Downloaded by [University College London] at 16:22 10 September 2017 10 RACE, RACIALISATION AND RIVALRY IN THE INTERNATIONAL LEGAL ORDER Robert Knox1 Introduction As noted by Anievas, Manchanda and Shilliam in the introduction to this collection, debates about imperialism have been – in an oblique manner – one of the main ways in which international relations has grappled with the question of race and racism. The contemporary resurgence in IR scholarship on race is no different, part of a wider scholarly and political revival in the study of empire and imperialism. As has often been noted, this wider revival occurred in the wake of a wave of military interventions. Thus the 1999 Kosovo ‘humanitarian intervention’, the 2001 invasion of Afghanistan and the wider “war on terror” and the 2003 invasion of Iraq were all central to the re-emergence of debates about ‘empire’. Analysing these military interventions in terms of empire and imperialism has also brought their racialised nature to the fore. The justifications for all of these military interventions implied and relied upon a stark distinction between different regions of the world, with some states being entitled to intervene, and others existing to be intervened in. This points more generally to the fact that it has often been through issues of military violence that the global colour line has been understood and contested. This is a familiar story to any student of IR. Indeed, as the introduction to this volume notes, the discourse of rogue states and new wars, and the technologies of contemporary military violence all bear the stamp of race. Yet there is something missing from this picture. While military interventions obviously involve questions of force, power and political economy, they also crucially involve questions of law. Military interventions are almost always accompanied by attempts to argue for their legality. Indeed, the discourse of ‘rogue states’ emerged as part of the broader legal architecture of the war on terror, and some of the most heated debates over drones have been conducted in juridical terms. This should draw our attention to Downloaded by [University College London] at 16:22 10 September 2017 176 Robert Knox the fact that the last wave of contemporary military interventions have been quite intensely juridical – with much of the specificity of humanitarian intervention and the war on terror lying in their juridical characterisations. As such, one can draw important connections between the global colour line, military intervention and international law. In this respect, it is unsurprising that critical scholars of international law have attempted to map these connections. These approaches have tended to locate the use of force within a wider dynamic of a ‘civilising mission’, in which the role of law is to racialise peripheral territories in such a way as to justify the intervention of advanced capitalist powers. Building on a previous article (Knox 2013), this chapter will argue that the conceptions of race and imperialism that underlie such approaches cannot sufficiently account for the shifting patterns of legal argument over the past decade. Briefly examining some of the major military incursions of the 1990s and 2000s, this chapter argues that the difference between the legal justifications for the first invasion of Iraq and the later invasions cannot be accounted for by the concept of racialisation outlined above. It argues that instead it is necessary to foreground the role of inter-imperialist rivalry in creating particular legal forms of racialisation. The chapter then attempts to reflect more broadly what role inter-imperialist rivalry plays in the relationship between imperialism and international law and how this can illuminate questions of racialisation more directly. In so doing it attempts to shed light on the complex and shifting nature of the global colour line. Race, war and law Civilising interventions? Some of the most important contemporary scholars on the relationship between race and international law are those writing in the soi-disant Third World Approaches to International Law movement. Focusing particularly on the cases of humanitarian intervention and the war on terror, these scholars have argued that the law on the use of is structured by the racialising logic of a ‘civilising mission’ inherited from international law’s colonial past. In the case of humanitarian intervention, this logic is almost immediately apparent. As Makau wa Mutua has argued, the legal arguments around humanitarian intervention embed and invoke a number of colonial tropes (2001). In particular, he argues humanitarianism is structured by a metaphor of ‘savages, victims and saviors’. Essentially, Mutua argues, discourses of humanitarian intervention are always aimed at the Third World, despite the repeated violations of human rights by European states (Mutua 2001, 214–16). The content of these discourses always interpellates non-European cultures as savage in some way (Mutua, 219–27). It is because of this savagery that these non-Europeans are said to violate the human rights of victims. These victims – also non-European – are portrayed as passive and powerless before their own savage culture. In order to stop this they need to be saved by an outside agency, the West (Mutua 2001, 229). Here, the West acts as a Downloaded by [University College London] at 16:22 10 September 2017 Race, racialisation and rivalry 177 saviour who will transform the savage culture through human rights (Mutua 2001, 233–43). The rootedness of this discourse in racialised categories should be obvious. Humanitarian intervention essentially relies on a colonial logic in which the ‘natives’ are both savage and powerless and can only be saved by being transformed by Western intervention. Antony Anghie has argued that this civilising logic is also at play in the war on terror. The war on terror has largely been conducted under the rubric of selfdefence. In particular, under the ‘Bush Doctrine’ it was argued that an expanded right of self-defence would be needed to counter the new continuous threat of stateless terrorism. Given international law’s universality, this could have presented a problem, since all states would have been entitled to an expanded right of preemption (Anghie 2005a, 49). Of course, the United States could simply have allowed this to have been a formal juridical possibility but one which was limited by the realities of the unequal distributions of power on the world stage, but it did not. Instead, pre-emption was coupled with the idea of rogue states. The need for pre-emption was not generated by all states, but rather caused by a small number of terrorist-supporting states or ‘failed states’ which could not control their populations. These states could not possess the right to pre-emptive self-defence and were in fact its legitimate target. Anghie argues that this mirrors the nineteenth-century colonial international law in which international legal personality was linked to ‘civilisation’. Only states that were civilised according to European standards could be members of the ‘Family of Nations’ and so possess the full right to go to war (Anghie 2005a, 51). The Bush Doctrine took this even further however. Since rogue states were the source of instability in the world, it was necessary to intervene in order to transform them into liberal, democratic and stable states. Hence the war on terror has always been accompanied by ‘humanitarian’ and regime change arguments. In this way, once again, the structure of the civilising mission is reproduced (Anghie 2005, 309). In these accounts, then, the law on the use of force is racialised because – in the words of the introduction – its terms ‘remain embedded within the same racialised logics that they claim to displace’. However, the racial logic invoked by the accounts is a particular one, whereby racialisation is both ‘primary’ and ‘binary’. The racial logic is primary because they see racialisation as the driving force behind international legal argument. In this sense, law exists in order to reproduce the distinctions between the civilised and the uncivilised. The logic is also binary. First because it operates with a classical notion of colonial Manicheanism, whereby the primary division is between the civilised and the uncivilised (Fanon 1963, 41). In this vision, the importance of the law lies in designating ‘uncivilised’ areas as outside the ‘Family of Nations’ and positing them as legally inferior and thus open for intervention. Second because this Manichean logic is seen as determining the particular way in which racialisation occurs. What this ultimately means is that the form in which racialisation occurs is determined by the relationship between an advanced core and an exploited periphery. The logic of civilisation is deployed as part of a process whereby this core is Downloaded by [University College London] at 16:22 10 September 2017 178 Robert Knox enabled to exploit and oppress the periphery. Thus, both the war on terror and humanitarian intervention have been understood as doctrines whose purpose is to legitimate US military interventions into peripheral territories (Amin 2006, Bartholomew 2006, Bowring 2008 and Chimni 2004.) Whilst there is much to recommend in these accounts, they suffer from a problematic conception of imperialism and its relationship to race. Underpinning them is a vision of imperialism in which a dominant, unified imperialist core exploits an oppressed periphery. Here, the logic of imperialism is immediately racial, and racialisation can be explained purely according to the logic of the core exploiting the periphery. Yet, such an account is incapable of explaining the shifts in the specific legal arguments that have been deployed to justify military interventions. As will be argued below, over the past twenty years one can distinguish between at least three different types of legal argument that have been deployed to justify military intervention. If the law on the use of force is directly driven by a racial logic that serves simply to legitimate expansion into the ‘Third World’, it seems difficult to understand why these different legal justifications have been deployed at all. New world orders? The law on the use of force is structured around the idea of self-defence. Article 2(4) of the UN Charter forbids the threat or use of force ‘against the territorial integrity or political independence of any state’. There are two exceptions to this: Article 51, which concerns self-defence, and Chapter VII. Chapter VII, the ‘collective security’ aspect of the Charter, deals with Security Council (SC) authorisations of the use of force. If the SC determines that there has been a threat or breach of the peace or an act of aggression it can authorise the use of force under Article 42 (using the phrase ‘all necessary means’). Since these authorisations are decided by the SC, they can be prevented by a veto from any of its permanent members. Throughout the Cold War the collective security regime was ‘paralysed’ owing to the geopolitical rivalries between the ‘Western’ countries and the Soviet bloc (de Cuéllar 1989). This was to change. In 1990, the Iraqi military invaded Kuwait. The Kuwaiti government immediately invoked a claim of ‘collective self-defence’. However, the main legal justification for the invasion of Iraq was authorisation by the SC under Chapter VII. Resolution 660 declared that there had been a breach of international peace and security and under Resolution 678 the SC authorised member states to use ‘all necessary means’ to enforce Resolution 660. The political discourse that accompanied this event depicted Saddam Hussein and the Iraqi state as essentially uncivilised barbarians (Said 1994, 353–5). This was reflected in the international legal logic of the argument. The SC essentially declared Iraq to be a pariah state and source of instability that had to be attacked and contained. The reason that it had to be stopped was that it had attacked ‘powerless’ Kuwait. In other words, this was a racialised form of legal argument, relying on tropes associated with the civilising mission. However, the particular form that the legal argument took was a Chapter VII authorisation. Downloaded by [University College London] at 16:22 10 September 2017 Race, racialisation and rivalry 179 This is important because a Chapter VII authorisation is one of the most uncontroversial ways in which a military intervention can occur. It does not incur the problems of ‘thresholds’ which have to be reached in the case of self-defence, such as whether an ‘armed attack’ has occurred or how ‘imminent’ an attack needs to be. Equally, acting under Chapter VII means that one is not limited to respond in a proportionate way to any armed attack but can take all measures ‘necessary’ to restore international ‘peace and security’ (Schachter 1991, 460). Despite the manifest advantages that were gained in adopting this particular form of legal argument, its usage has not been common. Terror and humanitarianism The next important part of this story occurs with NATO’s ‘humanitarian intervention’ in Kosovo. Here, although the SC characterised the situation as a threat to international peace and security (Resolution 1199), it did not call for the use of ‘all necessary measures’. Consequently, when the US-led NATO coalition declared it might intervene, it could not directly reference Chapter VII. Instead, it was forced to make different legal arguments. The first was that that although the SC had not explicitly called for intervention, this was implicit in its determination that the situation in Kosovo was a threat to international peace and security (Lobel and Ratner 1999, 152). This was reinforced by the fact that in this instance the SC was once again ‘paralysed’ by the geopolitical wrangling of the permanent members. This was taken much further by those who advocated ‘unilateral humanitarian intervention’. (Henkin 1999, Wedgwood 1999, Reisman 1999). They argued that the international legal order had changed and states were no longer the possessors of an untrammelled ‘sovereign’ right (International Commission on Intervention and State Sovereignty 2001, 11–19). States now had a duty, or responsibility, to protect their nationals. When states failed in this duty, it was necessary for the international community to intervene, ideally through the UN, but otherwise through the action of regional organisations of responsible law-abiding states (International Commission on Intervention and State Sovereignty 2001, 51–5). The war on terror has largely been justified in terms of self-defence. The pattern for this was set by the NATO-led military intervention in Afghanistan following the September 11 attacks. Following these attacks the SC passed Resolution 1368, which reaffirmed the inherent right of self-defence against terrorism. This was important because traditionally the UN had dealt with terrorism as a criminal activity (Frederking 2007, 160). This left the door open for military incursions against terrorists justified under Article 51 of the Charter independently of SC authorisation. This was the main justification deployed by the US in its occupation and transformation of Afghanistan. This necessarily involved transformations in the ‘traditional’ account of self-defence. Traditionally, self-defence is not conceived of as an armed reprisal. Military force can be deployed to repel an attack that has occurred, or prevent one which is imminent. Under the customary rules derived from the Caroline affair, imminence was defined as a situation where although the threat had Downloaded by [University College London] at 16:22 10 September 2017 180 Robert Knox not yet materialised the ‘necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation’. In respect to Afghanistan, it was argued that terrorism represented a continuous and continuing threat to the US. Of course, since there was no immediate threat, this also necessarily involved a changed understanding of what imminence was to mean. Here, the Bush administration argued that in the changed conditions of the post-9/11 age, where terrorists and terrorist-supporting states could acquire weapons of great destructive power and might attack at any time, such an approach could not work. Whereas a conventional military attack could be predicted by a build-up of troops or intelligence, attacks under the new conditions simply could not be anticipated. As such, the US could not let the ‘smoking bomb turn into a mushroom cloud’ (Blitzer 2003) and would have to intervene pre-emptively. The doctrine also ran into the problem that in the traditional understanding of selfdefence there also needed to be a connection between the armed attack suffered and the state against which force was used. This was negotiated in various ways – through the idea that there was a right of self-defence directly against non-state actors (Trapp 2007) or that rogue or failed states were incapable of controlling terrorism and hence needed to be intervened in (Murphy 2002, 50). The net result of this was the legal framework for the war on terror, whereby the US essentially asserted its right to spatially and temporally unlimited military intervention. Although this is known as the ‘Bush Doctrine’, it has in fact been the primary legal justification that the Obama government has deployed in its continuing military interventions (Koh 2010). One intervention not mentioned in the above accounts but which animated a great deal of political and legal debate was the second invasion of Iraq in 2003. Some – although none in the governments of the invading coalition – made an argument for pre-emptive self-defence (Sofaer 2003). Others made a humanitarian argument. This did find itself expressed by some government officials but was not the ‘official’ legal position. Instead the argument was that – even without a SC Resolution explicitly authorising the use of force – the SC had implicitly authorised this. Thus it was argued that because of Resolution 1441, which declared Iraq was in ‘material breach’ of its international obligations under Resolution 687, which revived the earlier Resolution 678, there was no need for a second resolution to authorise the use of force (Gray 2008, 358–66). Of vetoes and rivalries This brief excursion into the ways in which law has been used to frame military interventions is important because it allows us to pose an important question. While all of the interventions described above operate according to a racialised imperial logic, the particular legal form that this racialisation takes has varied. Crucially, given the uncontroversial nature and broad scope of Chapter VII authorisations, why has this been a relatively rare form of legal argument? The importance of this question is that it undermines any notion of racialization as primary and binary. While the war on terror and humanitarian intervention are Downloaded by [University College London] at 16:22 10 September 2017 Race, racialisation and rivalry 181 racialised forms of legal argument, this racialization could have been carried out through other, less controversial, legal arguments, so some other factor must be in play. One obvious point about the interventions described above is that they all legally authorise action outside of the SC, and so away from the possibility of a veto. The significance of this can be illuminated by examining debates on the form and nature of imperialism. As previously noted, many contemporary accounts rely on an understanding of imperialism which foregrounds almost exclusively the relationship between a ‘core’ and a ‘periphery’. While most accounts of imperialism do accept this division to some degree, there have been disagreements about the degree to which one can say that there is a unified ‘core’ of imperialist powers, or whether there is rivalry between them (Brewer 1990, 89). In the ‘classical’ accounts of imperialism, this was incredibly important. For Kautsky the tendency of imperialism was towards creating a single world trust, in which the imperialist powers would collectively exploit the rest of the world (1970). Against this, Lenin and Bukharin insisted that the tendency of imperialism was towards creating intensified military and political competition between rival imperialist powers (Bukharin 1972, 133–43). In present times the debate about rivalry has resurfaced sharply, although the question now concerns the development of the United States into the world’s ‘sole superpower’. Here the issue has been whether the strength of US imperialism is such that it has no ‘rivals’ to speak of, but is instead able to dominate the globe through its overwhelming military and economic power. In such accounts, the use of the legal doctrines of humanitarian intervention and the war on terror is seen as a sign of the unopposed dominance of US hegemonic ambition (Amin 2006, 112–13). However, the above examination suggests the contrary. While there was a period in which the particular imperialist coalition led by the US was able to act through international institutions in a relatively uncontroversial way, this was short-lived. Hence, in the brief period around the end of the Cold War, when Russia and China were at their weakest, it was possible to rely on arguments through the Security Council (Brenner 1991, 132). Yet as the position of these states in the international order was strengthened, they were able to plausibly threaten the power of wielding their veto within the SC. In all of the interventions described above, the resort to legal justifications outside of the SC was driven by the knowledge that a veto was forthcoming. In the case of Kosovo, it was widely understood that given Russia’s traditional closeness with Serbia, and political interests in the region, it would veto any attempt at authorising the use of force (Chinkin 1999, 842). Indeed, both Russia and China attempted to pass a resolution condemning the NATO bombing (Gray 2008, 42). The war on terror is more complicated. Initially, there was a great deal of international sympathy for the US, and Russia and China both had an interest in seeing an end to the Taliban (Frederking 2007, 168). However, even at the time, the Chinese government was sufficiently assertive that it attempted to impose a series of conditions on any military mission, and it was likely for this reason that the United States instead sought to rely on self-defence (Frederking 2007, 165). By the Downloaded by [University College London] at 16:22 10 September 2017 182 Robert Knox time of further interventions under the rubric of the war on terror, Russia and China had grown sufficiently combative as to render any SC Resolutions unlikely. Here, therefore, it seems that the particular form of legal argument adopted, was driven by the need to circumvent imperialist rivals. Viewed from this perspective, we can begin to see further commonalities. Essentially, in the cases surveyed above a similar pattern of argument has occurred. When the US (and its allies) were blocked by the threat of a veto by the SC, it was necessary to articulate a legal doctrine that would give them freedom of action. When such a legal doctrine was articulated it always began by positing that an event, or series of events, represented a threat to the international system as a whole. Following this, it was then asserted that owing to the actions of the certain states – typically Russia and China – who were acting against the interests of the world order, the ‘normal’ channels of international law were blocked. As such, the argument proceeded, it was necessary for a select group of states to act as guardians of the system, moving outside of its ‘normal’ channels in order to protect it. Crucially, the rival states are not part of this select group and so are not able to rely on these special legal privileges. This structure of legal argument bears a great deal of similarity to what Gerry Simpson has called ‘legalised hegemony’. Simpson argues that the international legal order has been structured by the presence of elite states with special legal ‘privileges, rights and duties’ (Simpson 2004, 68). In this system, elite states are able to entrench their status through international law, by claiming to uphold the system as a whole. In Simpson’s account, one can only find the presence of Great Powers when they act collectively to guard the system as a whole. Consequently, for him, during the Cold War there were no Great Powers, just ‘superpowers’ vying for dominance (2004, 75). Here, then, Simpson also reflects a ‘binary’ understanding of imperialism. Yet this seems unwise. Taking the last 100 years, it can hardly be said that ‘harmony’ between the major powers has characterised their interactions or their position in the international legal system. Instead there have been two world wars, and a Cold War that Simpson explicitly argues was not one of Great Powers. Thus, on Simpson’s own reading, what he describes as the ‘normal’ situation of the international legal order would in fact be aberrant. If, on the other hand, we understand the linkage between attempts to articulate legalised hegemony and inter-imperialist rivalry a different picture emerges. Rather than seeing legalised hegemony as a sign of unified imperialist strength we can now see it as a sign of fragmented imperial weakness. Imperialist states attempt to legally entrench their hegemonic position when their rivals are able to act through the ‘normal’ channels of international law and so block their ability to act. On this reading, the doctrines of humanitarian intervention and the war on terror are a response to the increasing power of China and Russia internationally, which is reflected in their willingness to use the ‘normal’ mechanism of the SC to thwart their imperial rival. In response to this, the United States has attempted to create legal doctrines that entrench its ability to intervene in the peripheries without running the risk of a veto. A necessary component of this is also that these other states cannot use these doctrines and intervene in such a way. Downloaded by [University College London] at 16:22 10 September 2017 Race, racialisation and rivalry 183 The racialised nature of these doctrines needs to be seen in this light. Most obviously, we can no longer see race as the ‘primary’ issue here. The drive to create ‘Others’ is not able to explain the particular legal forms that racialisation takes. It is more conjunctural issues that condition this form, with inter-imperialist rivalry being a key aspect of these conjunctural issues. This also sheds light on the flaws of the ‘binary’ account. The issue is not simply who is intervening and who is being intervened in, but also, who is permitted to intervene and who is not. Imperial rivals themselves are cast in racialised roles: usually in terms of being irrational or selfish, which is said to be deeply rooted in their internal, non-liberal regimes. This – in a more mild form – mirrors the colonial language of civilisation. The purpose of this characterisation is both to justify acting outside of the SC and to prevent these rival states from relying on these doctrines. Crucially, however, such doctrines are not designed to justify direct military intervention against the rival states. In this way a rigid civilised/uncivilised dichotomy is problematised because there is a more fragile attempt to articulate a hierarchy within the advanced capitalist countries. Here, one particularly pertinent example would be the attempt to divide between ‘Old Europe’ and ‘New Europe’ in the run-up to the 2003 Iraq war. However, the most important examples in this respect are Russia and China. Hence in the 2002 National Security Strategy speech, alongside the idea of rogue states there were heavy references to ‘Russia’s uneven commitment to the basic values of freemarket democracy’ and China ‘following an outdated path’ of ‘threaten[ing] its neighbors’ (National Security Strategy 2002). Even with Obama’s ‘liberal’ 2010 National Security Strategy one can find similar references. Indeed, in November of 2011 Obama demanded that China ‘act like a grownup’, whilst outlining his plans to expand and consolidate US influence in the Asia-Pacific region (The Guardian 2011). Inter-imperialist rivalry has therefore been central in two respects. First, the particular legal form that the racialisation of the peripheries takes is driven by the need to undercut imperial rivals. Second because these rivals are themselves directly racialised, so to prevent them from utilising these doctrines and undermine their position in the world order. Materialist race theory History, rivalry, territory Although the above account has been limited primarily to considerations of the law on the use of force, it has much broader implications. This chapter has argued that while the law on the use of force clearly is racialised, one cannot simply understand this racialisation as a process of creating a group of ‘Others’, who are outside of the normal protections of international law and can be intervened in with impunity. Instead, it has argued that one of the crucial dimensions of racialisation is to carve out a space for imperialist states and their allies to act in the face of rival interests, Downloaded by [University College London] at 16:22 10 September 2017 184 Robert Knox while at the same time attempting to racialise those rivals in such as way as to prevent them from utilising these doctrines. This dynamic does not simply occur at the level of the law on the use of force. For instance, James Gathii (2002) has argued that inter-imperialist rivalry was a central part of the law on the acquisition and maintenance of title to territory. While it is clear that these rules initially served to posit non-European (and perhaps more importantly, non-capitalist) territories as mere ‘objects’, thus rendering them open to European acquisition and colonialism, the rules that concerned this acquisition of territory were concerned with regulating the relative claims of different European powers (Gathii 2002, 599). The particular modes in which territory could be acquired and the relationship between them was always rooted in the European competition to exploit the non-European peripheries. One ought not to forget, for instance, that while the Berlin Conference did impose European territorial organisation on non-European societies, this was largely in response to inter-imperialist rivalries. The scramble for Africa was seen as generating intense rivalry between European powers, which needed to be managed. The aim of the Conference was to clarify how Africa was to be divided and according to what rules, so as to mediate between different European claims. Thus, in the same moment international law was both subordinating non-European societies and mediating between the various European states that were claiming these territories. Thus, as Matt Craven notes, one cannot simply view treaties between colonial powers and tribal chiefs as being purely concerned with the relationship between colonial powers and tribal chiefs: It is perfectly plausible to argue that, so far as the colonial powers were concerned, such treaties were not concluded with the local ‘sovereigns’ in mind at all, but functioned rather as a means of demonstrating a relationship of authority or control to other European powers. (Craven 2007, 21) If one was to deal with these questions purely in terms of the ‘primary/binary’ understanding – in which the international law on territory was simply about the creation of racialised ‘Others’ whose land could be appropriated – then the question arises as to why law was needed at all? One might, perhaps, argue that it served a justificatory or ideological role. But justification for whom? Surely not for those who were subject to imperial and colonial domination and whose resistance occurred irrespective of what international law decreed. Equally, it seems unlikely that it is designed to assuage any doubts of the populaces of imperial metropoles, who had very little access to international legal expertise. Even if one were able to construct such an argument, it could not account for why this racial ideology would take the specific form of law. The most distinctive feature of law is that it resolves disputes between abstract, formally equal actors, whilst maintaining their equality (Miéville 2005). Internationally, the disputes between abstract, formally equal actors can be nothing other than inter-imperialist Downloaded by [University College London] at 16:22 10 September 2017 Race, racialisation and rivalry 185 rivalry: with the historical actors in the Family of Nations, treating each other as formal equals whose disputes arose over the ‘property’ represented by the ‘uncivilised world’. As such, we might conclude with Pashukanis that the ‘real historical content of international law, therefore, is the struggle between capitalist states’ with the remainder ‘a simple object of their completed transactions’ (Pashukanis 1980, 172). Anghie (2005, 6) argues that simply focusing on the question of ‘order among sovereign states’ – which has been a central concern of the international legal discipline – is incorrect because it cannot ‘illuminate the prior question of how certain states were excluded from the realm of sovereignty in the first place’. On one level this is absolutely correct. However, he further argues that the real generating force of international law is its confrontation with and management of cultural difference (Anghie 2005, 37). The problem with this account is that it falsely assumes there is a duality between these two approaches. What the above suggests is that the management of cultural difference and the question of ‘order among sovereign states’ are part of the same process of imperialism. Here we can say that law articulates both in the same moment. Thus, in their rivalries, imperialist states need to assert their interests as against other imperialist states, and this is achieved through the form of law, which acknowledges their status as formally equal. In the absence of this dynamic it is difficult to know why it is that a need for law would have arisen in the first place. Territory could have been appropriated through direct force, and any number of justifications could have been deployed to defend this. Race and rivalry The consequence of all this is that it is necessary to go beyond seeing ‘race’ as the primary driving force of legal argument. It is only in this way that the particular legal forms that racism takes can be adequately accounted for. Interestingly, the question of the changing forms of racialisation was also one that dominated Franz Fanon’s attempts to theorise a materialist concept of race. Fanon was clear that racism can in no sense be seen as the primary driving force of imperialist processes (2008, 100), and instead argued that it must be traced to the material structures of those societies which exhibit racism (2008, 87 and 202). As such, he viewed it as his task to trace the material conditions that produce race as a specific social relation. Like many authors, Fanon began with the idea that racism arises from the phenomenon of exploitation. In basic terms, he argued, racism is generated by the ‘shameless exploitation of one group of men by another which has reached a higher stage of technical development’ (1967, 38). In his account racism is the ‘most visible’ and ‘day-to-day’ element of the ‘systematised hierarchisation’ that results from imperialist exploitation (1967, 32). For Fanon the material basis of imperialism – that of capitalist exploitation – necessitates the oppression and transformation of subject populations, as well as the justification for this exploitation. This gives rise to forms of racial difference, which posit subject populations as inferior and compel practices aimed at erasing their distinctive cultural identities Downloaded by [University College London] at 16:22 10 September 2017 186 Robert Knox (Fanon 1967, 41). At the same time race is not reducible to this basic relationship. The material conditions of imperialism mean that ‘race’ is not simply a ‘superstructural’ phenomenon, but rather takes on a key role in organising the distribution of the material benefits of imperialism (Fanon 1963, 40). While arguing that this basic logic is what gives rise to the general phenomenon of racism, Fanon was also keen to understand the way in which specific material configurations gave rise to distinctive forms of racism. For Fanon, if racism was part of a broader system of imperialist exploitation, then changes in this system would also result in changing forms of racism (1967, 32). In his account, with the development of more complex forms of capitalist exploitation, racism moved from a crude, biological determinism, to a more subtle form of cultural racism, since the exploitation of which racism is an articulation becomes increasingly covert: Progressively, however, the evolution of techniques of production, the industrialization, limited though it is, of the subjugated countries, impose a new attitude upon the occupant. The complexity of the means of production, the evolution of economic relations inevitably involving the evolution of ideologies, unbalance the system. Vulgar racism in its biological form corresponds to the period of crude exploitation of man’s arms and legs. The perfecting of the means of production inevitably brings about the camouflage of the techniques by which man is exploited, hence the forms of racism. (Fanon 1967, 35) Thus, while Fanon did – to some degree – subscribe to a ‘binary’ understanding of racism, he nonetheless attempted to explain its changing forms by reference to the transformations in material conditions. While this does provide the foundation of what a materialist account of race’s role in international law might be, it does not yet provide a sufficient explanation for how we might understand the role of inter-imperialist rivalry. The particular understanding evinced by Fanon is obviously one which has undergirded a number of materialist accounts of race. Indeed the very idea of a ‘global colour line’ is premised upon such an account, since it concerns ‘how far differences of race, which show themselves chiefly in the color of the skin and the texture of the hair, are … the basis of denying to over half the world the right of sharing [in] … the opportunities and privileges of modern civilization’ (Du Bois 1970, 258–9). However, such accounts fail to deal both with the explicit racialisation of imperial rivals that takes place in legal terms and with how the racialisation of the exploited is driven by this rivalry. Despite some rhetorical declarations to the contrary, one ought not to overstate the degree to which these authors actually hold to a ‘Manichean’ or binary vision of racialisation, in which the only division is between ‘White’ and ‘not-White’. Fanon, for example also argued that racialisation also involves stratification. In a process that Fanon dubs the ‘racial distribution of guilt’, he argued that a key move of imperial powers is to differentiate between the various oppressed and exploited Downloaded by [University College London] at 16:22 10 September 2017 Race, racialisation and rivalry 187 minorities, so as to co-opt them and set them against one another. Hence, the Arab is told the Jew exploits him, the Jew is told he is better than the Arabs, the Negro is told he is the best soldier in the Empire, and so on (Fanon 2008, 103). In this way racial ‘inferiors’ are subject to further ‘sub-divisions’ and hierarchies, with relative levels of privilege and entitlement flowing according to these sub-divisions. This enables oppressed populations to be better managed and for their resistance and antagonism to the existing order to be diverted and channelled. This understanding of the role of race as stratifying the oppressed and exploited is one which has also driven a number of materialist explanations of the domestic role of racism. Materialist scholars of labour and race, such as David Roediger, have stressed the role that racial discourse has played as a ‘strategy of rule’ through constituting a certain part of the working class as racially privileged – attracting a series of economic, political and ideological benefits – and therefore enabling them to divide and manage labour (Roediger 2008; Roediger and Esch 2012). What these analyses point to is that on top of a fundamental division thrown up by imperialist exploitation, processes of racialisation are shaped by a number of ‘tactical’ and ‘conjunctural’ imperatives. While managing particular antagonisms is one important aspect of these, it is not difficult to see how rivalries with other powers also enter into the picture. Roediger, for instance, notes that in seventeenthcentury America ‘[m]ercantile goals combined with security concerns to encourage continued distinctions between Indian tribes and individuals … not as an undifferentiated race’ (2008, 21). Here, a vital element determining the racialisation of ‘Indians’, was the desire to secure exclusive trading rights and undercut rival powers. This, then, explains how inter-imperialist rivalry might be able to enter into a materialist account of racialisation. Equally, once this concern with rivalry is brought into the issue of stratification more broadly, we can ask why racialisation might not function directly to stratify potential rivals? One can imagine explanations for why this was not taken up by ‘Third World’ Marxist theorists of race. At the time in which they were writing, the ‘Third World’ was in the midst of a generalised uprising against the colonial and neo-colonial powers. In this struggle they were frequently aided by the USSR and the other Soviet bloc countries, which they understood to be in some sense non-capitalist. In these conditions, it is unsurprising that inter-imperialist rivalry does not feature heavily, although there was some acknowledgment of the differences between various imperial powers (Fanon 1963, 79) because much of the imperialist world was unified against them, and so not warring amongst itself. Yet in the period that followed, the changing material conditions gave rise to a new configuration in which the ‘Third World’ became an entirely different political actor – either disempowered or de-radicalised. At the same time, importance has shifted to the actions of the United States and its contestation by European states, Russia and China. Thus if, with Fanon, we expect racial forms to change in line with material conditions, we can argue the following: racialisation is directly generated – in part – by imperialist exploitation, positing a Manichean division in which the oppressed and exploited are seen – and treated as – inferior to their Downloaded by [University College London] at 16:22 10 September 2017 188 Robert Knox oppressors and exploiters. Yet within this Manichean division there are also further ‘sub-divisions’ in which the racially ‘inferior’ are themselves sub-divided into degrees of greater on lesser inferiority. It is in this way that race becomes linked to the management of social antagonism. At the same time, the material structure of imperialism also creates intense rivalries. The dual tendencies within capitalist imperialism of territorialisation (Anievas 2008, 201) and the intensification of international competition serve as an important material condition for the generation of racial discourses. This basic material drive is fundamental in conditioning the forms that the racialisation of the peripheries takes, with imperial powers attempting to assert different forms of racialisation so as to tactically undercut their rivals in addition to tactically stratifying the oppressed. At the same time, this international competition directly throws up discourses of racialisation against rival imperialist states. Such discourses have been – in one way or another – a relatively common feature of life under capitalism, particularly in periods of increased economic and military competition or periods of crisis. However, these are much weaker forms than those generated through exploitation, liable to shift at a given moment and are much more amenable to tactical deployment. Given international law’s close connection to processes of imperialism, this is reflected in the racial patterns that international law embodies and articulates. Conclusion The ultimate conclusion of this chapter is that we must understand the ‘global colour line’ in more complex ways. It is not simply a ‘line’ which divides black from white, or civilised from uncivilised. While there is a basic, fundamental racialised division, founded on the differentiation between the advanced imperialist powers and the peripheral formations, this itself shifts according to a whole series of conjunctural and tactical imperatives. At the same time, there are a number of other lines which intersect with it, as imperial powers attempt to stratify their rivals, without ever putting them on the other side of the more foundational colour line. Understanding this complex picture is key to understanding how to navigate contemporary imperialism. Failing to take this into account can lead to an overly simplified picture in which opposition to the US is seen as always and automatically ‘anti-imperialist’. This becomes even more important in the context of international law’s intimate relationship with these racialised processes. This chapter has attempted to show that international law plays an absolutely key role in instantiating the racialised relations of imperialism, with rivalry being a key part of this process. A corollary of this is that one must be extremely suspicious of those claiming to uphold the UN as against US unilateralism. This has been a very strong tendency among the left, widely considered. As this article has argued, even the most ‘normal’ and ‘uncontroversial’ multilateral interventions remain racialised and imperialist (Miéville 2008). Thus, as Akbar Rasulov has argued, one should understand much of the opposition to the US ‘unilateralism’ as the equivalent of a kind of feudal socialism. Downloaded by [University College London] at 16:22 10 September 2017 Race, racialisation and rivalry 189 Other powers attempt to re-assert their own position in the imperial order through clinging to international law in a manner analogous to the feudal aristocracy rebuking the bourgeoisie (Rasulov 2010, 466). In these circumstances one cannot simply counterpose the imperialist, unilateral and racialised uses of force by the US to the UN Charter regime. To do so is to miss the way in which these oppositions are playing out a contested process of inter-imperialist rivalry. Any anti-imperialist project must instead take aim at the material relations of imperialism and their complex racial articulation, a project that must go beyond the mere assertion of legality. Note 1 My thanks to the organisers and the peer-reviewers of the original CRIA symposium where a rather different version of this article was debuted. For this particular article, I would like to extend my thanks to the usual Hive-mind subjects (you know who you are) for providing me with a sounding board for these kind of ideas (and frequently for the Port which generated them); putting themselves through the horror of reading my drafts, and enduring my neurotic responses. Most of my thanks have to go to Alex Anievas, for commissioning this, reading it, and then relentlessly prodding me for a draft until I felt ready to strangle him. As usual, I am not allowed to blame any errors on anyone else, so all errors of style and substance remain mine alone. 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