Public international law (PIL) is neocolonial in function. By this I mean that it continues to materialize the colonial functions of disciplining and plundering the under-developed world. Yet PIL is anti-colonial in form, officially committed to global inclusion and equality. This awkward dichotomy can be analysed using Susan Marks concept of “false contingency”.
False contingency and planned misery
A contingency is a possibility, something that may or may not happen. It remains contingent until it is either realised or precluded. A false contingency is an apparent possibility that is already precluded by systemic factors. Most claims made in the name of ethical PIL are false contingencies. They demand progressive changes that are, in a sense, possibilities – people could for example have access to food, water, shelter, and healthcare – but they cannot currently be realised. Presenting them as fundamental rights does not alter the fact that they are denied to many. It also evades the question of why people are denied access to food and water, shelter and healthcare.
There are two problems intertwined here. First, public international law (PIL), including international human rights law (IHRL), is radically indeterminate; basic welfare rights exist in some versions and not in others. Second PIL and IHRL are not enforced, or so we are told. When our preferred normative claims are not realised, we frame this as a problem of non-compliance, and lack of enforcement, rather than as a matter of delimited contingency. These claims were never going to be realised, they are simply our subjective desires being presented as legal imperatives. They are false contingencies, our claims were never adjudicated, there was no judgment, they have no authority.
False contingency brings to light the distinction between laws which impact the material world (actualized laws) and those which do not. It allows us to perceive, and clarify, the fate of most ethical claims expressed through PIL: they are not realised. At a deeper level, it also offers an explanation of why certain laws are actualised and others are not. PIL takes place in a context, it is part of a larger system, and that larger system dictates which visions of PIL will be realised, and which will not. This depends on certain “background conditions” which currently (and contingently) form a system Susan Marks calls “planned misery”: the “misery that belongs with the logic of particular socio-economic arrangements.” This logic embodies the neocolonial aspect of PIL.
Colonialism, neocolonialism, and PIL
Yes, I used the c-word, but PIL is a colonial project. It always has been. As Ntina Tzouvala has demonstrated, PIL is a system of global plunder legitimated by the contradictory argumentative pattern of “civilisation”. PIL was born in the colonial encounter between the Spaniards and the indigenous peoples of the Americas. It was created to regulate the disciplining of the natives and the expropriation of their resources. This was justified in the names of God and law. For the first 400 years of its existence PIL regulated and legitimated the era of formal colonialism. PIL enabled the plunder of the world by the Empires of Western Europe. It oversaw the deaths of millions and the immiseration of entire nations; it oversaw Europe’s rise to global prominence and the concentration of its plundered wealth. This much can be taken as given.
However, PIL also presided over the process of decolonisation, thus, it is assumed, shedding its past, and assuaging its colonial guilt. In this (hi)story we live in a post-colonial world, where states are equal and sovereign, bound only by their own voluntarily undertaken commitments (and customary international law, and ius cogens, and general principles of law [curiously no longer ascribed to civilized states]). A world freed from the horrors of colonialism. Much recent scholarship suggests that this is not the case; that PIL continues to enable colonial functions.
It is certainly true that the era of formal colonialism is basically at an end – states no longer make territorial claims abroad. But colonialism was not exclusively about land, it was a quest for resources and labour. An exercise in political control realised through violence, subjugation, and law. Neocolonialism is the same exercise in political control, but exercised remotely and discretely. Few of the former colonies ever received substantial independence, but the transition to neocolonial governance was consummated in the 1980’s debt crisis.
A tale of two normative orders
I want to suggest that both (hi)stories are, in their own ways, “true”. PIL is both neocolonial and post-colonial. There are in fact two separate systems of PIL: the actualized and the performed. Both are all around us. The discourse of PIL is vast, and often “post-colonial” in the sense that it assumes colonialism to have ended, and the world to be composed of independent states with sovereign decision-making powers. As a result, it is generally performative, detached from reality and focused on the “refinement” of “Global Constitutionalism” or “Humanity’s Law”. It is a fragmented discourse of legal texts, decisions, and arguments, sketching ideal worlds while ignoring the constraints of reality.
The prosaic reality of actualized PIL regulates our travels, communications, and entertainment; the clothes we wear, the food we consume, and the technologies we use. This is the PIL of diplomatic recognition, of passports and visa controls, international postal services and the internet, satellite communications, shipping and maritime lanes. It is also the PIL of trade liberalisation, regulating the ways in which resources are moved around the world: concentrated in some places while desperately lacking in others. It ensures the restricted movement of peoples, and the unrestricted movement of capital. This PIL of poverty, debt peonage, and enforced under-development, maintains and directs the flows of wealth and poverty in our radically unjust world; it is “planned misery”.
This substratum operates quietly behind the spectacular “failures” of ethical PIL. It directly affects material reality, actualising PIL in all of those instances where the ethical lawyers excoriate it for failing. It is a layer which exposes PIL as not only the advocate of solutions, but also as the cause of the problems to be solved. It is rendered visible through the lens of “false contingency”.
False contingency allows us to perceive the bifurcated normative orders of PIL. One actualised, the other performed. International economic law (IEL) straddles this divide. IEL as a discourse is indeterminate, IEL as a practice is not. As a discourse it remains part of performed PIL; a discursive battlefield for neoliberal zealots and social justice warriors to fight over. A site of “vicarious litigation,” where everything is simultaneously legal and illegal.
However, as a practice IEL is an institutionalised legal system. This is comprised of the IMF and World Bank (IFIs); the World Trade Organisation (WTO) and the system of International Investment Arbitration (IIA). These four institutions possess coercive authority; they can enforce their decisions. They make laws with real, identifiable, effects in the world. All four have authoritative system officials who can enact and enforce those laws. And all four institutions remain enthralled to that version of neoliberalism formerly known as the Washington Consensus. With this coercive power, ideological homogeneity, and their “legal-rational” operations, they combine to form an archetypal Hartian legal system. The kind of legal system I’d always hoped to find in PIL, and yet very much not the one I wanted to find. I call it the Global Legal Order (GLO).
The GLO is the latest incarnation of the colonial function of PIL, it began evolving toward its current form during the 1980’s debt crisis. To avoid default and bankruptcy, then developing states were forced to refinance their debts through the IMF and World Bank. The new loans came with obligations beyond repayment, so-called conditionalities; the developing states had no option but to accept these. They were commands, backed by the sanction of refusing the loan – bankrupting the state.
These commands, which would come to be known as Structural Adjustment Policies (SAPs) dictated macro-economic policy along neoliberal lines. The developing states were forced to cede control over their own economic policy; in doing so they also reduced their political policy space. The economic policy was geared toward attracting foreign investment, exporting raw commodities, and reducing debt. This meant cutting subsidies, reducing minimum wages and working conditions, budgetary austerity causing cuts to social welfare provisions. These changes were not popular, but were embedded by training local officials with implementation advice.
These new economic policies did not bring development, in fact they further impoverished and indebted the states, creating perpetual debt peonage. This facilitated the “agreement” of further loans, and the imposition of further conditionalities. SAPped as they were, the formerly developing countries were increasingly desperate for foreign investment and inclusion in the global economy. They had no option but to join the WTO, which would deepen their exposure to neoliberal economic policy.
The WTO’s charter commits it, and hence its members, to co-operation with the IFIs, “with a view to achieving greater coherence in global economic policy-making”. Its “Secretariat … communicates a powerful discourse … which almost always involves seeking liberalization in the broadest possible terms.” The WTO also has a dispute settlement process, which allows for the imposition of sanctions and keeps under-developed countries in line – to their own economic, social, and political detriment.
The institutions of IIA complete the triad of contemporary global governance. Here, “a powerful group of multinational corporations, large law firms, and a select group of arbitrators” have implemented “rules developed in arbitral awards to create an inflexible system of investment protection to the detriment of developing states.” These techniques have also been deployed to give foreign investors the right to unilaterally invoke arbitration against states, even in treaties which contain no such clause. This vitiation of under-developed states’ “consent” has been achieved by transposing the WTO concept of “most favored nation” status into individual bilateral investment treaties (BITs). It creates “an effective compliance mechanism … for foreign investors and multinational corporations, who can enforce arbitral awards through the New York Convention.”
These institutions act in concert, forming the GLO. All are capable of enforcing their commands with meaningful (devastating) economic sanctions. They deploy a coherent and homogenous ideology in a consistent manner. They command obedience. The GLO is a legal system which governs the under-developed world, dictating economic and social policy, and implicitly determining political policy.
This liberalization does not bring development. It governs the so-called developing world in a manner which structurally precludes development; it produces the oppressive governance of “planned misery”. The imposed social and economic policies are often deeply unpopular and provoke dissent and protest. However, the government cannot reverse them – they will be harshly sanctioned if they do – and so must suppress the protests instead. Repressive governance is a feature of neoliberal transformation, it is a system “best promoted in … dictatorships.”
The GLO presides over a global infrastructure of exploitation and immiseration, regulating “the distribution of advantages through a coercively structured legal order.” Under-developed states are deprived of economic sovereignty, their debt is used to proscribe their policy space. The net effect of this governance is an annualtransfer of approximately $3 trillion from the under-developed states to the over developed states. This is compounded by another $2.66 trillion lost in “unequal exchange”. The GLO extracts an annual tribute of $5.66 trillion (in cash, resources, and labour) from the under-developed world. This is neocolonialism in action. It is also PIL in action, mandating oppression.
In IHRL discourse this pathology is generally localised and presented a-structurally – as if dictatorships just happen, and simply choose to govern oppressively. As our performances of legality are constructed and delivered, the state is named and shamed, but the operative global system is discretely left out of the picture. Human rights abuses are assumed simply to happen, and they are reported and castigated in ways which render their structural reproduction invisible.
 Marks S. “False Contingency” 62 Current Legal Problems (2009) 11; “Human Rights and Root Causes” 74 The Modern Law Review(2011) 57.
 Tzouvala N Capitalism as Civilisation
 See HRC General Comment 36 (2018) for an almost caricatural example of this genre.
 Linarelli J. Salomon M. Sornarajah M. The Misery of International Law (Hereafter Misery)
 Art 3(5) WTO CHARTER
 Toohey L., “Accession as Dialogue: Epistemic Communities and the World Trade Organization” 27 Leiden Journal of International Law (2014) 415
 Misery 148
 Misery 160-1
 Misery 173
 Misery 32
 Hickel J. The Divide 25-6
 Ibid 28