Relapse into ‘Civilisation’?! A Narrative’s Continuity and Change

Critical International Law has become increasingly influential in academic discourse. However, argues Ntina Tzouvala, there remain important blind spots. An interview on capitalism, racism, and the ongoing impact of ‘civilisation’. Find part I of this interview here.

Dear Ntina, in the first part of our interview we talked about blind points in Critical International Law and the concept of ‘racial capitalism’. In the second part, I would like to revisit the narrative of ‘civilization’ with you: in your widely received book Capitalism As Civilisation, you have shown impressively that the narrative of civilization has remained powerful in international law, even when it is not used expressis verbis. Would you say that the narrative is applied differently today than it was in the 19th century?

Richard Joyce wrote a very interesting review of my book recently. There, he observes that the recent invasion of Ukraine by Russia was accompanied by a resurrection of the language of ‘civilisation’ if not in international law (yet) at least in international politics. Everyone seems to be invoking the concept: Russia in relationship to its own ‘civilisation’, as well Ukrainians and their Western allies in reference to the country representing Western civilisation against Russian barbarism. It seems that I spent all this energy trying to prove that the demise of explicit references to ‘civilisation’ did not diminish its disciplinary significance, just before the language of ‘civilisation’ made a decisive comeback!

That said, I think that ‘civilisation’ as an argumentative structure is a constant as much as it is flexible and evolving — and, in fact, this combination of stability and plasticity is what has guaranteed its survival. For a while, one major difference was the fundamental reconfiguration of one of the two poles of ‘civilisation’, the ‘logic of biology’. In a nutshell, express references to immutable biological difference had to be replaced with sublimated tropes, metaphors, or references to cultural difference and differential economic development. This was not insignificant insofar as it incorporated real victories of racialised peoples both domestically and internationally that rendered explicit references to biology unacceptable. Unfortunately, I am not certain that this change will survive the resurgence of open white supremacy in the West or the calcification of religious or ethnic difference into ‘racial’ difference elsewhere, for example in the case of Han supremacy in China. At the same time, I would argue that so far we have witnessed ‘the logic of improvement’ becoming more rigid and prescriptive: subscribing to capitalist modernity has not been sufficient during, say, the past three decades. Rather, ‘improvement’ demanded a very particular form of neoliberal capitalism, one that did not allow for the forms of state interventionism, solidarism, or planning that were widely practiced by capitalist states between the 1940s and the 1970s. Now, the death of neoliberalism has been declared multiple times in the past 15 years, so much so that it is hard to believe that this time it may be real. It is, though, true that some crucial elements of the neoliberal consensus are under attack or even in retreat. If this turns out to be a durable trend, one would expect that ‘improvement’ will come to mean something new. In addition, one can reasonably expect that the re-emergence of semi-formalised regional political and economic blocks might cause a parallel fragmentation of ‘the logic of improvement’ in which different forms of (neoliberal?) capitalism will apply in different contexts. All this goes to say that ‘civilisation’ so far has evolved and it will continue to evolve. We do not need to claim perfect continuity to do the work of critique and, conversely, we do not need to treat change as implying improvement.

To discuss continuity and change of ‘civilisation’ with a concrete example: in an interview I conducted the day after the Russian invasion in Ukraine for Völkerrechtsblog, Lauri Mälksoo spoke of the ‘civilizational turn in Russian politics of international law’. According to Lauri, ‘the civilizational rhetoric emphasises Russia’s differences from Europe and the West and portrays the West—currently especially the US—a as immense civilizational danger.’ In a recent AJIL article, Anastasiya Kotova and you argue that Russian aggression should be understood not as ‘aberrational or anomalous but as part of a broader range of imperialist uses of international law’. Do the two views contradict each other or are they complementary? And how can Russian aggression be classified against the background of your book?

I think that Kotova and I tried to highlight what is ordinary about Russia’s legal claims, while Mälksoo is concerned with that is exceptional about them. The two positions are neither inherently contradictory nor obviously compatible. How they come together (if at all) depends on how these claims are used as building blocks for a bigger argument. On our end, the essence of our argument is that Russia, concerningly, drew from existing arguments about ‘humanitarian’ intervention, self-defence, ‘rogue states’, and chemical weapons, to construct its (wildly unpersuasive) legal arguments. We trace these similarities not for the purposes of ‘whataboutism’ but in order to raise awareness about deeper problems about our discipline: how older and newer arguments do not seek to limit the use of force but rather to legitimise the use of force by certain imperialist states. We were keen to argue that these states need not be Western: aggression has more to do with political economy and politics than with ‘culture’ or religion. For this reason, our intervention had two different audiences. First and foremost, we wanted to resist the mainstream argument that Russia’s aggression is unique and unprecedented in its illegality and that drawing any analogies with Western uses of force and their justifications is, somehow, inherently immoral. Rather, we wanted to emphasise that finding these similarities does not mean to excuse Russian aggression, but rather to highlight the dangers of expansivist arguments when it comes to jus ad bellum. Identifying enabling elements within the field can help us to rectify these mistakes instead of exceptionalising Russia and its aggression — an inherently dangerous exercise that might feed into (as it has at times) a racialised way of understanding Russia’s imperialism. Secondly, we wanted to address our TWAIL comrades and emphasise the necessity to expand our understanding of imperialism beyond its Western variants. In that we are not alone. In his recent work, Vincent Wong highlights the use of law by the Chinese state to enact, rationalise and render invisible racialised dispossession and exploitation in Xinjiang. In this respect, our intervention sought to emphasise both the unique elements and (to a greater extent) the banality of Russia’s international legal arguments.

What unites liberalism and Marxism, so to speak, is the striving for progress in modernity — even in quite different ways. But doesn’t it remain in the end that law, with Walter Benjamin, as a ‘document of civilization’ remains always also ‘a document of barbarism’? In other words: From a Marxist perspective, is international law at all capable of producing an emancipatory improvement in the long run, or does the rule of law not always remain just that: a law of the ruling?

I would say that what actually unites Marxism and liberalism is their shared interest in human freedom and in the preconditions for its attainment. This is not an uncontroversial statement: it presupposes that we accept the argument, beautifully made by William C. Roberts, that Marx was a radical republican who centred freedom in his critique of capitalism. In this telling, Marx conceptualised life under a market society as a form of impersonal domination to be opposed on republican grounds. This is also where Marxism and liberalism diverge: if Marxism is a form of republicanism then it centres freedom as non-domination, while liberalism has historically understood freedom as non-interference. For Marx, the freedom of liberal capitalism is a particular kind of freedom where workers have to sell their labour power to capitalists or starve to death (the German word is ‘vogelfrei’: free as a bird).

‘Vogelfrei’ usually has a negative connotation in German.

That’s exactly right. For Marx, this is no freedom at all, or at least not one that should satisfy us. A very similar critique of international law emerged with Mohammed Bedjaoui, the Algerian jurist and diplomat who was central in the efforts to establish a New International Economic Order and went on to become an ICJ judge. For Bedjaoui, ‘classical’ international law was non-interventionist and it was precisely through this non-intervention that it sanctioned domination. Allow me to quote him at some length:

‘Traditional international law is derived from the laws of the capitalist economy and the liberal political system. From these two sources it derives the elements and factors of a certain consistency to be found in its theoretical construction and in the terms of its actual rules. The judicial order set up by the former international society gave the impression of neutrality or indifference. But the laisser-faire and easy-going attitude which it thus sanctioned led in reality to legal non-intervention, which favoured the seizure of the wealth and possessions of weaker peoples. Classic international law in its apparent indifference was ipso facto permissive. It recognized and enforced a “right of dominion” for the benefit of the “civilized nations”’.  – Mohammed Bedjaoui, Towards a new international economic order (UNESCO, 1979), p. 49.

Now, Bedjaoui was referring to the pre-1945 international legal order, but his main contention was precisely that there had not been a decisive break with that order, at least not in regards to non-interference and juridical equality not only allowing but also facilitating domination. In this respect, I think that I have gone some way toward answering your very rich question: international law can be a good (albeit not as good as it was once assumed) vehicle for safeguarding liberal freedom both for states and for individuals. This is not unimportant and, in many instances, can be the difference between life and death. However, I doubt that it can be a particularly effective instrument in countering domination, especially in its impersonal forms.

This provokes me to ask a last, perhaps somewhat bold question: if that is the case, what is the point of studying international law in the first place? Wouldn’t it make more sense to put your energy into studying, for example, political economy? Or, is there perhaps something that political economy can learn from Critical International Law?

I have been asked this question so many times! To want to study and understand something does not require either an a priori positive evaluation of our object of study or a belief that it is the single most important thing in the world. I would actually go as far as saying that it requires exactly the opposite: a healthy dose of scepticism and some modesty about a subject that we came to almost certainly by accident.

Let me tackle each argument in turn: we do not demand that our oncologists think that cancer is ‘good’ (in fact, we would find this rather concerning) or, to be less  provocative, we do not demand our astronomers to consider asteroids ‘morally good’: they can find them interesting, fascinating even, but they can also wish that they stay as far from earth as possible! I have always thought that this reaction (‘If you think international law is bad, why are you studying it’) says a lot about the profession of the international lawyer as an essentially (and not incidentally) ideological profession; we are not expected to understand our object of study as it is; we are meant to come up with rationalisations and explanations of its inherent goodness, rationality, completeness or, as Gramsci would say, we are ‘organic intellectuals’. Now, thanks to the particularities of the university some international lawyers have managed to carve a different role for ourselves: we want to understand our subject, not to defend it. In this respect, I often find some formalist international lawyers much easier to work with: we disagree about a lot, but they treat international law as a riddle to be solved, not as a gospel to be preached! Now, I am not a formalist, and I think that the riddle that they have set for themselves is unsolvable and ideological in its own way, but, still, I can find common ground.

Now, if the above position (‘the international lawyer ought to think that international law is good’) is usually articulated by liberal international lawyers, crits have another tendency that I am also sceptical about. They either try to flee to other disciplines, be it history, literature, political economy, and/or they/we try to justify our position in the academy by arguing that everything is about international law and, therefore, international law as we understand it is singularly important. The answer to why not study political economy instead is a simply one for me: because of decisions that I had to make when I was 18 (if not 16) this path is now closed (or at the very least very difficult to follow) to me. There is no grand narrative in my choice to study international law: it happened quite randomly. However, once we are somewhere—be it a place or a subject — this ‘hereness’ produces its own normativities: I want to be here — here being international law in this instance — as well as I can. I want to understand it as best as I can and I want to dissect it in a way that moves human emancipation one millimetre forward. It will not be more than one millimetre, but this seems important?