The Difficult Relation between International Law and Politics: The Legal Turn from a Critical IPE Perspective

Abstract

International law is currently undergoing a major transformation that has provoked a ‘legal turn’ in the field of International Relations. At the heart of this transformation are the juridification of international politics and subsequently the judicialisation of international law. This contribution argues that scholars of critical International Political Economy have not yet paid enough attention to this process. What is needed is a theory of international law that is able to grasp the societal implications of this transformation. In a first step some accounts drawing on Antonio Gramsci and Evgeny Pashukanis are presented, with a view to making their theory fruitful for analysing international law. Against the background of an empirical study that compares the global regulation of trade in goods with the trade in services, delivered notably through natural persons, some major shortcomings of these accounts are outlined. The last part of the contribution presents some ideas on how to further develop a critical theory of international (trade) law that introduces a communicative dimension into the legal turn with a view to distinguishing between different extra-economic dynamics.

Keywords:

• legal turn
• GATS
• UNESCO
• Poulantzas
• Pashukanis
• Habermas

Notes

The author is grateful to Jean-Christophe Graz, John Kannankulam, Nafy Niang and the three anonymous reviewers for their comments on an earlier draft, and in more general terms to all members of the research project on standards and international relations at the University of Lausanne, funded by the Swiss National Science Foundation, for the stimulating discussions.

This interpretation, which reduces Gramsci's concept of hegemony to a theory of elites, can also be found in the work of other neo-Gramscians who seek to use it to explain changes in international politics on the basis of an analysis of elite networks(see van der Pijl 1998; Plehwe and Welpen 1999; van Apeldoorn 2001).

A number of scholars have criticised Pashukanis for privileging the sphere of circulation to the detriment of the sphere of production and thus neglecting exploitation (Holloway and Picciotto 1978). In light of the inseparability of these two spheres in Marx's theory of capitalism, this criticism needs to be put into perspective.

I focus in this contribution on the GATS, but a similar structure characterises regional and bilateral trade agreements. See, for instance, the Free Trade Agreement between EFTA States and the United Mexican States, the Free Trade Agreement between the EFTA and Chile, and the agreement between EFTA and Singapore (Hartmann 2008).

This list is based on the United Nations' classificatory system for all economic activities (see Koehler 1999). This is the International Standard Industrial Classification. The GATS list currently contains 155 different categories which are divided into 12 main groups. Additions to this list can be made as and when needed.

The current interest of international organisations in interrelating development and migration has to be seen in this light (see Global Commission on International Migration 2005).

So far only one discipline exists, for the accountancy sector, whose entry into force is still pending due to the delay of the current negotiation round (see Arnold 2005).

For example ISO/IEC 17024:2003 on conformity assessment, which regulates the requirements for bodies certifying persons, or ISO 10015 on the quality of training standards. ISO 29990, for learning services for non-formal education and training (see ISO 2009).

Derogation is only permitted in cases where urgent problems of safety, health, environmental protection or national security arise or may arise for a member in the sphere of technical standards (TBT Agreement Art 2.10). In the sphere of Sanitary and Phytosanitary Measures, higher safeguard measures are only permitted if they can be scientifically justified (SPS-Agreement Art. 3.3).

Five conventions were established in the late 1970s and early 1980s: one convention for Latin America and the Caribbean (signed in 1975), one for the Arab States (1978), one for the European Region (signed 1979), one for Africa (1981), and one for Asia and the Pacific (1983). Furthermore there is an interregional convention for Arab and European States bordering on the Mediterranean (adopted in 1976).

Out of the 53 countries that have signed or accessed the Convention, 50 had ratified it by 2009. However, the ratification process was not completed without major controversy in some countries. The German Parliament ratified the Convention 10 years after the German government had signed it. It took the Netherlands 11 years and Belgium 12 years. For the current ratification situation see http://conventions.coe.int/Treaty/en/Treaties/Html/165.htm [Accessed 17 September 2010].

There is an ongoing discussion about whether Poulantzas' theory remains a ‘capital-theoretical’ approach, one that in the end reduces everything to the requirements of capital, or whether he opens up towards a ‘class-theoretical’ approach that emphasises contingencies (see Jessop 2008; Wetherly et al. 2008; Barrow forthcoming). In the ‘state derivation’ debate in the 1970s, Poulantzas was closely associated with the first position and thus seen to be in agreement with Pashukanis. However, a closer look at his work shows that such a clear-cut positioning is not possible. Poulantzas oscillates between the two positions and as a result he gets caught up in contradictions, notably when explaining the state, which he sees as the outcome of social struggles and thus the result of contingent processes, as well as functional for capital (Jessop 1990; Demirović 1997; Hirsch and Kannankulam forthcoming).

For an interesting comparison between Marx and Weber; see Wood (1995), and Sayer (1991).

The United States have made most use of this mechanism so far with 91 charges, followed by the EU with 79 cases (see Leitner and Lester 2009; WTO 2009b). These two WTO members have also attracted most complaints. Up to 2008 there was only one least developed country that had filed a case. By contrast, emerging economies have started to make use of this mechanism led by Brazil (24 claims), Mexico (20), India (18) and China (10).

For a overview of the cases provided by the WTO see http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm [Accessed 22 September 2010].

For an excellent analysis of the dependence of the information society with intellectual property rights as its major legal form on extra-economic elements such as the open source community which challenge this legal form see May (2008).

This ratification requirement makes the intergovernmental process also more cumbersome. For instance, the German parliament ratified the Lisbon Recognition Convention in 2007, 10 years after its foreign minister had signed the convention in Paris.