Subalternity and International Law: the Problems of Global Community and the Incommensurability of Difference
| Published date | 01 September 1996 |
| Author | Dianne Otto |
| DOI | 10.1177/096466399600500304 |
| Date | 01 September 1996 |
| Subject Matter | Articles |
337-
SUBALTERNITY
AND
INTERNATIONAL
LAW:
THE
PROBLEMS
OF
GLOBAL
COMMUNITY
AND
THE
INCOMMENSURABILITY
OF
DIFFERENCE
DIANNE
OTTO
University
of Melbourne
RECURRING
FEATURE
of
post-Cold
War
new
world
order
nar-
ratives
is
the
assertion
that
a
democratic
reshaping
of
the
international
jL
community
is
underway.~
However,
a
largely
uncontested
silence
surrounds
the
implications
of
expanding
democratization
for
international
law-making
processes
(Crawford,
1993).
The
global
production
of
the
new
democratic
imperative
has
focused
attention
on
issues
of
governmental
legit-
imacy
within
states,
effectively
circumventing
questions
of
representation,
participation
and
legitimacy
in
the
global
polity
(Franck,
1992;
Teson,
1992).
The
validity
of
this
manoeuvre
relies
on
continuing
acceptance
of
the
United
Nations
(UN)
model
wherein
democratic
pretensions
always
already
capitu-
late
to
the
de facto
balance
of
global
power.
Successful
management
of
this
treacherous
terrain,
so
as
to
prevent
demo-
cratic
demands
from
spilling
over
into
the
international
arena,
relies
on
a
classical
liberal
conception
of
the
international
community
as a
citizenry
of
formally
equal
nation-states
which
relegates
non-state
groupings,
individuals
338
and
humanity
as
a
whole
to
partial
and
contingent
access,
if
at
all,
to
inter-
national
democratic
and
legal
subjecthood.
In
this
article,
I
explore
the
pro-
ductive
tensions
between
emancipatory
ideas
of
democracy
and
the
current
state-based
structure
of
the
international
community.
From
these
tensions
emerge
possibilities
for
reshaping
the
processes
by
which
international
law
is
formulated.
In
particular,
I
am
concerned
to
ask
whether
it
is
possible
to
imagine
processes
whereby
non-dominant,
non-elite,
subaltern
(Said,
1988:
vi)2
individuals
and
groupings
could
participate
as
subjects
of
international
law.
To
address
this
question
I
draw
on some
of
the
theoretical
perspectives
developed
by
members
of
the
Indian
Subaltern
Studies
Collective
(Guha
and
Spivak,
1988).
Of
critical
importance
is
how
the
multiplicity
of
global
difference
is
treated:
whether
difference
is
perceived
as
a
threat
to
international
order
or,
alterna-
tively,
as
part
of
the
dynamic
of
a
transformative
vision
of
international
com-
munity.
Members
of the
Subaltern
Studies
group,
in
tracing
the
colonial
techniques
and
strategies
which
led
to
the
formation
of
the
nation-state
of
India,
suggest
that
modern
European
knowledge
(modernity)
is
the
standard
and
foundation
against
which
difference
is
understood
in
the
postcolonial,
and
now
post-Cold
War,
world.
As
a
result,
difference
in
the
modern
frame
is
only
recognizable
if
it
is
commensurate
or
coextensive
with
the
European
imagination.
All
other
difference
is
relegated
to
a
clamour,
a
shadow
world
of
superstition,
randomness
or
criminality
because
it
cannot
be
articulated
on
its
own
terms
within
the
European
frame
(Guha, 1988c).
This
silencing
and
mar-
ginalization
of
incommensurability
is
the
focus
of
the
Subaltern
Studies
project.
The
project
suggests
various
strategies
which
could
assist
in
chal-
lenging
the
exclusionary
devices
of
modernity
in
ordering
the
global
com-
munity.
My
discussion
of
these
issues
is
divided
into
four
sections.
First,
to
provide
a
context
for
consideration
of
Subaltern
Studies
possibilities,
I
examine
the
foundations
of
the
international
order
that
was
revitalized
by
the
establish-
ment
of
the
UN
in
1945.
This
examination
reveals
its
European
history
and
commitment
to
an
imperialist-designed
state-based
conception
of
the
inter-
national
community.
The
attendant
law-making
processes
authorize
and
per-
petuate
its
Eurocentric
foundation,
frustrating
the
participation,
and
limiting
the
power,
of
non-European
states.
Second,
I
explore
the
most
significant
challenge
to
European
domination
of
the
international
polity
during
the
Cold
War
years:
a
challenge
precipitated
by
the
last
reshaping
of
the
international
community
with
the
recognition
of
decolonized
states.
From
the
early
1970s
a
united
and
determined
lobby
of
Third
World3
states,
calling
themselves
the
Group
of
77
(G77),
challenged
Europe’s
continuing
global
economic
domination
by
attempting
to
promote
more
egalitarian
and
democratic
law-making
processes
through
the
UN
General
Assembly
(GA).
Third,
I
critique
the
strategy
of
the
G77
drawing
on
Subaltern
Studies
perspectives4
which
suggest
that
the
postcolonial
modern
state
remains
stead-
fastly
a
European
construction,
albeit
with
various
indigenous
interpretations,
To continue reading
Request your trial