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International Law and World Order : A Critique of

Klabbers, Jan
Springer International Publishing AG
2018-07

Klabbers , J 2018 , ' International Law and World Order : A Critique of Contemporary
Approaches ' , Netherlands International Law Review , vol. 65 , no. 2 , pp. 253-258 . https://doi.org/10.1007/s40802-0

http://hdl.handle.net/10138/299900
10.1007/s40802-018-0114-9

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BOOK REVIEW

B. S. Chimni, International Law and World Order: A Critique

Jan Klabbers1

Published online: 30 August 2018

Anyone aiming to formulate a general theory of international law will have to take
into account at least two factors that render such an enterprise decidedly risky. First,
there is the circumstance that the field of international law is of broad yet uncertain
scope. Most would agree that international criminal law and international environ-
mental law have become fixed parts of international law, despite having some pecu-
liarities (think of individual responsibility with respect to the former, or the need
to mediate many standards through the state in case of the latter), but does interna-
tional law also cover, say, elements of labour law? Or international taxation? Or ref-
ugee and asylum law? Or questions relating to nationality? A general theory would
first need to figure out what it will be a general theory of, and that is no easy task.1
In this light, it is probably no coincidence that the only successful attempts at for-
mulating something akin to a general theory tend to concentrate on matters internal
to legal thinking (rather than the relations between law and society), and do so on
a high level of abstraction: the ‘cool structuralism’ of Martti Koskenniemi’s From
Apology to Utopia2 is probably the best-known successful example. Others may pre-
sent a theory of sources, or a theory of authority, or even more detailed theories of
such things as extraterritorial jurisdiction, but examples of plausible comprehensive
theories of international law are rare indeed.
Second, conceptual pluralists figured out some time ago that the same thing can
look different to different people, or can look different in response to different ques-
tions.3 A natural physicist may come to look at a church as yet another collection of
particles and elements. To an architect, the same church may represent a particular

1
Some of the pitfalls of grand theorizing can be discerned in Skinner (1985).
2
Koskenniemi (1989).
3
For one influential formulation, see Putnam (2004).

* Jan Klabbers
[email protected]
1
Professor of International Law, University of Helsinki, Helsinki, Finland

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254 J. Klabbers

style of design and building. The interior designer may see it as mostly a collection
a benches and altars. The sociologist may see the church as a collection of men and
women assembled for some reason, which the psychologist may further flesh out.
The faithful may view the church as a beacon of hope and comfort; and the critic
may view the same church as a symbol of greed or oppression. The point is, that all
of them may well be right, and not merely right from their own perspectives—differ-
ent though their respective truths are, they are not by definition incompatible—and
much depends, again, on the chosen level of abstraction.
This is a difficult lesson to learn, as we are usually inclined to take our individual
view of the world and absolutize it: if I am right, then others must necessarily be
wrong—if the church stands for greed and oppression, it cannot also be a beacon
of hope and comfort. These are thought to be incommensurable. And it comes with
serious ramifications for scholarship, in whatever discipline. For if different ‘truths’
can co-exist, then it becomes difficult to establish any theory with some ambition in
terms of the conclusiveness of its postulates and axioms.
In the light of these two concerns, one may wonder whether it is possible even to
imagine, let alone develop, a Marxist theory of international law, if by ‘theory’ we
mean something like a set of hypotheses and theorems or claims aiming to explain
the world around us (and preferably better than competing theories do). Such a the-
ory would have to explain not just what role international law in the abstract plays
(as in suggestions that ‘international law helps to oppress the poor and dispos-
sessed’), it should also tell a compelling story about how exactly this oppression
works, preferably backed by empirical materials (any empirical materials, really4)
rather than suggestive assertions. Moreover, such a theory should also have some
cogency at the level of detail. How would a Marxist theory explain the duty, under
the Geneva Conventions, to take care of the sick and wounded on the battlefield? Or
the strict liability regime relating to satellites? Or the precautionary principle that,
some claim, governs international environmental law? Or the right to fair trial? Or
the practical aspects of air services agreements? While it might be possible to con-
struct a general, grand Marxist theory of international law around themes of oppres-
sion and capital accumulation and ideology (a fairly abstract theory about law and
society), it would be much harder to construct a theory that would plausibly explain
international law in all its considerable detail without falling into traps of vulgarity.5
The field is simply too large and varied and open-ended, and the possibility of con-
ceptual pluralism too abundantly present to develop such a theory with any degree
of cogency.

4
It remains an open question what ‘empirical’ means, which helps explain why calls to engage in
‘empirical international legal studies’ remain difficult to follow.
5
One could, no doubt, explain the right to a fair trial as an attempt to generate false consciousness into
the masses, an attempt to put forward an ideology revolving around the individual in order to reach a
more effective level of exploitation, but surely, Occam’s razor might resist such an explanation. That
said, a fairly plausible critique of civil and political rights in general (and in the abstract) is that their
endorsement has diverted attention away from other forms of maltreatment of individuals, including
labour market insecurities and the dismantling of the welfare state in quite a few Western societies.

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B. S. Chimni, International Law and World Order: A Critique… 255

B.S. Chimni is far too sophisticated an international legal academic, and far
too sophisticated a Marxist, to even try. For him, a Marxist theory stands not so
much for a coherent and comprehensive set of statements claiming to explain all of
international law, but stands rather for a critical attitude, inspired by some insights
stemming from Marx and Engels and some of their later interpreters, but without
any claim to comprehensiveness. Chimni’s Marxism is ‘Marxism as mindset’, one
might say, a constant reminder that international law can be used for purposes of
oppression of various groups of people, that doing so is wrong, and that there might
be more equitable ways of doing things. Chimni himself consistently refers to his
work as an ‘approach’: an ‘integrated Marxist approach to international law’, and
that sounds about right, with the adjective ‘integrated’ representing the idea that the
sources of inspiration are not only to be found in the writings of Marx and his fol-
lowers, but also stem from elsewhere, in particular post-colonial studies and feminist
approaches. For, as Chimni rightly points out, a critique of international law along
strictly materialist lines and revolving around the notion of a struggle between the
classes should not be allowed to hide the oppression of women and the global south.
The book suggests that it is a second edition, and in a way it is, but it differs
markedly from the first edition, published a few generations ago in 1993, when the
world (including the world of international law and international lawyers) was still
a very different place. That first edition contained sympathetic but critical discus-
sions of various approaches to international law: the classical realism represented
by Hans Morgenthau; the policy approach of Myres McDougal and associates; the
world order approach endorsed by Richard Falk, and the socialist international law
voiced by Grigory Tunkin. The chapter on Tunkin has been taken out of the second
edition, whereas the other three have been updated and to some extent re-worked.
They have come to be accompanied by chapters on critical international law or new
approaches to international law6 (discussing the work of David Kennedy and Mar-
tti Koskenniemi) and feminist international law (mostly discussing a pioneering
study by Hilary Charlesworth and Christine Chinkin). All this takes up some 440
pages, leaving another 110 pages for the development of Chimni’s integrated Marx-
ist approach.
Chimni does not offer a critique of mainstream, positivist international law in
any detail, and for good reason. It is clear, to him, that mainstream positivism is
the dominant approach, and that there is little to be gained by offering a critique.
Instead, his intellectual interest goes to approaches that offer some alternative (those
who have already formulated a critique of the mainstream), and his project is best
understood as an attempt to learn from these alternatives precisely in order to offer
a more plausible alternative. Morgenthau’s realism may have been overblown, but
it offers the insight that the role of power cannot be completely ignored. The pol-
icy approach of McDougal and friends may have been too indeterminate and blurs
the relative autonomy (from politics and policy) of the legal sphere, but nonethe-
less aimed at being comprehensive. Richard Falk’s work may have paid too little

6
I will fiercely resist the popular habit of rendering various approaches as acronyms—doing so helps to
reify the approach concerned, and should automatically be suspect.

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256 J. Klabbers

attention to the role of capital, but at least displayed more sensitivity towards third-
world scholarship than most rival approaches, and Falk has never been shy ‘to speak
truth to power’.
If the chapters on Morgenthau, McDougal and Falk rehearse the first edition
(even if they have been seriously updated), the more intriguing chapters are the ones
on the critical and the feminist approach. As with Morgenthau, McDougal and Falk,
Chimni is basically sympathetic, but unsparing in his criticism. Of some of David
Kennedy’s work it is said that his internal critique ‘is neither particularly novel nor
of great value’ (at p. 262) and ‘profoundly ahistorical and apolitical’ (at p. 263).
Kennedy and Koskenniemi are chided for what he refers to as their ‘methodologi-
cal individualism’ and the well-nigh complete neglect, in their structuralist early
work,7 of the plight of the global south, despite the circumstance that some very
good work from the global south had already been available to them, such as the
work by Georges Abi-Saab or Mohammed Bedjaoui, among others. The influence
of the external realities on the internal structure of legal argument is never grasped
by Kennedy or Koskenniemi. The main substantive gripe seems to be that Kennedy
and Koskenniemi—the latter in particular—exaggerate the structural indeterminacy
of international law (from the perspective of the colonized there was nothing inde-
terminate about the law), and Koskenniemi’s proposed culture of formalism ‘is a
fuzzy idea that does not hold much attraction for the weak or legal professionals
who really wish to advance the cause of the weak’ (at pp. 343–344).8
Few men write about women’s rights or feminism, and perhaps for good reason.
The risk of being (or being seen to be) patronizing always lurks around the corner.
Chimni, however, has not been deterred, and offers a lengthy critique of in particular
the landmark study by Hilary Charlesworth and Christine Chinkin, The Boundaries
of International Law.9 The main flaw he identifies is that Charlesworth and Chinkin
remain caught up in a broadly liberal approach, fighting symptoms (women are
discriminated against and under-represented in international decision-making pro-
cesses) without thinking too much about underlying causes and the deeper structures
underpinning international law and global governance.
Chimni’s own integrated Marxist alternative is best seen, as mentioned, not so
much as a systematic theory, but as a constant reminder that there is more to inter-
national law than meets the mainstream eye. The function of the preceding chapters
was, it seems, to make visible various possible other conceptions and point out their
weaknesses and strengths (which, in all fairness, he also does—and often quite gen-
erously so), so as to sensitize the reader to what follows. The integrated Marxist
approach—and again, note the word ‘approach’—is built around what he considers
to be the five determining logics underlying international law, i.e. a logic of capital,
of territory, of culture, of nature, and of law. Each of these enjoys a certain relative
autonomy, and this alone is a plausible and useful insight. Law, for instance, is too

7
Koskenniemi (1989); for Kennedy this refers mostly to a set of articles published in the 1980s and
1990s, and his International Legal Structures (Kennedy 1987).
8
My own take on the proposed ‘culture of formalism’ is set out in Klabbers (2013).
9
Charlesworth and Chinkin (2000).

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B. S. Chimni, International Law and World Order: A Critique… 257

often seen as merely an adjunct to power or policy or the economy, thereby deny-
ing the law’s own dynamics and the distinctness of legal reasoning. By the same
token, culture (or ideology perhaps) has a dynamic all of its own, working in tandem
with the other logics yet distinct. International lawyers are well attuned to the logic
of territory, so much so that they often fall victim to the ‘territorial trap’,10 at the
expense of identifying other important determinants of politics and governance. And
of those, the supreme determinant in Chimni’s view, is the logic of capital, to which
he assigns ‘relative primacy’ (at p. 448).
Chimni’s integrated Marxist approach is just that: an approach. It does not, and
was never intended to, cover international law in all its rich detail, but suggests that
it may well be illuminating to look at international law with a Marxist sensibility,
with a keen eye to identifying its complicity in oppression and exploitation. But not
just that: international law can also be a beacon of hope. Chimni is mindful of the
circumstance that international law has ‘also responded in some instances to the
concerns of marginal and oppressed sections’ (at p. 498).
Thus far, this second edition of International Law and World Order has mainly
attracted the interests of others with an interest in establishing a Marxist approach,
and this has almost inevitably resulted in some internecine debates, with a lot of
energy going into disputing some of the finer niceties of Marxist theory. Robert
Knox has suggested that Chimni is too quick to dismiss the commodity form theory
launched by China Miéville some years ago11; Konstantina Tzouvala has taken him
to task for not integrating a radical enough feminism into his Marxist approach,12
while Umut Öszu queries how Marxist Chimni’s approach really is.13 And in a
lengthy soul-searching essay, Akbar Rasulov wonders whether one can be a Marxist
international legal scholar to begin with (he answers in the affirmative).14
Yet, it would be a great pity if the reception and discussion of Chimni’s work
remained limited to the select group of international lawyers that think of them-
selves as Marxists. Amidst the lengthy chapters on various approaches, and the long
chapter on the integrated Marxist approach, Chimni offers many useful and refresh-
ing insights, both on substantive international law and on the authors he takes to
task, and he is nothing if not a fair critic. While he may memorably complain that
much of David Kennedy’s historical work ‘is ahistorical by design’ (at p. 271) he
also recognizes that Kennedy has helped to debunk any myths concerning progress,
and has ‘helped liberate generations of international law scholars from the confines
of arid positivism’ (at p. 303).
Sometimes, on very rare occasions, the work derails a little. Surely, the sweep-
ing claim that ‘humanitarianism is the ideology of imperialism since the sixteenth

10
The locus classicus is Agnew (1994).
11
See https​://www.ejilt​alk.org/imper​ialis​m-commo​dific​ation​-and-emanc​ipati​on-in-inter​natio​nal-law-
and-world​-order​/ (visited 23 July 2018). This refers predominantly to Miéville (2005).
12
See https​://www.ejilt​alk.org/readi​ng-chimn​is-inter​natio​nal-law-and-world​-order​-the-quest​ion-of-femin​
ism/ (visited 23 July 2018).
13
See https​://www.ejilt​alk.org/b-s-chimn​is-relat​ively​-auton​omous​-inter​natio​nal-law/ (visited 23 July
2018).
14
Rasulov (2018).

123
258 J. Klabbers

century’ (at p. 301) is a bit all too sweeping perhaps, and the suggestion that the
Soviet Union suffered from a ‘lack of understanding’ concerning the causes of envi-
ronmental crises (at p. 205) strikes as uncharacteristically naïve towards the Soviet
Union. If Soviet scholars could put men on the moon and develop nuclear technol-
ogy, they surely must have been able to understand some of the causes of environ-
mental problems—although they may have been ordered to disregard them.
One of the mysteries as well as attractions of the law is that it can be different
things to different people—or sometimes even different things to the same people.
This duality has been captured in various ways: Hart spoke of nightmares and noble
dreams15; Oakeshott, employing a different perspective, spoke of societas and uni-
versitas,16 and Koskenniemi, employing yet another perspective, of Apology and
Utopia.17 It is one of the many merits of Chimni’s International Law and World
Order that he captures both aspects. His approach offers both a critique and, if not
exactly a way forward, at least a sensibility that, in turn, may offer hope. He realizes
that international law can be complicit in oppression and exploitation, but refuses to
accept that this is all there is, and refuses to slide into nihilism. For legal nihilism, so
he suggests, ‘is the luxury of armchair academics. It cannot inform social and politi-
cal movements in the real world’ (at p. 477).

References
Agnew J (1994) The territorial trap: the geographical assumptions of international relations theory. Rev
Int Polit Econ 1:53–80
Charlesworth H, Chinkin C (2000) The boundaries of international law: a feminist analysis. Manchester
University Press, Manchester
Hart HLA (1977) American jurisprudence through English eyes: the nightmare and the noble dream. Ga
Law Rev 11:969–989
Kennedy D (1987) International legal structures. Nomos, Baden-Baden
Klabbers J (2013) Towards a culture of formalism? Martti Koskenniemi and the virtues. Temple Int
Comp Law J 27:417–435
Koskenniemi M (1989) From apology to utopia: the structure of international legal argument. Finnish
Lawyers’ Publishing Company, Helsinki
Miéville C (2005) Between equal rights: a Marxist theory of international law. Haymarket, Chicago
Oakeshott M (1975) On human conduct. Clarendon Press, Oxford
Putnam H (2004) Ethics without ontology. Harvard University Press, Cambridge
Rasulov A (2018) A Marxism for international law: a new agenda. Eur J Int Law 29:631–655
Skinner Q (ed) (1985) The return of grand theory in the human sciences. Cambridge University Press,
Cambridge

15
Hart (1977).
16
Oakeshott (1975).
17
Koskenniemi (1989).

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