and the function of the courts’. But
‘In fact, it was the example of Japan, which succeeded in abolishing the practice in a mere decade after the Foreign Office’s above-mentioned objections, that served as the ultimate proof of the purchase of this ‘logic of improvement’. Even before the abolition of extraterritoriality in 1899, Japan was considered the ‘poster child’ for successful internal reform according to the imperatives of ‘civilisation’, which proved that decisive adoption of the institutions of capitalist modernity could lead to ‘complete’ territorial jurisdiction’ (78).
Significantly, the three excerpts quoted above can be rewritten without reference to ‘civilisation’ without any loss of meaning: ‘Their legal systems were not well-placed to protect the activities and life-worlds of Western capitalists’; ‘The basic idea was that extraterritoriality was an anomalous, temporary arrangement that would be lifted as soon as these countries amended their legal, judicial and administrative systems to conform with the imperatives of capitalist modernity’; and ‘Even before the abolition of extraterritoriality in 1899, Japan was considered the ‘poster child’ for successful internal reform, which proved that decisive adoption of the institutions of capitalist modernity could lead to ‘complete’ territorial jurisdiction’. At best, invocation of ‘civilisation’ adds nothing. At worst, it breeds confusion.
Tzouvala goes on to say that ‘semi-peripheral international lawyers … largely accepted [the] “logic of improvement”, elevating capitalist modernity into the sole horizon of political transformation’ (83). By this point, and I think rightly, the ‘logic of biology’ has disappeared from view: ‘[t]he question boils down to how we understand imperialism and its relationship with international law’ (84). And she identifies in concluding the chapter class-based and racialised strategies on the part of non-Western elites that point to internal struggle around dispossession and primitive accumulation as central aspects of entry into the capitalist world market:
‘Adopting the legal and political institutions that had enabled capitalist accumulation in the West became a precondition for the enjoyment of equal rights and duties under international law. Within this framework, the efforts of non-Western international lawyers of the period to achieve juridical equality for their states can be re-read as the initiatives of national bourgeoisies to position themselves within the landscape of imperialism, rather than as instances of unqualified commitment to human equality. To the extent that inclusion meant the adoption of the institutions of capitalist modernity, the dispossession of Indigenous peoples and others was not an unfortunate by-product of an otherwise virtuous strategy, but the two were intrinsically linked’ (87).
Quite right. The idea of shared interests between pro-capitalist non-Western elites and their counterparts in and beyond Western international legal circles, or more grandly of a transnational class alliance committed to the expansion of the world market, proves a far better guide to the material examined than the notion of ‘oscillation’ between logics of biology and improvement to which Tzouvala continues to cling.
Chapter Three centres on the Mandate System set up by the League of Nations, the termination of the British Iraq Mandate under its aegis, and the consequent need to ‘determine what characteristics and reforms would suffice for a political community to be emancipated from the Mandate System’ (89). Tzouvala identifies three ‘epoch-making political shifts’ that worked against the partition and annexation of the former German and Ottoman Empires: US opposition; the impact of the Bolshevik revolution in Russia and the fear it provoked of the spread of communism; and the emergence of anti-colonialist, nationalist movements that ‘challenged the legitimacy and practicability of formal empire’ (92). In this context, the Mandate System emerged as a ‘scheme of international tutelage’ first proposed by Jan Smuts, the Prime Minister of the Union of South Africa. The account that follows is valuable, and illuminating, especially on the introduction of methods of standards and surveillance, and the emphasis (subsequently taken up by the World Bank in particular) on the production of a healthy and educated labour force (107-8, 114-18; cf. Cammack 2022). But nothing is added by the attempt to interpret it in terms of the evolution and transmutation of the ‘standard of civilisation’, and the convoluted idea that it continued to work away underground, while being rendered invisible by the turn in the ‘logic of improvement’ towards the stated concern for ‘welfarism’ (96), and a reliance on ‘technical evaluations, statistics and rankings’ (109).
The League Covenant that outlined the Mandate System described it as applying to ‘those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’ (cited 96-7, with emphasis added to ‘yet’). Three classes of mandates were created, A, B, and C (with those close to being recognised as independent states in the first group, those far from it and ‘administered under the laws of the Mandatory as integral portions of its territory, subject to … safeguards … in the interests of the indigenous population’ (101) in the third, and the rest in a ‘half-way house in between). Iraq was placed in the first group, and Tzouvala argues first that ‘the modalities of these differentiations were not the outcome of any ideational process, but rather of the strategic calculations and economic interests of imperial powers’, following Hammoudi’s argument that ‘the structure and content of the A Mandates are only explicable if we understand their important geostrategic location for imperialism as well as the then consolidating dependence on oil as the fuel of capitalist accumulation’ (2018: 81, cited p. 98). Second, she adds a few pages later that: ‘All political communities could achieve “civilised” status in theory, provided that they implemented the necessary reforms, which involved socio-economic transformation with a view to spreading market relations and the capitalist mode of production outside the West’ (102). And third, on the specific case of Iraq: ‘The question of Iraq’s emancipation and admission to the League combined thorny issues of legal subjectivity and political economy, including both the linking of independent statehood with the imperative of capitalist transformation and questions about the precise way new states would be incorporated into the global economy’ (109-110).
All this is clear enough, and it does not involve any ‘logic of biology’. However, in each case, adjacent statements offer a different view. First:
‘The basic structure of the mandate enacted the idea that mandated territories could at least, in theory, reach capitalism and modernity. However, they were not able to do so endogenously, but only through a period of subjugation and supervision by international actors. The Eurocentric idea that there was something inherent in Western culture, religion or racial composition (and their various combinations) that enabled or even necessitated the transition to capitalism, modernity and global domination was entrenched in the very structure of the Mandate System, as was its mirror image of the stationary East that could only be transformed through external guidance and coercion’ (98).
Second:
However, this was considered a rather theoretical prospect, as is evidenced by the fact that when the question of Iraq’s independence arose, the PMC was unprepared to deal with the issue. The ongoing relevance of the ‘logic of biology’ rendered the question of sovereignty for the mandates almost unthinkable at least in the present tense’ (102).
And third:
‘All sides of the argument found themselves proposing different combinations of ‘improvement’ and ‘biology’ in ways that did not control the eventual outcome of the political struggle, but did manifest the ongoing importance of ‘civilisation’ for international law’ 109.
In the first case, Tzouvala simply imposes some unsupported post-colonial tropes on her material, shifting in doing so from the idea that ‘spreading market relations and the capitalist mode of production’ beyond their imperialist heartlands depended upon the adoption beyond them of specific legal and institutional reforms (for which she provides plenty of evidence) to the much broader notion that some unspecified thing ‘inherent in Western culture, religion or racial composition (and their various combinations)’ was at play. In the second, she brings the ‘logic of biology’ back in, in defiance of the facts that the mandatory powers were confined to a minority of places on the PMC, ‘the League Assembly established its right to discuss the mandates in its first session and, having a permanent majority of non-imperial states, it developed a critical stance towards mandatory powers’ (104) and the British Mandate in Iraq, far from being a ‘rather theoretical project’, ended when the PMC and the Council of the League of Nations recognised its independence in 1932. The third statement simply re-imposes her pre-established interpretative grid, in defiance of any evidence to support it, while the ensuing discussion entirely supports the narrower argument initially advanced. The PMC ‘was adamant that the preparedness of a mandate for independence was a question of fact’ (110), and set out five criteria for independence (it must have a settled Government and an administration capable of maintaining the regular operations of essential Government services; it must be capable of maintaining its territorial integrity and political independence; it must be able to maintain public peace throughout the whole territory; it must have at its disposal adequate financial resources to provide for normal Government requirements; and it must possess laws and a judicial organisation which will afford equal and regular justice to all) (111). And Tzouvala argues that the functions of the envisaged state extended to ‘a minimum standard of state intervention in health, education and labour’ (114), and that all this is best understood in terms of Marx’s analysis of the destructive power of capital over labour if left unchecked, and the consequent need to manage ‘the normal reproduction of the working class a whole’ (115-6). In light of this, references to ‘the ongoing, unresolvable tension between the “logic of improvement” and the “logic of biology”’ (119-20), or to ‘the “standard of civilisation” as an argumentative pattern’ (125) and ‘the invisibilisation of the “civilising mission” and, thereby, its continuation’ (128) appear entirely gratuitous.
The remaining case studies – of the South West Africa mandate and the long road to Namibian independence and of ‘civilising missions’ from Iraq to Syria and the emergent ‘unable and unwilling’ doctrine – are the same: they are valuable and illuminating, but the central idea that the objective was to integrate states into the capitalist world market, well supported by the empirical evidence adduced, is in danger of being obscured by surrounding commentary on the ‘logic of biology’ and its ramifications. In the case of South West Africa/Namibia, originally placed in 1920 under a British mandate devolved by Britain to South Africa, the overall post-war context was ‘the determination of the Third World to prevent the annexation and also to use South West Africa as a means for attacking apartheid as a whole, the ambivalence and foot-dragging of the United States and the United Kingdom, and the intransigence of South Africa that sincerely saw itself as an island of ‘white civilisation in a savage continent’ (138; the phrase cited is from General (later Prime Minister) Smuts at the 1919 Paris Peace Conference). De facto annexation by South Africa after the collapse of the League of Nations was repeatedly challenged from 1946 onwards by the UN General Assembly and successive ‘Advisory Opinions’ by the International Court of Justice (ICJ), but without effect. In 1960 the Second Conference of Independent African States in Addis Ababa discussed and ratified a proposal brought by Liberia to bring a ‘contentious case’ (a case brought directly against another state), which, if successful, would empower the Security Council, under Article 94 of the UN Charter, to compel compliance with any Court judgement (149, and Gross, 1966). Liberia and Ethiopia, who had standing by virtue of being former members of the League and current members of the UN, brought the case jointly. Tzouvala’s argument that the case involved ‘a shift from opposition to racial capitalism to a narrow embrace of rights’ (140) slightly confuses the issues: the Court could only rule in accordance with international law, and the purposes and principles of the UN Charter. The Charter was explicit in upholding human rights for all, without distinctions of race, sex, language, or religion, but of course did not condemn capitalism as such. As she shows, Liberia and Ethiopia mounted a wide-ranging attack, centred on the (self-evident) claim that ‘South Africa had installed in the mandate a very specific form of racial capitalism in which racial segregation and subordination were inseparable from the exploitation of black labour and the dispossession of native land’ (150). In the circumstances, the 1971 judgement of the Court (following a 1966 decision not to hear the case at all, and a new process) did not either represent a shift, or offer a ‘narrow’ view of rights:
‘Under the Charter of the United Nations, the former Mandatory has pledged to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental rights is a flagrant violation of the purposes and principles of the Charter’ (cited p. 139).
Beyond this, though, the key issue at stake was that of labour. When the applicants ‘tried to mobilise the language of international law against the very imperial order that put it in place’ (153), they came up against the united commitment of the advanced countries/imperial powers, the United States included, to see labour in the developing/decolonising world put more effectively to the service of capital. As Tzouvala notes, the South African argument that ‘[a]part from the benefit of wages, the absorption of the Natives in a modern economy as regular workers had the advantage that it would gradually transform their traditional approach to work and inculcate in them new economic interests and attitudes’ (cited 154) accorded entirely with their thinking, and what is more, the wider view that ‘willingness and ability to participate in a capitalist economy either as a capitalist or as an obedient worker were of major importance for the determination of a group’s legal status’ (154-5) was a perspective widely shared by non-Western elites themselves, as reflected in the concluding lines of Chapter Two (87) cited above. To the extent that a shift took place, it was on the part of Ethiopia and Liberia, who ‘gradually developed a different strategy that decoupled racial discrimination from the overall structure of the economy, and rather focused on individualised harm’ (155). So the subsequent path to Namibian independence was entirely shaped by the ‘logic of improvement’, and when it came, in 1990, ‘the juridical scene had been set for its operation as a neoliberal state, a fact that was further reinforced by the embrace of neoliberal capitalism by SWAPO [the once radical South West Africa People's Organisation] themselves’ (164). There is a consistent logic here.
When she turns to the civilising missions of the twenty-first century from Iraq to Syria, Tzouvala argues that contemporary international lawyers still oscillate between the ‘logic of improvement’ and the ‘logic of biology’, maintaining that
‘this oscillation is due to international law registering the very real contradictions of imperialism. As capitalism expands globally it manifests its tendency to create both homogenisation and deeply situated differentiation, without being able to resolve the tensions between the two. Therefore, this argumentative persistence is due to both the practices of inheritance, socialisation and conformity within the profession and the material conditions of the world within which international lawyers operate and (unsuccessfully) attempt to mediate’ (168).
The focus is on two cases – the neoliberal reform programme launched by the CPA (Coalition Provisional Authority) following the invasion and occupation of Iraq in 2003-4 and the debate surrounding the ‘unwilling or unable’ doctrine. In the first, neoliberalism is understood as ‘both a set of ideas and an actually existing model of capitalist accumulation that “rests upon the idea of generalized competition and state intervention for the construction, guarantee and expansion of these competitive relations in an ever-increasing sphere of social co-existence, including the structure and functions of the state itself”’ (175, citing Tzouvala, 2016, pp. 120-21).
Quite so. But as Tzouvala shows, in this particular case the occupying authority did not seek at all either to build a state competent to guarantee competitive relations and generalised competition, or to create an environment characterised by competitiveness, but instead handed over whole areas of administration, reconstruction and enterprise to largely US monopoly concerns with ties to the Bush regime. This scheme was entirely antithetical to any early restoration of democracy, or to the construction of a government equipped to govern in conformity with the basic tenets of competitiveness. Tzouvala’s prefatory discussion of legal argumentation (169-71) and her invocation of the 2000 Report of the Panel on United Nations Peace Operations (184-5) distract from the specificities of the interaction of ‘neoliberalism’ and imperialism here, as does the invocation of the ‘logic of biology’ in the claim that ‘the mere fact that reform had to be imposed externally – be it from the United States or the United Nations – reproduced the idea that Iraqi society was a mixture of weakness and malevolence, uniquely incompetent to reform itself and to freely decide on the direction of such reform’ (171). It didn’t. It simply reflected that fact that Saddam Hussein’s regime was seen as a threat to US global power.
Finally and briefly, then, to the ‘unwilling or unable’ doctrine , which proposes that when a state is subject to an armed attack perpetrated by non-state actors based in the territory of another state, the “victim state” is entitled to use force extra-territorially in self-defence even if the actions of these non-state actors are not attributable to the “territorial state”, provided that the territorial state is “unwilling or unable” to stop such attacks’ (190). Whatever its merits, the discussion here moves away from the concern hitherto pursued with the ‘basic tenets of capitalist modernity’, which are prominent in the 1928 Island of Palmas case discussed at length (193-8), but not in the contemporary concern with the willingness or capacity of states to prevent armed attacks being launched from their territory. It would have been better left out.
Taking as a starting point Tzouvala’s reference to the tendency of capitalism to expand without limits, I asked at the start how far the ‘standard of civilisation’ itself acts over time as an impediment to this process. Specifically, was its ‘progressivist, linear outlook’ permanently limited by its ‘unconditional privileging of the historically specific legal and political infrastructure of European capitalism, as well as racial, gendered and sexual imaginaries of immutable difference and hierarchy’, reflected in ‘oscillation’ between logics of ‘biology’ and ‘improvement’? On my count, not at all, in that I score the relevant cases (leaving ‘unwilling and unable’ aside) as Logic of Improvement four, Logic of Biology nil (the ending of extraterritoriality in Japan, the termination of the British mandate in Iraq, the drawn-out transition from mandate rule to independence in South West Africa/Namibia, and the ‘neoliberal’ reconstruction of Iraq from 2003-4). One way of looking at this outcome is to say that the logic of improvement always trumps the logic of biology, so that the dominant logic is not one of civilisation, but rather that of capital itself – vindicating, of course, a strong line of argument that runs through Tzouvala’s account. Another way would be to tweak the argument, dropping the ‘standard of civilisation’ as an overt or covert point of reference, and say that what international legal argumentation privileged unconditionally was the expansion of capitalism without limits, that it generally saw the adoption of the historically specific legal and institutional infrastructure of European capitalism as the best means to this end, and that it claimed the right to require this on the basis of racial, gendered and sexual imaginaries of immutable superiority and hierarchy. I think that this is consistent with the cases presented. But note that when seen in this way (that is, with the emphasis on superiority rather than difference) there is no contradiction between the logics of improvement and biology, but they are, rather, mutually reinforcing, so that the idea of conundrums and oscillation between conflicting logics has to go. The resulting analytical framework is a good deal simpler than that proposed by Tzouvala, but it is entirely consistent with her many references to superiority/inferiority as underpinning ‘racist’ and ‘masculinist’ imaginaries and modes of thought and argumentation. It also makes it possible to argue, in the manner that Marx did when he suggested that capitalism initially depended upon auxiliary methods of accumulation before its own immanent laws kicked in and it was able to ‘stand on its own feet’, that in the long run the expansion of capitalism does not require and may even come to be hampered by such features.
References and further reading
Gross, Ernest A. 1966. ‘The South West Africa Case: What Happened?’, Foreign Affairs, 45, 1, pp. 36-48.
Hammoudi, Ali, ‘The Pomegranate Tree Has Smothered Me’: International Law, Imperialism and Labour Struggle in Iraq, 1917–1960 (PhD Thesis, York University 2018).
Koskenniemi, Martti. [1989] 2009. From Apology to Utopia: The Structure of International Legal Argument. Cambridge: Cambridge University Press.
Marx, Karl. 1973. Grundrisse. Penguin Books.
Miéville, China. 2004. ‘The Commodity-Form Theory of International Law: An Introduction’, Leiden Journal of International Law, 17 (2004), pp. 271–302.
Miéville, China. 2006. Between Equal Rights: A Marxist Theory of International Law. London: Pluto Press.
Parfitt, Rose. 2019. The Process of International Legal Reproduction: Inequality, Historiography, Resistance. Cambridge: Cambridge University Press.
Rasulov, Akbar. 2008. '"The Nameless Rapture of the Struggle": Towards a Marxist Class-Theoretic Approach to International Law', Finnish Yearbook of International Law 19: 243–94.
Tzouvala, Ntina. 2016. ‘Chronicle of a Death Foretold? Thinking about Sovereignty, Expertise and Neoliberalism in the Light of Brexit’, German Law Journal, 17 [Special Brexit Supplement], pp. 117–24.
Tzouvala, Ntina. 2020. 'The Ordo-Liberal Origins of Modern International Investment Law: Constructing Competition on a Global Scale', in J. D. Haskell and A. Rasulov (eds.), New Voices and New Perspectives in International Economic Law, European Yearbook of International Economic Law, Springer Nature, Cham, Switzerland.
Tzouvala, Ntina. 2022. 'International Law and (the Critique of) Political Economy', The South Atlantic Quarterly, 121, 2, 297-320.
McClintock, Anne. 1995. Imperial Leather: Race, Gender and Sexuality in the Colonial Contest. (New York/London: Routledge.
However, there is a complication. Tzouvala identifies two 'seemingly contradictory positions' between which arguments resting implicitly or explicitly on the ‘standard of civilisation’ oscillate: 'On the one hand, there is scepticism, if not overt hostility, regarding the possibility of equal inclusion for non-Western, predominantly non-white political communities in the realm of international law, which rests on a deep-seated perception of cultural or racial inferiority. On the other hand, such inclusion is considered possible and desirable, and depends on the adoption of particular reforms by such communities that would ensure their conformity with the necessities of capitalist modernity. Therefore, the “standard of civilisation” creates a conundrum between exclusion and conditional inclusion' (2). In the first instance, in the realm of international law, all political communities are called upon to match their internal governance structure to the basic tenets of capitalist modernity, and to the extent that they do so, they are granted international legal personality. But within this mode of international legal argumentation, a logic of biology 'erects unsurpassable barriers against non-Western communities acquiring equal rights and obligations under international law based on some purportedly immutable difference between "the West and the rest"', while a logic of improvement 'offers a prospect of inclusion ... firmly conditional upon capitalist transformation' (2). Tzouvala argues that ‘this argumentative conundrum only becomes possible, plausible and even necessary in the context of imperialism as a specifically capitalist phenomenon’ (3), but adds, with passing reference to China and to global value chains, that ‘centre-periphery dynamics are not static, but dynamic, and ‘might be partly influenced by earlier patterns of imperial domination but are not reducible to them’ (3). And she goes on to say that
‘the inherent tendency of the capitalist mode of production towards extended reproduction both spatially and otherwise contributes to the spread of the institutions, legalities and techniques necessary for the establishment and reproduction of the capitalist mode of production. … In other words, capitalism constitutes a mode of production that knows no inherent limit to its expansion, be it geographical, moral or concerning the aspects of life (human and non-human alike) that cannot be subjected to the imperatives of capitalist accumulation. Long before twentieth-century Marxists, such as V. I. Lenin, Rosa Luxemburg or Samir Amin, started thinking systematically about imperialism, Karl Marx himself was profoundly interested in capital’s tendency for limitless spatial expansion: “The tendency to create the world market is directly given in the concept of capital itself. Every limit appears as a barrier to be overcome” [Marx 1973: 408]’ (3).
The first chapter sets out a ‘materialist method’ (7-19), then considers the relationship between capitalism, imperialism and international legal argumentation (19-35), concluding with an attempt to reconcile Marxism and deconstruction (35-42), and a brief overview of the text as a whole (42-3). Chapter Two then tracks the ‘standard of civilisation’ in the nineteenth century, Chapter Three focuses on the Mandate System in the inter-war period and the case of Iraq, and Chapter Four offers a case study of the role of international law in the case of South West Africa/Namibia. Chapter Five explores ‘civilising missions’ from Iraq to Syria and the ‘unable and unwilling’ doctrine. Chapter Six, ‘Thinking Through Contradictions on a Warming Planet’, is a brief conclusion.
The ‘standard of civilisation’, then, was ‘a historically contingent response to the need to make sense of and regulate a world shaped and reshaped by these dynamics of unequal, yet global, capitalist development’, and it was of its time, so influenced by ‘notably, a progressivist, linear outlook on human history, and an unconditional privileging of the historically specific legal and political infrastructure of European capitalism, as well as racial, gendered and sexual imaginaries of immutable difference and hierarchy’ (4).
Given the tendency of capitalism to expand without limits, the question that arises is this: how far does the ‘standard of civilisation’ itself act over time as an impediment to this process? Specifically, is its ‘progressivist, linear outlook’ permanently limited by its ‘unconditional privileging of the historically specific legal and political infrastructure of European capitalism, as well as racial, gendered and sexual imaginaries of immutable difference and hierarchy’? Tzouvala suggests that these influences ‘persist today’:
‘The structure of the standard might remain constant, but what precisely constitutes ‘civilisation’ relies on a wide range of evolving intellectual tools to construct and maintain its credibility; for example, the relative decline of explicitly (biological) racist justifications of inequalities of wealth and power influenced the specific ways the ‘standard of civilisation’ was articulated in international law. ‘Cultural difference’ started doing the argumentative heavy lifting, and ‘objective’ ways of differentiating amongst states based on their ranking in different indexes, their credit-worthiness, or their purported (un)willingness to deal with terrorism stood in for the explicit racialisation of whole populations and political communities. Furthermore, as the rise of feminism challenged the discipline’s open misogyny and sexism, making explicit references to female inferiority politically unsavoury, narratives of masculinity and femininity that demanded the reader to identify with the former also arose as responses to these changing circumstances’ (4-5).
The standard of civilisation, with its oscillation between contradictory/complementary logics of ‘biology’ and ‘improvement’, still structures international legal argumentation.
This is a subtle and engaging argument, but it is over-complicated, and in the end unconvincing. Specifically, close inspection of the case studies advanced does not support the idea of ‘oscillation between racialised or culturalist exclusion and conditional inclusion characteristic of the standard of civilisation’ (16). Openly racist/culturalist assumptions were widespread across the international law-making community in the nineteenth century and may well persist in some parts of it today. But very little of the material Tzouvala addresses under the broad heading of the ‘logic of biology’ actually involves such assumptions, or makes arguments for exclusion. Rather, it shows a persistent primary concern with the character of internal governance structures, which can be seen as depending overwhelmingly upon a single logic centred on ‘improvement’ which makes inclusion ‘firmly conditional on capitalist transformation’, and a practical threshold test of ‘readiness’ (my term). In all cases the issue is a judgement as to whether such legal and other institutions are in place as to lend confidence that the state in question is both willing and able to uphold the basic tenets of ‘capitalist modernity’, and if not, what temporary measures might be necessary to facilitate the expansion of capitalism anyway. This being so, Tzouvala’s invocation of racial, gendered and sexual imaginaries, which starts badly, needs at least to be tweaked to bring it into line with her empirical material.
Tzouvala opens her account of the ‘logic of biology’ (67-73) by citing various late nineteenth century authorities who apply explicitly racist criteria, but does not offer a close reading of any representative text. So, she cites James Lorimer, who held the Chair of Public Law at the University of Edinburgh from 1862 until his death in 1890, as asking ‘whether, in the presence of ethnical difference which for jural purposes we must regard as indelible, we are entitled to confine recognition to these branches of alien races which consent to separate themselves from the rest’ (1883: 98), but she does not explore his answer. Instead, she describes him here as ‘inadvertently summaris[ing] the oscillation that, I argue, runs through civilisation as a way of arguing about the distribution of rights and duties in international law’, and adds the general reflection that: ‘Lawyers arguing from the vantage point of civilisation registered this tension between supposedly indelible racial difference and social transformation worthy of recognition without being able to resolve it on an argumentative level’ (67, emphasis mine). This is the exact opposite of a careful or critical reading of a supposedly significant illustrative text. It plucks out a sentence that is far from capturing Lorimer’s approach; imposes a criterion – ‘oscillation’ - which appears to be alien to it; and makes no attempt to support the claim that in the two volumes of The Institutes of the Law of Nations, running to over 1,000 pages, he did not resolve the issue of the relationship between ‘indelible ethnical difference’ on the one hand, and the scope for mutual recognition and the construction of a ‘jural state’ (his term) on the other. In what follows she distinguishes between the idea that some states could never aspire to inclusion in the international legal order because of their racial or cultural character, and the contrasting view that such states could aspire to inclusion, but must first submit themselves to Western stewardship and ‘guidance’, and comments that it was ‘precisely at this point that the logic of biology slid towards the logic of improvement. If non-Western states were, indeed, children, the possibility of growing up could not be discounted, even by the most biologically minded jurists’ (72). The underlying views are inherently objectionable, whether grounded in racist or (as here) ‘masculinist’ perceptions, but there is self-evidently no ‘biological’ impediment to inclusion in the latter case. And if the sole criterion was a judgement as to whether a given state could (ever) be trusted to uphold the basic tenets of capitalist modernity, there is no paradox involved, or any ‘oscillation’ between contradictory and opposing principles, but rather just a threshold that some states may never reach.
And when Tzouvala turns to ‘Extraterritoriality [exemption from the laws of a particular state, and subjection to the laws of one’s state of origin] between the Logic of Improvement and the Logic of Biology’ (73-84), it turns out that what was at stake was the issue of protection for what Westlake called ‘the unfamiliar interests arising out of a foreign civilisation’ – where the standard of civilisation translated into property and related rights essential to carrying on business (civil, commercial, bankruptcy and patent laws, 77). In other words, extraterritoriality marked a situation in which the underpinnings of the emergent world market were not recognised or protected under local law, and where states whose citizens enjoyed extraterritorial rights were simultaneously imperialist powers and component parts of an as yet incomplete world market. Tzouvala summarises, regarding ‘semi-sovereign states’, that: ‘Their legal systems, which were understood to be the main benchmark of civilisational development, were not well-placed to protect the activities and life-worlds of Western capitalists’ (77). And she adds: ‘The basic idea was that extraterritoriality was an anomalous, temporary arrangement that would be lifted as soon as these countries became ‘fully civilised' by amending their legal, judicial and administrative systems to conform with the imperatives of capitalist modernity’ (78). The case of Japan confirms this: Tzouvala reports that ‘in an 1889 confidential note that recommended the continuation of extraterritoriality in Japan, the UK Foreign Office highlighted the lack of concrete assurances that all of Japan’s laws would conform with Western standards, as well as the lack of clarity about the reorganisation of the police and the function of the courts’. But
‘In fact, it was the example of Japan, which succeeded in abolishing the practice in a mere decade after the Foreign Office’s above-mentioned objections, that served as the ultimate proof of the purchase of this ‘logic of improvement’. Even before the abolition of extraterritoriality in 1899, Japan was considered the ‘poster child’ for successful internal reform according to the imperatives of ‘civilisation’, which proved that decisive adoption of the institutions of capitalist modernity could lead to ‘complete’ territorial jurisdiction’ (78).
Significantly, the three excerpts quoted above can be rewritten without reference to ‘civilisation’ without any loss of meaning: ‘Their legal systems were not well-placed to protect the activities and life-worlds of Western capitalists’; ‘The basic idea was that extraterritoriality was an anomalous, temporary arrangement that would be lifted as soon as these countries amended their legal, judicial and administrative systems to conform with the imperatives of capitalist modernity’; and ‘Even before the abolition of extraterritoriality in 1899, Japan was considered the ‘poster child’ for successful internal reform, which proved that decisive adoption of the institutions of capitalist modernity could lead to ‘complete’ territorial jurisdiction’. At best, invocation of ‘civilisation’ adds nothing. At worst, it breeds confusion.
Tzouvala goes on to say that ‘semi-peripheral international lawyers … largely accepted [the] “logic of improvement”, elevating capitalist modernity into the sole horizon of political transformation’ (83). By this point, and I think rightly, the ‘logic of biology’ has disappeared from view: ‘[t]he question boils down to how we understand imperialism and its relationship with international law’ (84). And she identifies in concluding the chapter class-based and racialised strategies on the part of non-Western elites that point to internal struggle around dispossession and primitive accumulation as central aspects of entry into the capitalist world market:
‘Adopting the legal and political institutions that had enabled capitalist accumulation in the West became a precondition for the enjoyment of equal rights and duties under international law. Within this framework, the efforts of non-Western international lawyers of the period to achieve juridical equality for their states can be re-read as the initiatives of national bourgeoisies to position themselves within the landscape of imperialism, rather than as instances of unqualified commitment to human equality. To the extent that inclusion meant the adoption of the institutions of capitalist modernity, the dispossession of Indigenous peoples and others was not an unfortunate by-product of an otherwise virtuous strategy, but the two were intrinsically linked’ (87).
Quite right. The idea of shared interests between pro-capitalist non-Western elites and their counterparts in and beyond Western international legal circles, or more grandly of a transnational class alliance committed to the expansion of the world market, proves a far better guide to the material examined than the notion of ‘oscillation’ between logics of biology and improvement to which Tzouvala continues to cling.
Chapter Three centres on the Mandate System set up by the League of Nations, the termination of the British Iraq Mandate under its aegis, and the consequent need to ‘determine what characteristics and reforms would suffice for a political community to be emancipated from the Mandate System’ (89). Tzouvala identifies three ‘epoch-making political shifts’ that worked against the partition and annexation of the former German and Ottoman Empires: US opposition; the impact of the Bolshevik revolution in Russia and the fear it provoked of the spread of communism; and the emergence of anti-colonialist, nationalist movements that ‘challenged the legitimacy and practicability of formal empire’ (92). In this context, the Mandate System emerged as a ‘scheme of international tutelage’ first proposed by Jan Smuts, the Prime Minister of the Union of South Africa. The account that follows is valuable, and illuminating, especially on the introduction of methods of standards and surveillance, and the emphasis (subsequently taken up by the World Bank in particular) on the production of a healthy and educated labour force (107-8, 114-18; cf. Cammack 2022). But nothing is added by the attempt to interpret it in terms of the evolution and transmutation of the ‘standard of civilisation’, and the convoluted idea that it continued to work away underground, while being rendered invisible by the turn in the ‘logic of improvement’ towards the stated concern for ‘welfarism’ (96), and a reliance on ‘technical evaluations, statistics and rankings’ (109).
The League Covenant that outlined the Mandate System described it as applying to ‘those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’ (cited 96-7, with emphasis added to ‘yet’). Three classes of mandates were created, A, B, and C (with those close to being recognised as independent states in the first group, those far from it and ‘administered under the laws of the Mandatory as integral portions of its territory, subject to … safeguards … in the interests of the indigenous population’ (101) in the third, and the rest in a ‘half-way house in between). Iraq was placed in the first group, and Tzouvala argues first that ‘the modalities of these differentiations were not the outcome of any ideational process, but rather of the strategic calculations and economic interests of imperial powers’, following Hammoudi’s argument that ‘the structure and content of the A Mandates are only explicable if we understand their important geostrategic location for imperialism as well as the then consolidating dependence on oil as the fuel of capitalist accumulation’ (2018: 81, cited p. 98). Second, she adds a few pages later that: ‘All political communities could achieve “civilised” status in theory, provided that they implemented the necessary reforms, which involved socio-economic transformation with a view to spreading market relations and the capitalist mode of production outside the West’ (102). And third, on the specific case of Iraq: ‘The question of Iraq’s emancipation and admission to the League combined thorny issues of legal subjectivity and political economy, including both the linking of independent statehood with the imperative of capitalist transformation and questions about the precise way new states would be incorporated into the global economy’ (109-110).
All this is clear enough, and it does not involve any ‘logic of biology’. However, in each case, adjacent statements offer a different view. First:
‘The basic structure of the mandate enacted the idea that mandated territories could at least, in theory, reach capitalism and modernity. However, they were not able to do so endogenously, but only through a period of subjugation and supervision by international actors. The Eurocentric idea that there was something inherent in Western culture, religion or racial composition (and their various combinations) that enabled or even necessitated the transition to capitalism, modernity and global domination was entrenched in the very structure of the Mandate System, as was its mirror image of the stationary East that could only be transformed through external guidance and coercion’ (98).
Second:
However, this was considered a rather theoretical prospect, as is evidenced by the fact that when the question of Iraq’s independence arose, the PMC was unprepared to deal with the issue. The ongoing relevance of the ‘logic of biology’ rendered the question of sovereignty for the mandates almost unthinkable at least in the present tense’ (102).
And third:
‘All sides of the argument found themselves proposing different combinations of ‘improvement’ and ‘biology’ in ways that did not control the eventual outcome of the political struggle, but did manifest the ongoing importance of ‘civilisation’ for international law’ 109.
In the first case, Tzouvala simply imposes some unsupported post-colonial tropes on her material, shifting in doing so from the idea that ‘spreading market relations and the capitalist mode of production’ beyond their imperialist heartlands depended upon the adoption beyond them of specific legal and institutional reforms (for which she provides plenty of evidence) to the much broader notion that some unspecified thing ‘inherent in Western culture, religion or racial composition (and their various combinations)’ was at play. In the second, she brings the ‘logic of biology’ back in, in defiance of the facts that the mandatory powers were confined to a minority of places on the PMC, ‘the League Assembly established its right to discuss the mandates in its first session and, having a permanent majority of non-imperial states, it developed a critical stance towards mandatory powers’ (104) and the British Mandate in Iraq, far from being a ‘rather theoretical project’, ended when the PMC and the Council of the League of Nations recognised its independence in 1932. The third statement simply re-imposes her pre-established interpretative grid, in defiance of any evidence to support it, while the ensuing discussion entirely supports the narrower argument initially advanced. The PMC ‘was adamant that the preparedness of a mandate for independence was a question of fact’ (110), and set out five criteria for independence (it must have a settled Government and an administration capable of maintaining the regular operations of essential Government services; it must be capable of maintaining its territorial integrity and political independence; it must be able to maintain public peace throughout the whole territory; it must have at its disposal adequate financial resources to provide for normal Government requirements; and it must possess laws and a judicial organisation which will afford equal and regular justice to all) (111). And Tzouvala argues that the functions of the envisaged state extended to ‘a minimum standard of state intervention in health, education and labour’ (114), and that all this is best understood in terms of Marx’s analysis of the destructive power of capital over labour if left unchecked, and the consequent need to manage ‘the normal reproduction of the working class a whole’ (115-6). In light of this, references to ‘the ongoing, unresolvable tension between the “logic of improvement” and the “logic of biology”’ (119-20), or to ‘the “standard of civilisation” as an argumentative pattern’ (125) and ‘the invisibilisation of the “civilising mission” and, thereby, its continuation’ (128) appear entirely gratuitous.
The remaining case studies – of the South West Africa mandate and the long road to Namibian independence and of ‘civilising missions’ from Iraq to Syria and the emergent ‘unable and unwilling’ doctrine – are the same: they are valuable and illuminating, but the central idea that the objective was to integrate states into the capitalist world market, well supported by the empirical evidence adduced, is in danger of being obscured by surrounding commentary on the ‘logic of biology’ and its ramifications. In the case of South West Africa/Namibia, originally placed in 1920 under a British mandate devolved by Britain to South Africa, the overall post-war context was ‘the determination of the Third World to prevent the annexation and also to use South West Africa as a means for attacking apartheid as a whole, the ambivalence and foot-dragging of the United States and the United Kingdom, and the intransigence of South Africa that sincerely saw itself as an island of ‘white civilisation in a savage continent’ (138; the phrase cited is from General (later Prime Minister) Smuts at the 1919 Paris Peace Conference). De facto annexation by South Africa after the collapse of the League of Nations was repeatedly challenged from 1946 onwards by the UN General Assembly and successive ‘Advisory Opinions’ by the International Court of Justice (ICJ), but without effect. In 1960 the Second Conference of Independent African States in Addis Ababa discussed and ratified a proposal brought by Liberia to bring a ‘contentious case’ (a case brought directly against another state), which, if successful, would empower the Security Council, under Article 94 of the UN Charter, to compel compliance with any Court judgement (149, and Gross, 1966). Liberia and Ethiopia, who had standing by virtue of being former members of the League and current members of the UN, brought the case jointly. Tzouvala’s argument that the case involved ‘a shift from opposition to racial capitalism to a narrow embrace of rights’ (140) slightly confuses the issues: the Court could only rule in accordance with international law, and the purposes and principles of the UN Charter. The Charter was explicit in upholding human rights for all, without distinctions of race, sex, language, or religion, but of course did not condemn capitalism as such. As she shows, Liberia and Ethiopia mounted a wide-ranging attack, centred on the (self-evident) claim that ‘South Africa had installed in the mandate a very specific form of racial capitalism in which racial segregation and subordination were inseparable from the exploitation of black labour and the dispossession of native land’ (150). In the circumstances, the 1971 judgement of the Court (following a 1966 decision not to hear the case at all, and a new process) did not either represent a shift, or offer a ‘narrow’ view of rights:
‘Under the Charter of the United Nations, the former Mandatory has pledged to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental rights is a flagrant violation of the purposes and principles of the Charter’ (cited p. 139).
Beyond this, though, the key issue at stake was that of labour. When the applicants ‘tried to mobilise the language of international law against the very imperial order that put it in place’ (153), they came up against the united commitment of the advanced countries/imperial powers, the United States included, to see labour in the developing/decolonising world put more effectively to the service of capital. As Tzouvala notes, the South African argument that ‘[a]part from the benefit of wages, the absorption of the Natives in a modern economy as regular workers had the advantage that it would gradually transform their traditional approach to work and inculcate in them new economic interests and attitudes’ (cited 154) accorded entirely with their thinking, and what is more, the wider view that ‘willingness and ability to participate in a capitalist economy either as a capitalist or as an obedient worker were of major importance for the determination of a group’s legal status’ (154-5) was a perspective widely shared by non-Western elites themselves, as reflected in the concluding lines of Chapter Two (87) cited above. To the extent that a shift took place, it was on the part of Ethiopia and Liberia, who ‘gradually developed a different strategy that decoupled racial discrimination from the overall structure of the economy, and rather focused on individualised harm’ (155). So the subsequent path to Namibian independence was entirely shaped by the ‘logic of improvement’, and when it came, in 1990, ‘the juridical scene had been set for its operation as a neoliberal state, a fact that was further reinforced by the embrace of neoliberal capitalism by SWAPO [the once radical South West Africa People's Organisation] themselves’ (164). There is a consistent logic here.
When she turns to the civilising missions of the twenty-first century from Iraq to Syria, Tzouvala argues that contemporary international lawyers still oscillate between the ‘logic of improvement’ and the ‘logic of biology’, maintaining that
‘this oscillation is due to international law registering the very real contradictions of imperialism. As capitalism expands globally it manifests its tendency to create both homogenisation and deeply situated differentiation, without being able to resolve the tensions between the two. Therefore, this argumentative persistence is due to both the practices of inheritance, socialisation and conformity within the profession and the material conditions of the world within which international lawyers operate and (unsuccessfully) attempt to mediate’ (168).
The focus is on two cases – the neoliberal reform programme launched by the CPA (Coalition Provisional Authority) following the invasion and occupation of Iraq in 2003-4 and the debate surrounding the ‘unwilling or unable’ doctrine. In the first, neoliberalism is understood as ‘both a set of ideas and an actually existing model of capitalist accumulation that “rests upon the idea of generalized competition and state intervention for the construction, guarantee and expansion of these competitive relations in an ever-increasing sphere of social co-existence, including the structure and functions of the state itself”’ (175, citing Tzouvala, 2016, pp. 120-21).
Quite so. But as Tzouvala shows, in this particular case the occupying authority did not seek at all either to build a state competent to guarantee competitive relations and generalised competition, or to create an environment characterised by competitiveness, but instead handed over whole areas of administration, reconstruction and enterprise to largely US monopoly concerns with ties to the Bush regime. This scheme was entirely antithetical to any early restoration of democracy, or to the construction of a government equipped to govern in conformity with the basic tenets of competitiveness. Tzouvala’s prefatory discussion of legal argumentation (169-71) and her invocation of the 2000 Report of the Panel on United Nations Peace Operations (184-5) distract from the specificities of the interaction of ‘neoliberalism’ and imperialism here, as does the invocation of the ‘logic of biology’ in the claim that ‘the mere fact that reform had to be imposed externally – be it from the United States or the United Nations – reproduced the idea that Iraqi society was a mixture of weakness and malevolence, uniquely incompetent to reform itself and to freely decide on the direction of such reform’ (171). It didn’t. It simply reflected that fact that Saddam Hussein’s regime was seen as a threat to US global power.
Finally and briefly, then, to the ‘unwilling or unable’ doctrine , which proposes that when a state is subject to an armed attack perpetrated by non-state actors based in the territory of another state, the “victim state” is entitled to use force extra-territorially in self-defence even if the actions of these non-state actors are not attributable to the “territorial state”, provided that the territorial state is “unwilling or unable” to stop such attacks’ (190). Whatever its merits, the discussion here moves away from the concern hitherto pursued with the ‘basic tenets of capitalist modernity’, which are prominent in the 1928 Island of Palmas case discussed at length (193-8), but not in the contemporary concern with the willingness or capacity of states to prevent armed attacks being launched from their territory. It would have been better left out.
Taking as a starting point Tzouvala’s reference to the tendency of capitalism to expand without limits, I asked at the start how far the ‘standard of civilisation’ itself acts over time as an impediment to this process. Specifically, was its ‘progressivist, linear outlook’ permanently limited by its ‘unconditional privileging of the historically specific legal and political infrastructure of European capitalism, as well as racial, gendered and sexual imaginaries of immutable difference and hierarchy’, reflected in ‘oscillation’ between logics of ‘biology’ and ‘improvement’? On my count, not at all, in that I score the relevant cases (leaving ‘unwilling and unable’ aside) as Logic of Improvement four, Logic of Biology nil (the ending of extraterritoriality in Japan, the termination of the British mandate in Iraq, the drawn-out transition from mandate rule to independence in South West Africa/Namibia, and the ‘neoliberal’ reconstruction of Iraq from 2003-4). One way of looking at this outcome is to say that the logic of improvement always trumps the logic of biology, so that the dominant logic is not one of civilisation, but rather that of capital itself – vindicating, of course, a strong line of argument that runs through Tzouvala’s account. Another way would be to tweak the argument, dropping the ‘standard of civilisation’ as an overt or covert point of reference, and say that what international legal argumentation privileged unconditionally was the expansion of capitalism without limits, that it generally saw the adoption of the historically specific legal and institutional infrastructure of European capitalism as the best means to this end, and that it claimed the right to require this on the basis of racial, gendered and sexual imaginaries of immutable superiority and hierarchy. I think that this is consistent with the cases presented. But note that when seen in this way (that is, with the emphasis on superiority rather than difference) there is no contradiction between the logics of improvement and biology, but they are, rather, mutually reinforcing, so that the idea of conundrums and oscillation between conflicting logics has to go. The resulting analytical framework is a good deal simpler than that proposed by Tzouvala, but it is entirely consistent with her many references to superiority/inferiority as underpinning ‘racist’ and ‘masculinist’ imaginaries and modes of thought and argumentation. It also makes it possible to argue, in the manner that Marx did when he suggested that capitalism initially depended upon auxiliary methods of accumulation before its own immanent laws kicked in and it was able to ‘stand on its own feet’, that in the long run the expansion of capitalism does not require and may even come to be hampered by such features.
References and further reading
Gross, Ernest A. 1966. ‘The South West Africa Case: What Happened?’, Foreign Affairs, 45, 1, pp. 36-48.
Hammoudi, Ali, ‘The Pomegranate Tree Has Smothered Me’: International Law, Imperialism and Labour Struggle in Iraq, 1917–1960 (PhD Thesis, York University 2018).
Koskenniemi, Martti. [1989] 2009. From Apology to Utopia: The Structure of International Legal Argument. Cambridge: Cambridge University Press.
Marx, Karl. 1973. Grundrisse. Penguin Books.
Miéville, China. 2004. ‘The Commodity-Form Theory of International Law: An Introduction’, Leiden Journal of International Law, 17 (2004), pp. 271–302.
Miéville, China. 2006. Between Equal Rights: A Marxist Theory of International Law. London: Pluto Press.
Parfitt, Rose. 2019. The Process of International Legal Reproduction: Inequality, Historiography, Resistance. Cambridge: Cambridge University Press.
Rasulov, Akbar. 2008. '"The Nameless Rapture of the Struggle": Towards a Marxist Class-Theoretic Approach to International Law', Finnish Yearbook of International Law 19: 243–94.
Tzouvala, Ntina. 2016. ‘Chronicle of a Death Foretold? Thinking about Sovereignty, Expertise and Neoliberalism in the Light of Brexit’, German Law Journal, 17 [Special Brexit Supplement], pp. 117–24.
Tzouvala, Ntina. 2020. 'The Ordo-Liberal Origins of Modern International Investment Law: Constructing Competition on a Global Scale', in J. D. Haskell and A. Rasulov (eds.), New Voices and New Perspectives in International Economic Law, European Yearbook of International Economic Law, Springer Nature, Cham, Switzerland.
Tzouvala, Ntina. 2022. 'International Law and (the Critique of) Political Economy', The South Atlantic Quarterly, 121, 2, 297-320.
McClintock, Anne. 1995. Imperial Leather: Race, Gender and Sexuality in the Colonial Contest. (New York/London: Routledge.