World Trade Law After Neo-liberalism
| Author | Paavo Kotiaho,Andrew TF Lang,Robert Knox,Grietje Baars,Akbar Rasulov |
| DOI | 10.1177/0964663914533048 |
| Date | 01 September 2014 |
| Published date | 01 September 2014 |
| Subject Matter | Dialogue and Debate |
Dialogue and Debate
Social & Legal Studies
2014, Vol. 23(3) 403–456
World Trade Law After
ª The Author(s) 2014
Reprints and permission:
Neo-liberalism
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0964663914533048
sls.sagepub.com
Akbar Rasulov
University of Glasgow, UK
Few concepts in contemporary social debate have had such a confused history as the
concept of neo-liberalism. Though it has come for the most part to be associated with
the ideological legacy of the so-called Washington Consensus, beyond this limited
convention, the use of the term both in academic writing and in the broader popular
discourse has remained decidedly inconsistent (Steadman Jones, 2012: 10). The field
of international legal studies has hardly been an exception in this regard. Whilst it is
not the aim of this symposium to try to settle once and for all what meaning should
be given to the idea of neo-liberalism in modern international law, a large part of what
has motivated the writing of the essays collected here comes from the attempt to think
through the various theoretical issues raised precisely by that kind of a challenge.
Despite their numerous differences, the essays presented all share the same start-
ing hypothesis. The single most significant episode in the evolution of the contem-
porary international legal system over the course of the last half-century has been
the rise of the neo-liberal model of governance in the area of international trade
regulation.
Contrary to what the discipline’s traditional understanding would tend to suggest,
the key turning point in the historical trajectory that has led to the emergence of the
present-day configuration of the international legal–political arena has to be sought
neither in the eruption of the so-called global war on terror at the start of the 2000s nor
in the excessively overmythologized transition from the bipolar security paradigm of
the cold war to the multipolar security paradigm of the ‘new world order’ in the early
1990s. Nor, for that matter, should it be sought, as numerous liberal internationalist
commentators have tended to suggest, in the rapid expansion between the early
1970s and the late 1980s of the international human rights regime, but rather in that
wave of fundamental structural transformations, which had swept through the field
of international trade regulation between the mid-1970s and the early 1990s, a period
which, for reasons explained in Andrew Lang’s essay, can today be called international
law’s neo-liberal revolution (Lang, 2014). To understand the essential logic of the
existing international legal system, one needs to understand the essential structure of
this particular process: to work out how it began and developed, what stages it went
through, which characteristic features defined each of these stages, and what sort of
404
Social & Legal Studies 23(3)
factors enabled its successful progression. Only by turning our attention to the question
of how exactly this process has occurred in practice – how it has manifested itself at the
level of the corresponding normative and institutional constructs – can we ever begin to
identify what sort of operative dynamics underpins the organisation of the contempo-
rary system of global governance, including what patterns of internal contradictions
and transformative possibilities are inscribed within its constituent structures, be it
at the level of political action, ideological projects or legal reform.
Or, at least, that is what one of the main themes at the heart of this symposium
looks like today. It has not always been like that. The essays collected in these pages
find their origins in a research workshop held at the University of Glasgow in
November 2011. From simply aiming at first only to compare notes about how the
neo-liberal turn has actually played out at the level of the positive legal materials,
our ambition progressively turned towards trying to work out the internal logic of
international legal history and in doing so uncover whatever latent regularities there
could be found beneath the various positivist ‘surfaces’. If accurately decoded, the
assumption went, the general pattern of such regularities might enable us to pin
down those all-important hidden mechanisms by which the rise and decline of, say,
different forms of legal-institutional design and patterns in the construction of inter-
national legal regimes could be connected and correlated with the rise and decline of
different modes of international legal consciousness and, through this, the evolution
of international law’s broader systemic functionality in the context of the contempo-
rary system of global governance. Over time, however, this vision too began to
transform. When we had first set out, our most immediate aim was to try to produce
a rhetorical intervention in a discursive conjuncture populated primarily by main-
stream international lawyers working on issues concerning the relationship between
international trade law and the international human rights. The principal debate at
the heart of this discursive conjuncture, as we saw it, was centred around a deeply
problematic assumption, namely, that the traditional enterprise of international
human rights not only stands entirely apart from the broader dynamic of international
trade governance, but that it also offers the most effective ideological platform from
which the negative consequences produced by the latter – in particular its support
for the politics of market fundamentalism – could be critiqued and countered.
As a result of such a configuration of the discursive–rhetorical space, the general course
of the legal debate about international trade policy had turned in recent years in an entirely
unhelpful direction. Increasingly, the terms of this debate have come to be dominated by
questions that appear to lend themselves to no meaningful resolution, even as they con-
tinue to encourage the production of ever more passionately argued academic writings –
questions like ‘what role should international human rights law play in the development
and execution of global trade policy?’ or ‘how can the institutional effects induced by glo-
bal trade policy be most effectively contained to help uphold the values advanced by the
international human rights system?’ This symposium, as we initially envisaged it, would
aim to challenge and, hopefully, displace this way of structuring the trade-and-human-
rights debate, by emphasising, inter alia, the various deep-structural linkages that exist
between the two legal regimes as well as by highlighting the numerous patterns of doc-
trinal and conceptual indeterminacy inscribed within either of them.
Rasulov
405
What started out as a fairly conventional critique-of-ideology exercise soon, however,
developed a fundamentally different theoretical ‘accent’. Having decided to use Lang’s
recently published monograph on the history of the international trade regime (Lang,
2011) as the jumping-off platform for all our subsequent discussions, we very quickly
discovered that the reactions it has inspired and triggered amongst us progressively took
us farther and farther away from our original vision. By the time we came to exchange
our first drafts with one another, the principal focus of our exercise, it became clear, was
no longer limited to simply trying to critique and displace the standard narratives about
international trade and international human rights regimes. The intervention that we
were now effectively trying to produce did not so much target the field of international
trade law scholarship anymore as it did the much broader debate about international legal
historiography lato sensu. And it is this that draws the inquiry towards questions of
‘method’ and ‘historical theory’. What should international legal history be a history
of? How can one best explain the ‘production’ of international legal events? What marks
the ‘movement’ of these events through time? How does historical change manifest itself
in the medium of international law?
What stands behind these inquiries is a shared sense of anxiety about the absence
within the modern critical legal tradition – or at least that part of it to which we acquired
access – of what one might call for lack of a better descriptor a ‘social theory of inter-
national law’, or, better perhaps, a theory of the social production of international legal
knowledge. How did the shifts in the socialisation patterns within the international trade
community over the last half-century relate to the changes in the conceptual apparatuses
and reasoning techniques deployed by international trade lawyers? How did these two
trajectories map onto the wider patterns of institutional evolution of the global trading
regime? What were the connections and the underlying mediating mechanisms by which
these processes correlated to the structural transformations in the internal logic of late
capitalism?
The contributions to this debate concern the trajectory of the neo-liberal turn in
international trade governance, not so much as a story about the substantive evolution
of the international trade regime per se as a story about the mutual determinations
between the institutional and the ideational aspects of the international legal architec-
ture, including:
the scale of the participatory dynamics (a treaty for a few parties vs. a global com-
pact bringing together several dozen member states) and its influence on the
respective pathways for the internal transmission of professional doxa (a close-
knit club...
To continue reading
Request your trial