Robert Knox

The Marxist tradition is a crucial voice in the global anti-racist movement. Marxists were at the forefront of the anti-colonial and anti-imperialist movements, with those movements taking up Marxist concepts and deploying them to understand capitalism, race, and colonialism. Yet, these Marxist voices did not reflect systematically on international law. This essay attempts to remedy this neglect and understand what anti-racist and Third Worldist Marxists can offer international legal thought. It begins with a discussion of the typical (liberal) approach to racism in international law. It then explores how Marxists have understood the relationship between racism and capitalism, arguing that this fundamentally impacts upon international law. The essay concludes with an exploration of how these dynamics have played out in international law.

This article reflects on the concept of necropolitics and its useful-ness for understanding the state response to COVID-19, and its unequal political and economic consequences. Focusing on the British state, the paper seeks to explore and explain the dominant forms of government intervention and regulation that sought to ameliorate the crisis and shows how this response was shaped by a set of racialised capitalist social relations. The article argues that whilst the concept allows us to grasp the racialised vulnerability to death contained within the COVID-19 response, this needs to be understood within the wider context of the extraction of value in three key instances: firstly, in terms of creating a regime that would protect corporate autonomy; secondly, in terms of a racialised divi-sion of labour within states and finally in the context of a global imperialism which marginalises and racialises those states outside of the imperial core. It uses those three instances to explore how racist necropolitics is always underpinned processes of value-in- motion that maintain corporate profitability.

International lawyers typically dismiss accusations of ‘hypocrisy’ as rhetoric. By contrast, this article argues that such accusations are central to international law. The article begins by examining the centrality of accusations of hypocrisy to the 2014 Crimea crisis, noting the crucial juridical function of accusations of hypocrisy. In order to unpack this, the article turns to political theorists of hypocrisy, who see a structural link between ‘modernity’ and ‘hypocrisy’. Modern societies lack an overarching set of agreed ‘values’, making accusations of hypocrisy a crucial political currency. At the same time, the contradiction between formal legal equality and social and economic inequality in modern society constantly generates hypocritical behaviour. The article demonstrates that we can only fully understand this situation in light of the social relations of capitalism. The article charts historically how the unfolding of capitalist social relations gave rise to different configurations of hypocrisy within international law. Finally, the article asks what potential such accusations might have to help transform and overcome the social relations of capitalism and imperialism.  

https://twailr.com/twail-review/issue-03-2022/robert-knox-imperialism-hypocrisy-and-the-politics-of-international-law/

A key feature of the Iraq war was the prominence of international legal argument. This article argues that the motif of the 'illegal war' was crucial in mobilisations against the war. It traces the reasons for the prominence of this 'illegal war' motif and the wider political consequences of its adoption.

When Haiti joined the League of Nations as a founding member, it was under military occupation by the United States. This article charts the fate of that occupation and its relationship to the League. It begins by examining the material context in which the occupation occurred. In particular, it roots the occupation in a twofold challenge faced by the US in relation to Haiti: that of the inter-imperialist rivalry between US, German and French capital, and that of the challenge of accumulating capital within the Haitian state. Following David Harvey, it then frames the occupation as a ‘spatial fix’ to these two issues — which would legitimate the geographical expansion of US capital.
The article contends that this ‘spatial fix’ was also a ‘racial fix’, in which a racialised juridical argument was used to reframe Haiti’s sovereignty in relation to the occupation. However, the article argues that this was not simply about displacing Haitian sovereignty, but also about affirming that Haiti’s legal sovereignty could coexist with US economic and political control. The article demonstrates that the League played a key role in consolidating and stabilising this racial fix, as well as in articulating resistance to the occupation in a language ultimately amenable to global capitalism. The article concludes by arguing that the techniques developed in the Haitian occupation were central to informing contemporary practices of imperialism.

This article attempts to demonstrate the intimate interconnection between value and race in international law. It begins with an exploration of Marxist understandings of imperialism, arguing that they falsely counterpose race and value. It then attempts to reconstruct an account in which the two are understood as mutually constitutive, using this to explore the close interconnection between racism, law and capital accumulation in the history of Haiti.

"Over the past decade there has been an explosion in literature on imperialism and international law. This scholarship has focused on the use of force, especially humanitarian intervention and the war on terror. These accounts foreground the issue of race, arguing that these legal arguments reproduce the dynamic of the civilising mission. This article argues that such analyses miss some key elements.  Contemporary interventions must be counterposed to the First Gulf War, which was enabled through the uncontroversial authorisation of the Security Council. Humanitarian intervention and the war on terror emerged in reaction to the fear that other states would veto Security Council Resolutions. Consequently, the ‘racial’ discourse around intervention cannot simply be read as ‘othering’ the peripheries, but was also a response to inter-imperialist rivalry. The article then advances a conception of the arguments as an attempt to articulate hegemonic coalitions against emerging rivalries, and reads racialisation in this light.

http://www.tandfonline.com/doi/abs/10.1080/09557571.2012.762899

Critical international legal scholars have long grappled with the question of how to intervene in legal and political debates. In recent years the dominant trend has been to argue that it is necessary to intervene ‘strategically’ in such debates. However, what is meant by ‘strategically’ in this instance is an essentially pragmatic intervention focused on winning the debate in the short term. In the usual language, such an intervention would be called tactical as opposed to strategic, with ‘strategy’ referring to one’s longer term, structural objectives. This article argues that contemporary critical scholarship has lost sight of the distinction between strategy and tactics, resulting in the systematic exclusion of the former from political and theoretical discourse. This article begins by reconstructing the division between strategy and tactics. Following this, it proposes what a strategic objective for critical international lawyers might look like. However, it is then argued that in actual fact interventions in debates have been purely tactical interventions couched in the language of ‘strategy’. The article then traces the problems that flow from this – arguing that a perpetual focus on short term, conjunctural considerations turns a supposedly ‘strategic’ adoption of liberal legalism into a capitulation to it. The article next traces how the Marxist tradition has understood the intimate relationship between strategy and tactics, and its usage of these terms to navigate the debate around reform and revolution. Finally, the piece attempts to reconst a specifically legal strategy that draws on the insights provided by the Marxist tradition.

The question of international law's role in progressive politics has become increasingly important. This is reflected in an upsurge in scholarship dealing with international law's relationship to imperial power and its progressive potential. There has also been an increase in the number of Marxist accounts of international law, with China Miéville's Between Equal Rights being particularly important. Miéville's book is very pessimistic as to the progressive potential of international law. This article contests Miéville's claims by examining his accounts of legal subjectivity, violence, and indeterminacy, and argues that international law's content is open to progressive appropriations. However, the ‘form’ of international law limits its ability to criticize systemic or structural problems, so that it has very little transformative potential. A progressive politics of international law must therefore take advantage of content without falling foul of form. The article finally enquires whether in some extraordinary situations international law might be transformative.

When we think of the critique of imperialism in international law, our minds tend to turn to the Third World Approaches to International Law movement. Yet arguably, it was with the Russian Revolution that this tradition was inaugurated. This paper argues that the (Marxist) concept of imperialism was a crucial aspect of the Russian Revolution and Bolshevik political practice. It then argues that this praxis exerted a profound influence on subsequent anti-colonial invocations of international law.

The chapter begins with a reconstruction of the growth and development of the concept of imperialism. It then demonstrates the way in which this concept fundamentally shaped the political imaginary of the Bolshevik Party and the Russian Revolution. In particular, it traces how the concept reshaped the Bolsheviks’ understanding of which global forces would be the ones to overthrow global capitalism. To exemplify this point, we turn our attention to Soviet engagement with the so-called ‘unequal treaties’, which constituted the primary technique of imperial engagement with semi-colonial polities, such as China. We show how the denunciation of these treaties by the Soviets put pressure on Western imperial powers to do the same, and crucially, boosted the political authority of domestic communist parties.

Mapping these interactions between the Bolsheviks and anti-imperialist forces across the world, we come to challenge the historical accuracy of hegemonic accounts of self-determination within the discipline of international law. We argue that the lineage that draws a straight line from Wilson’s Fourteen Points to the UN Charter, common article 1 of the ICCPR and the ICESCR and the actual fact of decolonisation ignores that the liberal account of self-determination was pretty much stillborn amongst actual anti-colonial and anti-imperialist movements and it was rather the Leninist account of imperialism and self-determination that was impactful.

The second part of this chapter examines how these techniques played out at the micro-level, examining the way in which the African-American Civil Rights Congress’ use of international legal argument was undergirded by a Marxist theory of imperialism. In doing so, we will recover the importance of the October Revolution for the struggles for decolonization and racial equality, while interrogating the role assigned to international law in this context.

This chapter traces the changing role that the concept of ‘hegemony’ has played in international legal thought. It begins by establishing the original meaning of the term in Ancient Greece and follows its deployment in the Russian Revolution. It argues that by the end of the second world war, ‘hegemony’ had come be understood in two broad registers: as a ‘universalist’ strategy of class domination and as a vision of international relations in which a ‘predominant’ state shapes the global order. The chapter shows how, in the twentieth century, these two understandings became closely associated with the discipline of International Relations on the one hand, and post-structuralism on the other.

The chapter then shows how these two understandings have animated international legal thought. The international relations vision was used by a series of scholars to understand the ‘unilateral’ moment of US domination – particularly as reflected in War on Terror. The universalist vision was a more ‘internal’ vision, which examined how international institutions make claims to ‘neutral’ universality, when putting forward partial or particular legal interpretations.

The chapter contests both of these visions, showing – through a brief history of international financial institutions – that both are fundamentally idealist. The chapter suggests that by returning to Marxist conceptions of hegemony and imperialism might help us make better sense of international law.

This chapter attempts to analyse the way in which insights from the Marxist tradition can illuminate international human rights law. It begins by outlining the key elements of historical materialism. It then selects three key analytics – class, ideology and the structure of capitalism – and shows how they can illuminate the general phenomenon of human rights. In particular, it argues that human rights law is a social relation that mediates the struggles between classes. However, the particular form that this takes is one which tends to recast social conflict as a matter of individual rights violations and to draw attention away the root causes of social problems.

The chapter then goes on to apply these insights to the RMT v United Kingdom case, concerning the issue of secondary strikes in industrial disputes. It argues that aside from directly advantaging the capitalist class in its judgement, the European Court of Human Rights also reproduced the ideological effects of human rights law. In particular, it recast the political-economic logic of class conflict as a technocratic clash of individual rights. The chapter closes with an attempt to think through whether it would be possible to articulate a vision of human rights which takes on board the political-economic issues flagged up by Marxist analysis.

Full book available here - https://www.crcpress.com/Research-Methods-for-International-Human-Rights-Law-Beyond-the-traditional/Gonzalez-Salzberg-Hodson/p/book/9781138603554

One of the most striking and central features of neoliberalism has been its destruction of organised labour – and its associated political movements – as a political actor. This is true both directly in organisational terms, with the obvious decline in unionisation but also with the declining role of trade unions in political and economic activities, and in terms of political rhetoric, hence the preponderance of terms like social movements, the 99%, the multitude etc.

Whilst this is a fact that is recognised to some degree, it has been surprisingly absent from the legal discourse around neoliberalism, as are questions of labour more generally. Thus, whilst one frequently finds talk about neoliberalism and economic restructuring on a macro level, or about the use or neoliberalism to enforce discipline and silence opposition, there is very little talk of its operation at the level of structuring the workplace. All of this is particularly strange given the importance that struggles with organised labour played in the initial period of neoliberalism.

This paper aims to make a modest intervention in this situation. Essentially – focusing specifically on the role of British labour law – it traces the way in which legal interventions has reshaped the political subjectivity of organised labour. In particular, it focuses on the shift away from ‘collective laissez-faire’ and the various prohibitions on the right to strike. It then shows how these changes have also reshaped the relationship between labour and its political organisations, particularly those of social democracy.

Essentially, the argument is that these legal transformations have – through material compulsion – attempted to recast unions as another ‘actor’ in civil society. On the one hand, the connection between a union’s economic power and political goals has been severed, with unions only able to strike on narrow economic issues. Thus they are essentially recast as craft unions. As a result, social democracy has also lost its function as the political wing of the labour movement, and has instead been transformed into an ‘ordinary’ party, which fights for ‘labour’ (and other interests) through winning individual rights-based protections for workers. In this way, even social democratic goals have been re-articulated in neo-liberal forms.

Following this, it offers some general reflections on the role that (neoliberal) legality plays in shaping and constituting subjects, and attempts to draw out the tactical and strategic lessons from this.

This is my contribution to a larger collection of critical reflections on the Israeli assault on Gaza. In it I reflect on how discourses of racialisation and hypocrisy have played out in the international legal arena during the attack.

https://academic.oup.com/lril/advance-article/doi/10.1093/lril/lrae012/7723668

This piece is a contribution to the Third World Approaches to International Law Review (TWAILR) symposium on #TheorizingWhileBlack. It explores the complexities of the production of 'race' in the academia and what it might mean to be an anti-racist academic.

It can also be found online here - https://twailr.com/subject-positions/

In this blog post I engage in a symptomatic reading of the April 2021 Sewell Report, a Report commissioned by the Conservative Party to survey racism in Britain. I focus on the mechanical separation of race, class and geography in the Report: pointing out how this reflects the contemporary right's approach to racism, and how it plays on real contradictions within anti-racist movements.

In Homo Juridicus, Alain Supiot argues that law has an 'anthropological' function - constituting people as rational beings by linking together their biological and symbolic dimensions. The law also serves a 'dogmatic function', embodying Western values and serving as a bar to totalitarian scientism and tempering the excesses of technology in the workplace. However, the anthropological function of the law has been undermined by the advance of science and economics and widespread privatisation, contractualisation and deregulation. This article contests Supiot's claims, especially as regards Marxism, counterposing his position to that of Bolshevik legal theorist Evgeny Pashukanis. Pashukanis's insights into the relationship between law and capitalism are used to re-frame Supiot's argument and to undermine his contention that globalisation is inimical to law. Pashukanis is also invoked to contest the claims that the anthropological function of the law is the only alternative to totalitarianism and that law serves to 'humanise' technology.

Bill Bowring's book attempts to argue for a Marxist account of international law that embraces it as a tool for progressive politics and revolutionary change. He argues it is necessary to give a substantive account of both, locating them in the real struggles of the oppressed. Specifically, he locates human rights in the three great revolutions - the French, the Russian and the anticolonial. However, this revolutionary heritage has been 'degraded' by recent events. As such, it is necessary to adopt 'revolutionary conservatism', invoking international law's origins against its current degradation. This review argues that, owing to international law's indeterminacy, Bowring's project is susceptible to imperial appropriation. This means, however, that Bowring cannot give an account of why we should use international law. It then argues that Bowring's account of Pashukanis is wrong, and that Pashukanis's work can better make sense of Bowring's insights and international law more generally.

One of the most striking and central features of neoliberalism has been its destruction of organised labour – and its associated political movements – as a political actor. This is true both directly in organisation terms, with the obvious decline in unionisation, but also with the declining role of trade unions in political and economic activities, and in terms of political rhetoric, hence the preponderance of terms like social movements, the 99%, the multitude etc.

Whilst this is a fact that is recognised to some degree, it has been surprisingly absent from the legal discourse around neoliberalism, as are questions of labour more generally. Thus, whilst one frequently finds talk about neoliberalism and economic restructuring on a macro level, or about the use or neoliberalism to enforce discipline and silence opposition, there is very little talk of its operation at the level of structuring the workplace. All of this is particularly strange given the importance that struggles with organised labour played in the initial period of neoliberalism.

This paper aims to make a modest intervention in this situation. Essentially – focusing specifically on the role of British labour law – it traces the way in which legal interventions has reshaped the political subjectivity of organised labour. In particular, it focuses on the shift away from ‘collective laissez-faire’ and the various prohibitions on the right to strike. Following this, it offers some general reflections on the role that (neoliberal) legality plays in shaping and constituting subjects, and attempts to draw out the tactical and strategic lessons from this.

A marked feature of contemporary life is the centrality of law and legal argument to the public sphere. One can see this in the seemingly infinite proliferation of banal (yet utterly addictive) television shows in which law occupies a central role. More concretely, under the auspices of the war on terror, huge media spectacles have erupted over the legal justifications for imperialist violence.

How to account for this? Within mainstream legal theory there is a tendency to rigidly counterpose law and the public sphere. This is reflective of a more general tendency to hold law as separate from the messy sphere of social relations. In some respects, the left has taken a similar perspective, arguing that law is simply ineffective in the face of class or imperial power, and is ‘ignored’ or ‘overridden’. Against this, Marxist legal scholars have argued that law is central part of capitalist society, constituting and reproducing it.

This paper is situated in this vein. Drawing on the work of Guy Debord and Evgeny Pashukanis, I want to argue that the role law occupies in the public sphere arises from law’s spectacular logic.

The paper begins by juxtaposing Debord’s account of the society of the spectacle, with Pashukanis’ theory of the legal form. For Debord, Marx’s accumulation of commodities is also an ‘accumulation of images’, which – with the generalisation of commodity fetishism – come to dominate social life. For Pashukanis, the accumulation of commodities is also necessarily an accumulation of legal relations, meaning that commodity fetishism is complimented by legal fetishism. The paper draws out the way in which the internal logic of the legal form detailed by Pashukanis is a spectacular one, with legal fetishism being both directly ‘spectacular’, and law also producing and managing spectacles.

The paper then examines how the spectacular logic of the war on terror has been mediated and produced through legal argument, focusing on military interventions.

The paper finally turns to some strategic and tactical reflections on law. In particular, it draws on the theory of détournement and uses this to explore radical uses of the law.

Over the past decade there has been a veritable explosion in literature on the relationship between imperialism and international law. This has been triggered – in no small part – by the wave of controversial military interventions that began with Kosovo and culminated in the continuing War on Terror. It is thus unsurprising that these interventions have been the target of much of the above scholarship, particular that of Third World Approaches to International Law (TWAIL).Drawing heavily on postcolonial theory, these accounts have foregrounded the issue of race and racial discourse, particularly in relation to humanitarian intervention and the war on terror. Essentially, they have argued that the law and legal rhetoric in these areas reproduces the colonial structures and civilising mission of international law’s past. On this reading, what is key to both the war on terror and humanitarian intervention is that they portray peripheral countries as savages (and/or victims) in need of civilising (and/or saving). With this comes an embedded assumption that only ‘civilised’ states have the capacity to go to war, with ‘uncivilised’ states being open to almost perpetual intervention. This particular deployment is generally part of a larger argument, whereby international law is seen as driven by the processes of creating racial or cultural ‘others’.Whilst there is much to be commended in these positions, I will argue that they miss some key elements in the legal arguments around the use of force. Vitally, the various interventions have to be counterposed to the 1990-91 Gulf War, where intervention in the ‘peripheries’ was enabled through the fairly uncontroversial (legally) authorisation of the Security Council. The legal argument on humanitarian intervention and the war on terror only emerged as a reaction to the fear that China, Russia and (at various points) ‘Old Europe’ would block Security Council resolutions authorising the use of force. Consequently, the ‘racial’ discourse around armed intervention cannot simply be read as ‘othering’ the peripheries, but was also a key response to a re-emerging inter-imperialist rivalry. I argue that the ‘racialised’ discourse of humanitarian intervention and the war on terror needs to be seen as an attempt to legally entrench a hegemonic coalition against these emerging imperialist rivalries, whilst also articulating the ability of this coalition to intervene freely across the globe. I argue that this particular understanding has implications for the way in which we understand the role of race and racialised discourse in international law. What the above account suggests is that rather than granting racial otherness a foundational role in our understanding, we have to examine the concrete material circumstances which produce and construct particular racial configurations. Drawing on a range of Marxist and materialist thinkers on race, I will tentatively advance a non-reductionist, materialist account of the place of racial argument in international law, locating it with capitalist social relations and the specific conjunctural moments thrown up by them.

Over the past decade there has been an explosion in literature on imperialism and international law, in particular Third World Approaches to International Law. These scholars have focused on the use of force, especially humanitarian intervention and the war on terror.  Their accounts foreground the issue of race, arguing that these legal arguments reproduce international law’s colonial past, portraying peripheral countries as savages (and/or victims) in need of civilising (and/or saving). With this comes the assumption that only ‘civilised’ states have the right to go to war. 

While these scholars make an important contribution, I believe their analysis misses key elements in the legal arguments. Contemporary interventions must be counterposed to the First Gulf War, which was enabled through the uncontroversial authorisation of the Security Council. The legal arguments around humanitarian intervention and the war on terror only emerged in reaction to the fear that China, Russia and ‘Old Europe’ would veto Security Council resolutions. Consequently, the ‘racial’ discourse around intervention cannot simply be read as ‘othering’ the peripheries, but was also a key response to a re-emerging inter-imperialist rivalry. 

I argue that this ‘racialised’ argument is an attempt to legally entrench a hegemonic coalition, and also give this coalition the ability to intervene globally. More broadly, this account suggests that rather than granting racial discourse a foundational role, we have to examine the material circumstances which produce it. Drawing on a range of materialist thinkers,  I will tentatively advance a non-reductionist, materialist account of the place of race in international law.

Of all the various ‘radical movements’ in history, the working class movement – and more specifically the Marxist tradition within it – is perhaps that which has engaged in the most sustained reflection on the relationship between law and social change.  One can see this in Marx’s account of the legal limiting of the working day, Luxemburg’s discussion of reform and revolution, Lukács’ critique of bourgeois legalism, and of course the work of Pashukanis. Central to all of these accounts – whether implicit or explicit – was the distinction between strategy and tactics, and an attempt to work out how the two can be said to relate. In a sense this distinction is a simple one, strategy refers to one’s long term political aims and objectives, whereas tactics refers to the achievement of specific, shorter term goals.

However, in much contemporary critical theory this distinction has been lost. One frequently sees references to ‘strategic’ interventions, as essentially pragmatic, short term interventions into a given situation. In other words, these are ‘strategies’ without a ‘strategy’ – strategy has become systematically confused with tactics, resulting in its complete exclusion from political and theoretical discourse. The purpose of this paper is three-fold. Firstly, I aim to trace some of the consequences that arise from this confusion, showing in particular that it leads to an inability to move beyond a liberal politics of the status quo. Secondly, I attempt to suggest the primary features of a renewed conception that is capable of holding strategy and tactics together – key in this respect will be the vital role of materialist and explanatory theory. Finally, I draw upon the above writers in the Marxist tradition, and the contemporary experience of confronting imperialism with law, to show how the strategy and tactics division can help us think about international law.

My central argument will be that a truly radical approach, that is to say one which gets to the root of the problem, must understand the structural connection between law and capitalism on the one hand, and capitalism and disadvantage on the other. Consequently, such an account must aim at overcoming law itself. Yet this strategic aim must also reckon with the pervasiveness of law in capitalism. Consequently – as a matter of tactics – it is necessary to ‘use’ the law, but this must be done in such a way as not to undermine the ultimate aim of its abolition.

The central thrust of this paper is to argue that to posit ‘a turn to history’ as a solution to the problems of international law is to beg the question. The underlying assumption here is that there is a discipline (or a practice, or a method) called history that we can ‘turn to’ in order to escape some of the dilemmas posed by (perhaps) a theoretical approach. But the problem here is that – as above – there is no ‘history’ that we can turn to. Instead, there are various different historical approaches that could be adopted. Indeed, we can easily argue that ‘pointing out the noble roots of the normative idea’ is precisely a historical move; it is simply one that we find to be ineffective and problematic.

What this suggests is that rather than being a way of ‘escaping’ theory, any turn to history must necessarily be intensely and consciously theoretical. In this paper I seek to do several things. Firstly, I argue that the turn to history has already been in effect for a long time, and that this turn to history has predominantly assumed a certain form. Secondly, I argue that although this form might at first sight appear to avoid ‘theory’, it is incapable of doing so. As a consequence of this, I argue that it is represents a liberal politics of the status quo. At this point I reflect briefly on the relationship more generally between history, theory and politics. Following this, I counterpose this approach to that of the Marxist tradition, pointing out its most salient features, and examining how it is able to make sense of the history of human rights law. Finally, with this in hand, I offer some brief suggestions as to how a research project along these lines might proceed.

Of all the various ‘social movements’ in history, the working class movement – and more specifically the Marxist tradition within it – is perhaps that which has engaged in the most sustained reflection on the relationship between law and social change.  One can see this in – inter alia – Marx’s account of the legal limiting of the working day, Luxemburg’s discussion of reform and revolution, Lukács’ critique of bourgeois legalism, and of course the work of Pashukanis. Central to all of these accounts – whether implicit or explicit – was the distinction between strategy and tactics, and an attempt to work out how the two can be said to relate. In a sense this distinction is a simple one, strategy refers to one’s long term political aims and objectives (often broader social transformation), whereas tactics refers to the achievement of specific, more short term goals.

However, in much contemporary critical theory (and practice) this distinction has been lost. One frequently sees references to ‘strategic’ interventions, as essentially pragmatic, short term interventions into a given situation. In other words, these are ‘strategies’ without a ‘strategy’ – strategy has become systematically confused with tactics, resulting in its complete exclusion from political and theoretical discourse. The purpose of this paper is three-fold. Firstly, I aim to trace some of the consequences that arise from this confusion, showing in particular that it leads to an inability to move beyond a liberal politics of the status quo. Secondly, I attempt to suggest the primary features of a renewed conception that is capable of holding strategy and tactics together – key in this respect will be the vital role of materialist and explanatory theory. Finally, I draw upon the above writers in the Marxist tradition, showing how their work can help us to think about the strategic and tactical use of international law.

The period following the end of the Cold War seems to have been one marked with a muted form of ‘inter-imperialist’ competition. Although the first Gulf War was conducted through relatively uncontroversial legal means, in the following period much imperial repression was conducted through ‘coalitions of the willing’. These interventions were generally couched in terms outside of the explicit Security Council mandate (humanitarian intervention, the war on terror, pre-emptive self-defence etc.) – seemingly so as to avoid the veto of (at the very least) China and Russia. But these rationales were always articulated in particular spatio-political terms, such that they were seen to only accrue to certain states (primarily those around the transatlantic ‘alliance’).

This remained relatively uncontroversial until 2008. That year, in the midst of the beginnings of an economic crisis we saw a geo-political crisis, with Russia’s intervention in Georgia. Yet this was also a legal crisis inasmuch as Russia usurped some of the legal arguments that had – up until that point – been the ‘sole property’ of the transatlantic alliance.

In this paper I wish to trace the way in which we can conceptualise the relationship between the above conjuncture – inter-imperialist rivalry and the legal argument associated with it – and the ‘Global State’. Thus the aim will be here to see how (or whether) a global state can be said to exist in a world of many states (and national capitals) and the way in which this state could be said to mediate the contradictions within capital itself. The Georgia issue will be particularly important as it allows us to inquire how a global state might deal with capitalist rivalry generated by economic crises and their attendant political and legal crises.

Perhaps one obvious rupture in international legal theory (and indeed ‘theory’ more generally) has been the rise to prominence of ‘Empire’ or ‘imperialism’ as important themes. But of course, precisely one of the claims of many of those invoking ‘imperialism’ is that what they are doing is not new, and is in fact continuous with a long tradition of thinking about imperialism in international affairs (reflecting another claim, that imperialism as a phenomenon itself has been with us for a long time). It would seem then, given this and other facts explored below, that imperialism is an interesting concept through which to explore the shifting relationship between continuity and rupture in international legal theory.

In this paper I seek to examine how two contemporary (but at the same time quite old) theoretical traditions have deployed the concept of imperialism, and how this has related to rupture and continuity in international law. I will firstly examine the way in which the Third World Approaches to International Law (TWAIL) movement has conceptualised imperialism. Here, I will begin by exploring some of the classic postcolonial theory that has informed TWAIL, in particular the work of Said and Bhabha. I will trace the ways in which certain problems that arise within their work is carried over and perhaps intensified in the work of some of the most important TWAIL scholars – especially Anghie and Rajagopal. Here, my basic argument will be that owing to certain theoretical moves, the conception of imperialism shared by many TWAIL (and postcolonial) scholars constantly oscillates between rupture and continuity, unable to decide whether we are living with imperialism or simply its legacy. This has consequences for how these scholars conceive imperialism’s relationship to international law, reflected in their ambivalence as to international law’s emancipatory potential.

Following on from this, I will examine the Marxist tradition of theorising about imperialism. Here, the aim will mainly be to examine some of the ‘formal features’ that unite the sometimes disparate substantive conceptions of imperialism (the prime example being looking at imperialism as a phenomenon with a systemic economic logic). I will argue that these formal features might provide a way for us to hold together both rupture and continuity in examining imperialism. Following on from this, I propose, drawing on Fanon, that a ‘stretched Marxism’ taking on the concerns of postcolonial scholars, and recovering some of their Marxist heritage (in, for example, Fanon, Spivak and Chimni), can use these insights to examine international law.

Finally, I briefly use this position to give an account of international law and imperialism in the period of 1989-2010. I will deploy this through the lens of the law on the use of force. Focusing on three ‘moments’ – Iraq I, Kosovo and Iraq II  - I will argue that whilst these may have been based on shifting coalitions and interests (ruptures), they nonetheless followed on from a particular logic of capital accumulation (continuity) and exhibited strikingly similar features.