Thinking Imperialism in and through Rupture

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.