INTERNATIONAL LAW AND SOCIAL MOVEMENTS: CHALLENGES OF THEORIZING RESISTANCE BALAKRISHNAN RAJAGOPAL ‘TIONAL LAW Law Assocation, oeInternational Law and Social Movements: Challenges of Theorizing Resistance BALAKRISHNAN RAJAGOPAL” This Article offers an analysis of the key theoretical challenges that arise from the impact of local and transnational social movement action—as witnessed in Seattle in 1999—on international law and institutions. In spite of a vast scholarly literature in the social sciences on social movements and their relationship to the state and other actors, international lawyers have not engaged this literature so far. Given the increasing importance of non-state and individual action in international affairs, this Article suggests it is now timely to engage with this literature. This Article presents the oullines of a larger project to rethink international law through social movements rather than through states or individuals, as realists and liberals do. At the heart analysis in this article is the question of how international lawyers can understand the mass resistance around the world to ional Assistant Professor of Law and Development and Dir ‘of Technology. SID ty of Toronto Law Faculty Legal Theory for ber enormous enthusiasm and land Society Assocation and the Research Committe on the Sociology of Law, Budapet, “Third” World and the Iaterational Orde (forthcoming 2003).398 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41397 global legal structures, The article argues that international lawyers need a theory of resis simply one of governance, to ensure the ordinary people, who are ‘marginalized by the current global order, are properly heard. After outlining some of the key theoretical barriers in international law that prevent areal engagement with social movements, the Article explores some possible foundations for a cultural politics of international law that “would enable ‘international legal scholarship to pay proper regard to the empirical reality of international relations and to remain committed 0 the best cosmopolitan ideals of the discipline. INTRODUCTION. INTERNATIONAL LAW EACH OTHER. c g RETHINKING THE POLITICAL IN INTERNAT LIBERALISM AND MARXISM 4. Beyond Liberalism. B. Beyond Marxism... C. Toward a “Cultural Politics” . RESISTANCE AS AN ANALYTICAL CATEGORY IN INTERNATIONAL LAW.. A. Inspirations for Fe 1, Michel Foucaul 2. Frantz Fanon .. 3. Antonio Gramsci 4, Partha Chatterjee .. CONCLUSION san JONAL LAW: BEYOND “A focus on social movements with restructuring agendas itself incorporates a political judgment on how drastic global reform can best be achieved at this stage of history." Richard Falk, The Global Promise of Social Movements: Explorations atthe Edge 2003] INTERNATIONAL LAW AND SOCIAL MOVEMENTS 399 L—_ Intropuction The much-mal Genoa, and Washi meeting in Porto understanding mass movement acti driven several recent international legal developments (including the Ottawa Convention on Anti-Personnel Landmines,” the establishment of the World Bank Complaints Panel,’ the establishment of the World Commission on Dams,‘ the Doha Declaration regarding the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) and Public Health,’ an advisory opinion of the Intemational Court of Justice regarding the threat of use of nuclear weapons)® and the emergence of new soft law standards for corporate social responsiblity.” In most, if not all, of these actions, we social movements in the Thitd World have formed all those in the West and have transformed the poli ed “anti-globalization” protests in Seattle, (of Time, 12 ALTERNATIVES 173,173 (198). n0018.workdbankorfpnipn rat Private Complaint: The rasscots pressure 10 Feiterpet the TRIPS Agreement HIVIAIDS drugs se of Nuclear Weapons, 'a perceptive anal ety in making this case possible, ee RICHARD FAL, The Nuclear Weapons Advisory 1 New Jurispradene of Global Chil Society, m LAW IN AN EMERGING 55-88 (1998), 7. See Business and Human Right, ix Huwan Riis Ware WoRLD REFORT (2001), [Hwan Rucins—1s IF Avy OF Your BUSNESS? (2000) avalabe at p/w longs basistnsontenU\d2a3adeS MnlAl On soft law noes, See COMMITMENT AND ‘Tae ROLE OF NON-BINDING NORUS IN THE INTERNATIONAL LEGAL SYSTEM400 COLUMBIA JOURNAL OF TRANSNATIONAL LAW = (41:397 rulemaking and implementation in international law. Indeed, global forms are increasingly being produced and shaped thro\ interaction between States, international insti igly influenced by the everyday resistance of ordinary people. Despite these developments, international law does not yet have a theory of resistance international law re World social movements seriously. While takin seriously has never been an easy task aftermath of the attacks on Septembe war on “terror,” they have a great attention to are not also labeled as “terrori , can no longer pretend that mass resistance from the Third World does rot fundamentally shape its domain. Indeed, the central focus of the inquiry here must be: how does one write this resistance into international law? ‘The articulation of a theory of resistance in international law will both compel a fundamental rethinking of the very meaning of the term “Third World” as a collection of States in international law'” and raise profound theoretical stands, In the author presents some of the ingness of intemational lawye: 9. ‘The Hallan rime Minster is reputed wo have remarked, inthe aftermath of the fe Weeld Eeenomi Forum in Genoa 2003} ‘INTERNATIONAL LAW AND SOCIAL MOVEMENTS 401 intemational law that fakes into serious consideration the resi World social movements tional law approach to pol t analyzing international law through the lens of much more rewarding than analyzing it sphere on which it is based, which takes the state or the individual as the principal political actor. In Part IV, the author to articulate some bases for a theory of resistance in international law by drawing on the work of Michel Foucault, Aniono Gramsci, Frantz Fanon, and Para Chateree. Pat V isa brief conclusion. Il, INTERNATIONAL LAW AND SOCIAL MOVEMENTS: SEEING PAST EACH OTHER Despite the fact that international relations is no stranger to ‘mass action—epochal twentieth century development I, were catalyzed through ma sm, anti-colonialism, Marxism, jonally interested in governance, not resistance. As a result of lectual otientation, political and class in the United Board of of facts, the case itseif becomes the historical eve 12, Fora discussion, see ijra Pat land note 40 for iterate, 1, Brown , Bd of Educ, 347 US. 483 (1984).402 (COLUMBIA JOURNAL OF TRANSNATIONAL LAW (41:397 a cataloguing of factually abstracted ion to each other. ional tendency in Western domestic Iaw to ignore the contribution of the masses is a result of many factors that are too complex to examine here, but two that are discussed below are relevant to intemational law; they are problems of source and method." With regaed to the problem of source, lawyers tend to have juro-centric approach that focuses on the texts emerging from public institutions such as legislatures, courts such as the International Court tic and the World Trade Organization's of normative legitimacy and authority is ‘consistently’ the statist institutions, For example, environmental lawyers are more concemed with the regulatory behavior of the state than with the rise of environmental consciousness or the mass action that may have led to the regulatory behavior of the state. This has the result of ignoring the social origins of legal rules and institutions and, therefore, the role of laypeople in legal analysis. Regarding the problem of method, much of legal analysis is focused entirely on the cogency and the intemal logical structure of the language of the law. As such, the prescriptive stance of legal analysis focuses on figuring out the gaps, conflicts and ambiguities in the language of the law, even if to reveal the existence of ideology. While this focus is enormously valuable for many purposes, merely the structural flaws in legal reasoning does nothing to in particular social and political contexts and makes the law Took surprisingly static.” Furthermore, although a revelation of the internal incoherence of law may undermine the authority of law, it does not offer an indication of how it should be reformed. 1 See Syiposun Pang Treugh he Dor Soil Movmen eared Leg Scholarship, 90 U. Pa. L. Rev. 1, 54-5: y = 1S, Ts em is owed fom Robt M. Cove, The Supreme Cow, 1982 Tem Porevard: Nomoto Narang, HUY L RE 85-5080) se stane adopted by cftical legal A CRITIQUE OF ADIUOICATION: FO DES) scholars. See, eg, Duca’ 13-214 (1997). Even here, he 17. For a recent acknowledgement ftom a leading erical scholar, see MART Koskenntens, Te Gevite Crvitizex oF NATIONS: THe RISe AND FALL OF INTERNATIONAL [Law 1870-1960 2 (2002), 2003] INTERNATIONAL LAW AND SOCIAL MOVEMENTS 403 Incorporating the social dimensions of law into legal analysis—e.g., viewing the history of the sex discrimination doctrine in U.S. constitutional law as one that arose from a larger women’s suffrage movement rather than from the Fourteenth Amendment" —has vast consequences for legal reasoning, broader social reform, that law plays in reform. In international law, such incorporation leads to a mode of legal analysis that places much more si ‘on the consequences of particular legal rules and doctrines for those ‘who do not have a voice or power in the legal system'* and that, importantly, does not shy away from ackn ‘reinterpret international The tendency in Western domestic I contribution of the masses has been criti 5 recent years, One camp within the United States, a group of critical race theorists, feminists, and gay-lesbian theorists, has criticized this decontextualized, technocratic-rational model of law and legal history ‘on the ground that it ignores both the role that law plays in everyday life and empowerment and the role played by orc agents of legal transformation.” For them, t that has remained dominant in the United States so far is fatally flawed due to these bli spots, among others, and needs to be fundamentally reconcept d. Although some of their tings ruderce of Justice C.G. Weeramantry stands out as a shining example. issent in Legality ofthe Threat or Use of Maclear Weapons, 1996 20. For examples of ertial race scholar (05 That FORMED THE Movement (Ki eral, see ROBERTO UNGER, KNOWLEDGE408 (COLUMBIA JOURNAL OF TRANSNATIONAL LAW = {41:397 mover “interpretive communities’ through their personal experiences. ‘The other camp, a small number of legal theorists and along with several ‘These critiques include the works of: Joel Handler on other movements in the United States; Aust ‘identity and rights and cause lawyering;® Jierge movements, democracy, and rights; Alan Hunt and Neil Stammers. Sousa Santos on le; and human rights; e Diane Otto on human rights and’ post theory” and Aiton cal slip tas nt dey egal i a sane wot Menus, From Legal Pansplans to Transformative Justice: Human Righs 2003] INTERNATIONAL LAW AND SOCIAL MOVEMENTS 405 ‘out the elitist bias of extant rights theories and conceptions of democracy and have attempted to formulate general conceptions of would accommodate the role of subaltem communities and uals. ‘A central aspect of the two camps of above has been a scrutiny of the role that law nis study of the dynamic between the al aspects of social life and of the ional mobilization for the everyday forms of power struggl Stated differently, a soci this sense, these extra important’ arenas of boundaries of intemational law's resistance—human rights, Few of these persp law despite recent scholars! considers social movement World Polis: The Emergence of Global ‘Shave, Global Society and Global Responsibly406 COLUMBIA JOURNAL OF TRANSNATIONAL LAW = (41:397 cused on institutional practice agent as a given. This has resulted in an intemational law. Some leading, sch arguing fora right to personal identity that would pe law to accommodate a plurality of social agents (on the basis of class, Despite this attemp' spaces in the Third Indeed, the this argument cannot be pursued here, it is imp itis difficult to acknowledge the role of mass act law because of Poor, peasants, workers in the informal sector, illiterate women, and indigenous peoples whose resources are being destroyed, the legal ries—such as human rights—that are being used to represent s” of suffering” tend to have elitist blind spots. the emergence of a “globalization from tel GLoaAL VILLAGE: A Post-WESTPHALiaN PERSPECTIVE 37, Thomas Fach, Cl and Sper Con Lal, Ment and Commaniyin Law and Practice, 90 AM. J. INT'LL, 389 (1996). % 38 See Bai, Voices of Sufering andthe Future of Human Rights, supra note 29 2003) INTERNATIONAL LAW AND SOCIAL MOVEMENTS 407 IIL, RETHINKING THE POLITICAL IN INTERNATIONAL LAW: BEYOND. LIBERALISM AND MARXISM This Part will first provide 2 contextual introduction to the theoretical challenges that arise when we adopt a social movement perspective toward intemational law. The current interest in social movements must be traced to the historical context in whi popular mobilizations began the 1950s and 1960s, the principal forms of popul the Third World were organized around the “nat national liberation from colonial rate, and aroui structural transformation of the colonial/compradar economic and social orders within Third World countries.” Such mass radicalism radicalism was accompanied and followed by ions in Wester countries, such as: movements ionalism, women’s rights, and gay and in the United States; the Green movement in West Germany; and the 1968 student protests in France.” In the early 1970s, however, after the engineered “fall” of Allende in Chile, the of the Third World n, the containment of wvements by the two Super Powers, and the grassroots disillusionment with the violence of the nation- yy Third World countries, new forms of lar mobilization began to emerge, based on novel forms of domination and exploitation (such as migrant labor, urban squatters, zations began to transform the political, landscape of many Thitd World countries. Yet, not be analyzed within the Marxist paradigm, which had largely as a response to these new forms of Sought to explicate the exhaustion of lest ideology. ‘This explains 39. See generally FRANTZ FANON, TE WRETCHED OF THE EARTH (1963), FRANK Funny, Covoniat Wats avo Te Pott (ORLD NATIONALISM (199).408 (COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:397 multiple motives to join the movement. ity-based m lead social movements! nor ere questioning from post- ed the discovery that the “move dispersed acro , anthropology, and jovement and what To take one exampl ing general elements in a social movement rks of informal interactions between a plural The second issue ‘movement involves the including organizatic 1 issue of what causes one movement to mobilize ly than another—that is, what kinds of networks of ecessary to convert popular discontent or sporadic disaffection into a viable movement. A general answer is that “social “i. Fora good example ofthis analy, se Jlergen Habermas, New Socal Movements, Promote geo whom the struggle against global ‘number of other hangers-on who may lack an immediate stake but desire to be a part of the activity. Exploring and ding these different motivations is crucial to a proper appreciation of how international legal norms and processes work in practice. important wo recogize that, inthe social socal movements snow sterile and 45, TaRROW, supra note 47. Dian, supra Anipoltes of NGO 48 See, eg. Spiro, supra 49, See, eg, Chamovitz, sypra note 36.410 COLUMBIA JOURNAL OF TRANSNATIONAL LAW = (81:397 A third issue noted by Diani is that different scholars understand the notion of conflict in different ways.” Some view the notion of conflict as primarily interpersonal and cultural," while others view it as one directed toward economic and political change. In the context of the Thitd World, most social movements emerge through conflict with capitalist development. As Barry Adam points out: To ignore the dynamics of capitalist development, the role of the labour markets in reorganizing spatial and familial relations, and the interaction of new and traditional categories of people with dis/employment patterns is to ignore the structural prerequisites which have made the new social movements not only , but predictable.” ‘The literature on social movements also notes that how a conflict plays out (e.g, the strategies used, the means deployed and shunned, and, simply, what gets counted as “political”) will depend contextual understanding of resi of rights, which presumes that secular, rational, and bureaucrat s arise in particular societies. International law and law in general, however, reduce complex conflicts in non-Western societies to the ‘rationalist, universalist and individualist” political culture of the West. The final element of Diani 's definition of a social movement ‘30, ian, supra note 44, at 10, 51. ALBERTO MeWUCcl, NoMADS OF THE PRESENT: SOCIAL MOVEMENTS AND ‘WoibUAL NEEDS CONTEMPORARY SOCIETY (1989). 52. Sidney Tartow theorizes that movements respond to political opportunity and advance ther causes through dict confonation with formal spheres. See TaRvow, sypra note 43, at 18. Post Marxists emphasize how movements emerge tough thei ongoing sugges with te sate and capt, "See Bary Adam, Post-Marsiom and the New Socal Movemenc, 30 CAN, REV. SOC. & ANTHROPOLOGY 316 (1993) 53. Adam, supra note 52, 322 Si. TaRROW, supra note 3, a 18 58. Matis ‘56, CHANTAL MOUFFE, THE RETURN OFTHE POLITICAL 2 (1993), an on-going part of a movement's format others acknowledge that imeconcilable differences lead to a “process of realignment and negotiation between actors. of these processes occur in many soci simultaneously. AS gaps between differ rent ftom the “right to identity” approach 1w, which looks at identity as merely an adopted by individual choice. A. Beyond Liberalism For a number of reasons, the new forms of mobilization in the Third World cannot be analyzed using liberal categories such as rights. First, liberal theory assumes a sharp distinction between ing only that which belongs to the public As the fer logan “personal is or private arenas. The was based on a sharply ,” which feminists, among others, ited arena of the “pol have shown to be inadequate. Second, liberal theory assum united in a *s 7 as legislatures and through institutions such as political parties." Third World mass movements 57. TARROW, upra note 3 58. Dian, supra noe 44, ing DC, Snow etal, Frame Alignment Processes, -Micromobilztion, and Movement Paricipatin. 1 Av, Soc: REV. 464 (1986), ‘After the Collapse of. tion: Svaegcing Women > 'RECONCEIVING REALITY: Wow AND INTERNATIONAL Law 14) (Dorinda ©. Dallmeyer ed, 1993). ‘See J. Oloka-Onyango & Sylvia Tamale, “The Personal is Political” or Why Women's Rights are Indeed. Human Right: An’ African Perspective on International Feminism, 17 How. RIS. Q. 691 (1995); Celia Romany, Women at Aliens: A Feminist 61. Thus, even while describing his “law of people,” John Rawls imposes the ‘requirement of consttutional democratic goverment hough whic liberal people set ashe42 COLUMBIA JOURNAL OF TRANSNATIONAL LAW (41:397 experienced this assumption as too restrictive because other arenas of doing 1d promoted a corrupt statism. European soci particularly Jiergen Habermas, Touraine, Claus Offe, and ‘Alberto Melucci, criticized this ral tendency to unify the al space.* " Habermas, in particular, theorized about new social movements, drawing on the experience of German Green movements, and postulated the idea of a “public sphere” where opinion formation takes place prior to will formation in the sanctioned political arenas. “This “public sphere” has been a useful tool for conceptualizing social movements. theory assumes the unity of the social actor (as a consumer, producer, citizen, etc.) and creates formal arenas where the represented.“ The praxis of shows that the heterogeneity ‘an essential feature of mass |, Which the representational model is unable to date without doing violence to its heterogeneous character.“ Fourth, liberal theory economic growth, as it assumes shoulder the responsi assumption is based on the Weberi contradictions created by the institut society—property,, by the State. imply colonized Latin America and Asi, wt as part of an impy World War I. The , social movements in the Third We ‘4. For a ettique, see Chantol Moule, Democracy, Power and the ACY AND DEFERENCE: CONTESTING THE BOUNDAR analysis sve Ashi Nandy, Sate, Dicronany: A GUIDE 0 KyowLepce as Power (Wolfgang Sachs ed, 2003] INTERNATIONAL LAW AND SOCIAL MOVEMENTS 413 arisen par and partly t0 no longer de B. century. The short answer is that social movements in the World emerged substanti as a discourse of libera it automatically assumes the superiority ity over non-Western tradition. several social movements in the Third World, that organized around a particularly strong ism, Peminim and the Suge for IAL MOVEMENTS IN LATIN AMERICA,4 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:397 cultural identity.” ism shares with liberal theory the understanding of a unified political space and, thus, the State as the main agent of social and economic change.” Consequently, the purpose of mass mobilization, as theorized, is the capture of state power. This understanding was reinforced by the statism of Third World development models in the post-World War II period, such as import- substitution and export-promotion. Social movements, on the other hhand, ‘reject the State as the main agent of soci transformation and do not seek state Instead, they seek to obiain their own political space in which they can set the pace and direction of economic change.” Fourth, with globalization, Marxism began to lose touch with, new forms of economic arrangements and new forms of struggles that accompanied them, not only in advanced industrial societies, b a in the Third World. These new economies, demonstrated most by the emergence of foreign direct invesiment, trade, and. capital markets, began to reveal that the sphere of capital accumulation and its processes were wider than those of commo exchange. It was wider in atleast two ways: (1) capit increasingly took place on a global scale, whereas commodity production had been theorized within the boundaries of the nation- state; and (2) capital accumulation began to include substantial amounts of labor (domestic labor and informal immigrant labor in low-wage apparel industries) and wealth (natural resources) that were not included in commodity production and exchange. In short there was a global economy in the making. Marxism was simply supply the theoretical tools to comprehend and respond t social movements that emerged in the Third World surfaced largely as. 4 response to the new, harsh forms of global economy."* Indigenous peoples” movements, fishworkers’ movements, farmers” movements, and i-globalization” protests are a result of the failure of Marxism 71, See George Yudice, Te Globalization of Culture and the New Chil Society, in (Cutrunes oF PoutticsPoumis OF CULTURES, supra note 43, at 367-68, 72. This was most clealy manifested in the way Marsism differentiated isl from anarchism. See Fieich Engels, Verur the Anarchs, in THE MARX-ENGHLS READER, supra note 68, at 128-29, For a enitique, see PARTHA ClLAFTERIEE, THE NATION AND FS Fracaents (1993), 173, See Gustav Esteve, Regenerating Peoples" Space, 12 ALTERNATIVES 125 (1987) 14. See generally Samir Amin, Social Movements atthe Periphery, in NEW SOCIAL MoveMeNTS In THE SOUTH, supra note 43, at 76-100; David Slate, Rethinking the Spatialtes of Social Movements: Questions of (@Jorders Culture and Politics in Global Times, in CULTURES OF POLTICSPOLITICS OF CULTURES, supra noe 43, at 380-404, 2003] INTERNATIONAL LAW AND SOCIAL MOVEMENTS as as a coherent leftist doctrine, To follow Gail Omvedt,”’ what is needed is a historical materialism of all groups adversely affected by the new global economy. ©. — Toward a “Cultural Poli Social movements arise as a challenge to liberalism, Marxism and, by extension, to extant theories of intemational law. These theories extend from the utopian (liberal/Westerwnaturalist) to the apologist (Marxist/Third World/positivistRealist).” The utopians imultaneously created and constrained by its sovereignty. Social movements differ from both the utopian and apologist approaches of conceptualizing an international order. Social ‘movements seek to preserve the autonomy implied in the positivist vision, but to abandon the nation-state as the col that would guarantee such autonomy. They also share suspicion of the leviathan, but allow a mul including the community (rather than the individual), as poli actors. Instead of accepting the unified political space propounded by these extant theories, social movements seck to redefine the very ‘boundaries of what is properly “ Indeed, most social movements enact a unique form of politics that the author would label “cultural politics.” ‘This lab those movements that are more clear! In the past, this focus on culture involving, eg, human , whereas the latter of a capitalist economy (such as urban squatters’, and fishworkers’ movements). Rather, for all of these movements, identity is strongly associated with survival strategies 75, OMVEDT, supra note $3, atx 176. ‘The spology vers wopia contrast is borowed from Mart Koskennien's path ‘wreaking book, FROM APOLOGY TO UtOFiA: THE STRUCTURE OF INTERNATIONAL LEGAL ‘ARGUMENT (1585),416 (COLUMBIA JOURNAL OF TRANSNATIONAL LAW = (41397 ives rise to a much richer, contextual, and relational form of 3. As the introduction to an important, recent collection of essays noted: ‘We interpret cultural politics as the process enacted 1 actors shaped by, and embodying, ith each other. because meanings are const implicitly or explicitly, seek that, redefine social power. That is, when movements deploy alternative conceptions of women, nature, rac democracy, or citizenship that ‘unset cultural meanings, they enact a cultural politics.”” ‘The above definition of cultural politics is much more than a set of actions arenas (Such as legislatures). Rather, phenomenon that encompasses power stru social, economic, and cultural arenas, in ad economy, conceptions of the To illustrate more clearly what the rich, relational definition of the “political” in cultural politics means for international law, an outline of its elements is as follows Politics goes beyond what we do in formal arenas, and therefore beyond formal voting rights and representation. Human rights law and mainstream Continue to focus on what ‘urgent factor in the consolidation of democra This narrow outlook governs several areas of inter: so0d governance, and humanitarian interventions to save “failed states.” 77, CULTURES OF POLTICSPOLITIS OF CULTURE, supra note 43, a7, 78. See CAMTAUsM, SOCTALISM, AND Dewocnacy REStTED (Lary Diamond & Mare F. Patines eds, 1993). 2003 —_INTERNATIONAL LAW AND SOCIAL MOVEMENTS. 47 ‘over meanings and values in the domain of culture inally political. This reverses a law has historically exhibited. iggles are relational; they are not individual. This ” model of politics that has governed liberal movements en by contrast, focuses on the actual way political choices are shaped in col thereby allowing analyses to either “scale up” from the level of individuals, or to “scale down” from the level of stat Conflict is at the heart of politics. This el from Marxism, reverses the liberal theory's presumption in favor of i These conflicts, which arise at both the levels, are not among nation-states, but among classes. Such a focus on conflict can then aid in infusing a notion of social justice into the analysis of legal rules and institutions in areas such as international ecot foster alternative mod movements focus on the question of how to be both modem and different.” By mobilizing meanings that cannot be defined within standard paradigms of Westem modernity, such movements challenge the authority of international law to speak on what is modern and traditional. Finally, identities do not result merely from individual choice, but from relational activities among a group of people who unite to achieve a common purpose in the form of a movement. In this sense, i identity may be inherently relational." This notion is ign to both the utopian and apologist approaches to 73, Fernando Calderon, quoted in CULTURES OF POLITICSPOLITICS OF CULTURES supra note 4209 80. Recent eights and property scholarship in North Ameria has moved to article a ‘Reconceiving Right as Relationship, | soph Singer, The Reliance Inerest in Property, 40 STAN Singer de Jack Beerman, The Social Origin of Property, 6 CAN, BL. Seesupra note 76 and accompanying tex.418 COLUMBIA JOURNAL OF TRANSNATIONAL LAW (41:397 may appear then that the praxes of social movements centrally challenge the very foundations of intemnatior provide a more id promising means of imaginis Westphalian order, as Richard Falk has labeled it! movements offer doing so, they reveal the li order, based primarily on individual autonomy and rights, and also a realist world order based primarily on State sovereignty. IV. _ RESISTANCE AS AN ANALYTICAL CATEGORY IN INTERNATIONAL LAW Traditional intemational law is unconcemed with mass action unless it is directed at the creation of states in the form of movements that assert the right to self-determination. Even in such cases, Icome the victor as a legitimate representative of This doctrinal position enabled European and empires to defeat the legal claims of Third World, mnalist movements for independence under international law. Regardless of how much “resistance” such groups posed—for example, during the Mau Mau rebellion in British Kenya—traditional intemational law has no vocabulary for This ugh law enforcement measures, especic emergency. Indeed, traditional inte notorious for the ease with which it has sanctioned ional Law is ce against ‘non-Western peoples. As Professor Anthony Anghie has emphasized so eloquently about nineteenth-century positivism: The violence of positivist language European peoples is hard to overlook. —Positivists 2, RICHARD AUK, LAW BY AN EMERGING GLOBAL VILLAGE: A POST-WesTPHALIAN Peasrecrive (1998), 33. See Leaave oF NATIONS OL. Spec. Supp. 3, at 6 (1920) undergoes 4 ansformation of dssoitio, it Tegal stats is une ctique ofthis ease and the sel deter N rmination and Inerational Law. Wis. IT'LL. 51 (1988), See ‘& B. Rajagopal, The Case for the Indapendent Statehood of Somaliland, 8AM U.J.INPLL. POLY 653, 666-14 (1992), when a sate 2003] ‘INTERNATIONAL LAW AND SOCIAL MOVEMENTS 419 developed an elaborate vocabulary for denigrating these peoples, presenting them as suitable objects for and I mission—the discharge of the white man’s burden. The hope that fa couple of decades, it has become increasingly hhope in the capacity of Third World states to guarantors of the democratic aspirations of the masses in the Third ignty has been parceled both upwards (to hat control the world economy. The democratic deficit experienced by global governance processes has been exacerbated due to the democ that act as the agents of the “glo sensibility in international law di which revolved around a commitment to individual human rights and an expanded concept of international development including the law of “welfare,” also failed to reverse the rot in the system, Though the 4. Antony Anghie, Finding the Peripheies. So ‘Nineteenth Century International Lave, 40 HAR INTC L. ins, 98 ASL. PROC. 16 37. See georally DavID HELD, DEMOCRACY AND THE GLOBAL ORDER: FROM THE Moen Stat TO COSMOPOLITAN GOVERNANCE (1995).420 COLUMBIA JOURNAL OF TRANSNATIONAL LAW {41397 causes of this are too complex to examine here, it may be noted that ¢ associated with the containment of mass resistance anticommunist peasant) and a destructive modemity as in having a devastating impact on natural resources lihoods). The post-World War If “settlement” of the colonial question through the grant of political sovereignty did not end mass ‘movements in the Third derstood by international lawyers, partly due to the tations discussed above. It is aow becoming obvious jovements represent the cutting edge of developments. It is important for international lawyers to seek to a theory of resi ‘would enable them to, at least , respond to the political challenge to assure a just and stable world order. In what ways may a theory of resistance be articulated in arenas and encompa Struggles over syinbolic values and meanings matter as over resources, if political struggles and identities are inherently if conflict is central to pol may be fostered by political, then a theory of resistance must begin by ques! clements of the existing theories of international law and re ‘must cease treating the state and the ideology of development with irrational reverence. It must develop a more flexible and dynamic conception of the dialectic between institutions and extra-institutional mass action. It must pay diligent and honest attention to the social It must rethink the origin of the rules of inte lows new and 18, For 4 dead exaninaion of he essa terre ox World War It international lawyers" new senabliy to reconstruct interational aw andthe exer new discourse of development to foster growh and reduce poverty in he Third We Rajagopal supra note 86 2003] ‘INTERNATIONAL LAW AND SOCIAL MOVEMENTS at example on issues such as agricultural subsidies or health and trade issues. A. Inspirations for Formulating a Theory of Resistance A theory of resistance in international law must pay particular attention to the reartculation of four issues: (1) against what? (the nature of the exercise of power in current international society, including the exercise of power by the modem state); (2) toward what ‘end? (the nature of human liberation that is sought, including the relationship between resistance and the psychology of deprivation); @) using what strategi , fragmented, and contested ‘emi While this project has not yet truly begun, the writings of some prominent theorists such as Michel Foucault, Frantz Fanon, Antonio Gramsci, and Partha Chatterjee may offer some potential inspirations for building such a theory of resistance and addressing each of the above four issues. 1. Michel Foucault The first such source of jon is the notion of govemmentality or governmental rationality, expounded by Michel Foucault in a series of lectures in the This notion aids in a better understanding of the nature of particular exercises of power upon which a theory of resistance must focus. As defined by Foucault, governmentality means: The ensemble formed by the institutions, procedures, analyses and reflections, the calculations and tactics that allow the exercise’ of this very specific all complex form of power, which has as its population, as its principal form of knowledge politica! economy, and as its essential technical means apparatuses of security. The tendency which, over a long period and throughout the West, has steadily led toward eminence over all other forms (sovereignty, di 19, See TWe FOUCAULT EFFECT: STUDIES m GOVERNMENTALITY (Griham Burchell ea. eds, 191)an (COLUMBIA JOURNAL OF TRANSNATIONAL LAW (41397 etc.) of this type of power which may be termed ent, resulting, on the one hand, in the of a whole series of specific govemmental apparatuses, and on the other, in the development of a whole complex of savoirs. The process, or rather the result ofthe process, through which the 'state of justice of the Middle Ages, transformed into the administrative state during the fifteenth and sixteenth centuries, gradually becomes “governmentalized."* ‘The nature of the exercise of power in the Third World makes it clear that mistake to regard the power emerging from the State as the principal power. Rather, most effective power has shifted {o apparatuses of government that are both above and below the state, as well as to both domestic and transnational private actors. As such, there needs to be a theory of power in the Third World that is broader than that which emerges from state insti Also, the form of the Power in the Third World has a particularly bureau it, consisting of techniques designed to observe, monitor, ‘control the behavi primary object of the exercise of governmental rationality. This is not new, of course. As a mid hineteenth-century French author wrote, “assisting the poor is a means of governm« roubling ns regarding the ideological nature of international law and Foucault's definition is useful for developing a theory of resistance that departs from the treatment ofthe state as an obsession. 90, Id a 102-03 91, Md. a 151 (quoting Firmin Marbeau, Du paupériome en France et des moyens dy ‘rier au principles deonomie charitable, Pats, I847), 2003] INTERNATIONAL LAW AND SOCIAL MOVEMENTS 423 Traditional state theory in the Third World, influenced by Marxism, holds that the modem activities of government must be deduced from the properties and propensities of the state.”” Fo presumption and suggests that the nature of state i function of changes in the the salutary effect of movi definition allows for a focus on both the micropolitics of power relations and their strategic reversibility. ‘The former permits a theory of resistance to take into account how id groups experience power relations, thereby enabling iodate the fe ms, essentially shows the contestability of entrenched power structures by demonstrating how governmental practices themselves can be turned into a focus of resistance in what Foucault calls the “history of dissenting ‘counter- conducts." This focus on micropolitics and strategic reversibility offers a richer basis for articulating a theory of resistance that focuses on social movements. 2. Frantz Fanon A second issue toward what end the re essays, Concerning Consciousness,” Fanon lays ‘out the psychological aspe: colonialism as well as those of anti-colonial resistance. Three themes, discussed below, arising from his work are relevant to the articulation of a theory of resistance that engages Third World social movement action. The first theme is that a complete view of human liberation cannot be confined to the nationalist paradigm. As Amilcar Cabral 93. See THE FOUCAULT EFFECT: STUDIESIN GOVERNENTALIY, supra ate BY, at a 95, See Femando Teson, Feminism and Inerational Law: A Reply, 33 Va J. L 647 (1993 (discussing an example of iscomor ih feminist appreahes to tneratonal ta), 96, THE FOUCALT ErFecr: STUDIES IN GovERENTALIT,sypra note 9,25, 97. Frantz FANON, Tue WRETCHED OF THE EaRTt 35-106, 148-205 (Constance Farington tans, 1963).a4 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41397 ion is an act of culture.” This basic lesson is y the emergence of thousands of social movernents , peasants, urban poor, indigenous peoples, women, and ‘workers, who have felt excluded by the nation-building project during the postcolonial period. The idea that nationalism is a sufficient response to colonialism has proven to be inadequate. As Fanon says, “history teaches us that the battle against colonialism does not run straight away along the lines of nationalism.” Instead, he advocates a range of measures that can be adopted to avoid the dangers of national including the danger of that singular os i the political party, the ideological underpinnings of which’ rest on the Western assumption that the masses are incapable of governing themselves." These views have profound importance for articulating the ends of mass resistance in nation states as they move away from the ends, 1 that are traditionally postulated for mass intemational law. Indeed, the practice of several social is in Mexico and the National TSR") in India, has moved away from nationalist framings of their demands."" Nevertheless, these movements often see their strategies as contributing to a vision of human liberation that is as profound as anti-colonial nationalism. As Pradip Prabhu, one of the conveners of the NATSR, remark: the passage of a law in India in 1996 that extended village tribal areas, “tis the first serious nail in the coffin of colonialism.’ ‘The second theme that emerges from the work of Fanon relates to resistance and economic power. A traditional understanding of mass action holds that, to be viable, mass action must rest on economic strength. This economic theory of violence is derived from Marxist theory, which holds that economic substructure determines all social outcomes. As Engels states: To put it briefly, the triumph of violence depends upon the production ‘of armaments, and this in its tum depends on production in general, and thus... on ‘98, Amilear Cabral, National Liberation and Culture, in RETURN TO THE SOURCE: 974, 99. FaNon, supra note 97 18, 10, 14 at 187-88 in of Culture and the New Chil Sacer, ix pre note 43, at 353-79 (analyzing Zapatista 102, Personal communication, Fl! 1997 2003] ‘INTERNATIONAL LAW AND SOCIAL MOVEMENTS 425 ‘economic strength, on the economy of the State and in the last resort on the material means which that violence commands. '® ic often drives the accumulation of economic power ‘and forms the core of the catching-up rationale in the development paradigm. It also underlies the traditional Third World lawyer's response to colonialism as a peculiar economic exploitation (as opposed to racial or religious domination) that could, they believed, be reversed through doctrines such as Permanent Sovereignty Over Natural Resources." As suggested above, however, mass action in the Third World is often a combination of struggles over material resources and symbolic meanings. It is simultaneously cultural and economic. Fanon recognizes the importance of this aspect. On the one hand, he bluntly states that, “fin the colonies, the economic substructure is also. the superstructure. The cause is the consequence; you ite, you are white because you are ric ries over the colonized pe such as guerilla warfare. Fanon’s theory avoids ‘of mass resistance in a non-hegemonic context, a ‘hich most social movements operate, ly, the third theme that is relevant to a theory of resistance is Fanon’s understanding that the new f governance and resistance, Although he was writ advent of the new global economy, Fanon notes that, transformed from a sphere of exploitation to a market for goo. cl imate interests,” of the colonial In his view, this transformation creates a “detached 103. Cited in Fanon, supra note 97, a 68 GA. Res 1803, UN. GAOR, 17th Sess, Supp. No. 17 st ). See also Penne SOVEREIGNTY OVER NATURAL RESOURCES IV INTERNATIONAL (Kamal Hossin & Subeata Roy Chowdhury ed, 1988). 105. Fanon, supra note 97, a 40 106, 1, 64-48, 07, 1a. 3065,426 (COLUMBIA JOURNAL OF TRANSNATIONALLAW (41397 complicity” between capitalism and anti-colonial resistance. In addition, the creation of a work force in the colony leads to a polities of reformism wherein strikes and boycotts take the place of anti- colonial rebellion.” This analysis contributes significantly to an understanding of how global capitalism works and how resistance to itis sm works to create and protect markets f the consumers. Its presence in Third rkers and others who directly benefit from it and whose politics are aimed at reformism. This analysis reveals how the spread of free markets is so often equated with the spread of freedom in general. For articulating a theory of resistance under conditions of globalization, there must be an acute vwoderstanding of how globalization structures opportunities for resistance. Fanon’s work offers some clues with regard to how to proceed. 3. Antonio Gramsci AA third inspiration for a theory of resistance in intemational law is the well-known work of Antonio Gramsci in The Prison Notebooks." Though Eurocentric!" like his contemporaries, Gramsci postulates three ideas that are of enormous value for articulating a theory of resistance that focuses on the practice of social movements, The first is his notion of “hegemony,” which, as defined by Gramsci, means: 7 ‘The spontaneous consent given by the great masses of the population to the general direction imposed on social life by the dominant fundamental group; this ‘consent is “historically” caused by the prestige (and consequent confidence) which tke dovninant group enjoys because of its position and function in the world of production; [tHhe apparatus of state coercive power which “legally” a 1.066, oetowts, GRAMS, SELECTIONS FROM THE Prisow (Quintin Hoare de Geoffey Nowel Sith Ws. and wars, 1d a 416 (ooting the “Tolegemony of Wester Culture over the whole Wor cating that European cutie is the only “historically and concretely ie) 2003) INTERNATIONAL LAW AND SOCIAL MOVEMENTS aut those groups who do not ly or passively. This apparatus ed for the whole of society in ipation of moments of crisis of command and direction when spontaneous consent has failed." Hegemony to Gramsci, then, is an active process involving the i tion of popular consent, which ‘group” that takes hold of and This meaning is different from the more common understanding of “hegemony” as domination through force, and corresponds realistically to the global process of governance that rests, not oly on brute military force, but also on the confluence between force and moral ideas. “Thus, itis the case that the interests of great powers are so1 by the language of that containment of mass resistance ny society of states to the geners ion imposed on world affairs is a function of the domination of the force and ideas of the West. For several centuries, the West's hegemony was unshakeable. After decolonization and the rise in the economic power of Asia, as well as the emergence of mul from within Western soci s have existed for some decades for creative tegies for the Third World. Social movements, both those directed at corpor: accountability for environmental and human rights abuses and si issue movements, such as those for banning anti-personnel landmines, have attempted to manufacture the consent of the population for altemative paths of sustainable development, peace, or democracy. le these movements continue to lack the state's coercive apparatus for enforcing di arguable that this part tional law and relations, the conditions under which “spontaneous consent” may be manufactured are as, if not more, important than the existence of force One can understand this idea in the di obey most rules of intemational law most of the time, even in the absence of enforcement'” or in the recognition of the increasingly icles 13. See Lous Heskny, How Nevins Besave (1979). Aézinely, he reason given428 COLUMBIA JOURNAL OF TRANSNATIONAL LAW = (41:397 important rol international ‘The second idea articulated by Gramsci relates to the of “passive revolution” listinction between “war of This theme is critical derstanding the relationship between civil society and the state broaily, and for theorizing about the ical efforts of social bal law transnational advocacy networks play in revolut and (2) as ulat” social transformation that oceurs beneath the surface of society where the progressive class cannot advance The latter definition, for which he cites Gandhi's non- revolution may occur despite the surface stability of particular regimes or even the global order. Class and other forms of struggle ie, even if only at an interpersonal level.” This important for expanding the analysis of international ude extensive descriptions of the micro-\ of change. Without engaging social movement literature and the tools of anthropological analysis that it provides, international law and relations cannot hope to accomplish this type of analysis. important to note the distinction between “war of and “war of movement/ "in Gramscian thought to mean a muted form of during periods of relatively classes.'"" In particular, he that this struggle takes the form of triumph over civil at 46, (Nowe that Gasset is critical of passive ee boUrgE way. Soe CHATTERIE, pra note 72,2212 U8, CHATTERIE, supra note 72, 206, 2003} ‘INTERNATIONAL LAW AND SOCIAL MOVEMENTS. 29 society before engaging the state. As he puts it, “a social group can, and indeed must, already exercise ‘leadership’ before winni governmental power (this indeed is one of the principal conditions for winning of such power).""” A “war of movement/maneuve other hand, is a frontal attack that aims to seize the in: hegemony.’ Boycotts area form of a war of position, a war of movement. The same struggle may cot of position and war of movemé passive resistance is a war ofp jovements press demands for boycotts of brands or insist on eco-labeling) or a war of movement (as when ethical investors divest stocks of companies that are deemed by social movement actors to be environmental or human rights concerns). A Taw that ignores the role of passive revol isin danger of becoming irrelevant or, worse, being blind to f non-state groups that do ify as NGOs The third and final idea that is important to a theory of resistance is that of the relationship between the masses and intellectuals. Several social movements that arose during the 1990s have revealed the existence of a symbiotic relationship between mass action, on the one hand, and movement intellectuals, on the other, who act as mediators “between the movements and the global Zapatistas), Pradip Prabhu (NATSR), Vandana Shiva (ecological feminism) and Arundhati Roy (Narmada Bachao Andolan in India). However, there are few, if any, international lawyers who are associated with social movements. This regrettable international lawyers to seem rather important mass time, This is especial ‘where intemational lawyers have ar masses, but remain committed to analyses of the intemational order. This leads them to take po ‘on international legal issues that reflect state positions and ignore social reality. An example is the ready acceptance by Third World 19. 14357, 120, 14. 29, an420 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [41:397 international lawyers in the 1970s of the developing countries’ position that environmental concems were those of the rich and that poverty was the greatest polluter. This position entirely overlo the existence of environmental movements in their own It also overlooked the exclusi i ing a theory about the proper relationship between intemational lawyers (as intellectuals) and social movements. He explains that the suprei attention to these aspects of to remain effective and credible. 4. Partha Chatterjee Of primary importance to the articulation of a theory of resistance in international law is the role of the state. The sanctioned language of resistance in inte ie., human rights generally thought to be an anti-state discourse, though this increasingly recognized as an inaccurate description.” Given that 2003] INTERNATIONAL LAW AND SOCIAL MOVEMENTS a1 many social movements arose as a result of the patholo; developmental state, as suggested above," what is and wi be the re the pa and social movements on partic fevertheless, Partha Chatterjee’s work"® on the nature of the postcolonial state provides ‘some clues on how social movements relate to Third World states. The first theme that Partha Chatterjee develops is the centrality of the ideology of development for the very self-det is resulted directly from an econ rule that attacked the legitimacy of such rule because it resulted in the exploitation of the colonized nation.” As Chatterjee discusses this critique, the state represents the only legitimate form of the exercise of power becau: for the development en, does not come merely from elections; rather it derives its rational character to direct a program of economic development for the nation." As a result, the challenge posed by ‘Movements to the developmental ideology of the state, whether it be through environmental or human rights developmental activities, is seen as anti-national.!” is instead required is a theory of resistance that questions the developmental logy of the state and secks to build altemative sources of legitimacy forthe state. A second theme relates to the assumed neutrality of the state in the development process. The postcolonial goal was to establish a Hegelian rational state that would engage in the planning for and plementation of development. This soon proved ta be difficult as tate itself proved to be a contested terrain where the power t sought to reorder through development planning were ‘Anan Dcopmnt ad Evonman Te Cae of te Deo Corin 34 Wan: NPC | (1900) Seca enone mincwes hope ‘daly ten kin ple lane he ery 197s. Se Gop ae See eg. Chamovia, pa nt03. Guan ipa nt 1 57 Ma Second, see Gregory Fox, Srengthening the Sia, 7 Wo. J. GLB. LeaaL StuD. 35-77 (1399) 2K See the intial discussion supra ar I ‘See CuATTERIE, supra note 72. 1d, 31202-05, in. The Supreme 0 pe hind om432 (COLUMBIA JOURNAL OF TRANSNATIONAL LAW (41397 already shaping the very identity of the sate™ and that of society. This means tha into each other and that poli the state in the developme penetrates the state even as agent of developme theory of interpenetration of state and society, of domestic and intemational, tics. In fact, social movement practice is has already been happening. For example, the rents and the state agencies in Latin America and of law anc demonstrates de la Mujer (SERNAM) in Chile,” which is the National Women’s Bureau (a government agency the Venezuelan ecology movement 1w on the Environment in 1976. law must treat the state as a plural and fragmented terrain of ‘contestation rather than as a monolith, V.— Conctuston ets, engaging social movement the sensibility of concemed activists, who in CULTURES OF POUITICS/POLITICS 2003] INTERNATIONAL LAW AND SOCIAL MOVEMENTS: 433 are motivated by the best cosmopolitan ideals of the disilin, awaits. Mass action is a social re iatemational lawyers cannot remain World approach to international law ‘movements to transcend the impasse in wl international law has the potential to understanding of not only the doctrines and ide: ‘but also the very ethical purpose of the discipline centered, and imperil, and an encounter with social movemen's offers an opportunity for it to fundamentally transform.