Governmental Illegitmacy in International Law.

• Author: Gathii, James Thuo
• Position: Review

GOVERNMENTAL ILLEGITIMACY IN INTERNATIONAL LAW. By Brad R. Roth. New York: Oxford University Press. 1999. Pp. xxx, 439. $95.

[In the last few years, a new politics of difference is emerging whose distinctive features are] to trash the monolithic and homogeneous in the name of diversity, multiplicity and heterogeneity; to reject the abstract, general and universal in light of the concrete, specific and particular; and to historicize, contextualize and pluralize by highlighting the contingent, provisional, variable, tentative, shifting and changing.(1) Today, the struggle between competing universalisms (liberal democracy v. revolutionary-democratic dictatorship) -- more or less resolved, at least for the present -- seems set to be succeeded by struggle between universalism and various particularisms (liberal democracy v. assertions of cultural self-determination, ethnic grievance, and exceptional circumstances). [p. 365] INTRODUCTION

Brad R. Roth's Governmental Illegitimacy in International Law(2) is a neoconservative realist response to liberal internationalists (or universalists). As a critique, the book unsurprisingly legitimizes the subject of its attack: liberal internationalism. That is so since in their opposition to each other, liberal internationalists and neoconservative realists fall within the same discursive formation -- a Euro-American hegemony of thinking, writing, critiquing, engaging, producing, and practicing international law.

This Review is an antihegemonic critique. It seeks to decenter this Euro-American opposition between liberal internationalism and neoconservative realism that has characterized the study of international law, especially in the post-Cold War period. This Review aims to demonstrate the limitations of the commitments of liberal internationalism (to a universal culture of liberal democracy and free markets), on the one hand, and of neoconservatism (to maintain the integrity of sovereign states that have effective control of their populations by restricting intervention in their internal affairs), on the other hand, as the only alternatives to understanding and producing knowledge about legitimacy in international law.

My antihegemonic critique could very well be referred to as constituting a third-world approach Third-world because it is neither American nor European, and because it is intended as a counterweight to the overwhelming dominance of American and European academia in the production of knowledge about international law. This third-world approach thus not only disrupts the hegemonic approaches to the study of international law, but also partly embodies the political goals of the third world, as I see them. It is thus as legal as it is political.(3)

This Review is inspired by scholars engaged in Third World Approaches to International Law (TWAIL) who, in the last fifty or so years, have represented a variety of shifting positions within the antihegemonic critique of Euro-American approaches.(4) In reclaiming the discursive energy of these engagements with international law, third-world scholarship has harnessed the critical insights from a variety of disciplines, including postcolonialism, cultural studies, Marxism, critical race theory, feminist analysis, new approaches to international law, and critical legal theory, among others.

Elements of my antihegemonic critique of the liberal/conservative dichotomy are linked together by two central analyses: an economic critique and a cultural, nonmaterial critique. I do not subscribe to the idea that cultural and nonmaterial forms of oppression underplay the real dynamics of oppression in economic structures and relations. I do acknowledge, however, the potential for decentering, unpacking, or deconstructing homogeneous or universal categories of representation.(5) For example, legitimacy, as embodied in Governmental Illegitimacy, occupies a Euro-American discursive framework and excludes non-Euro-American notions of legitimacy. By unpacking this Euro-American mode of representing legitimacy, I hope to proliferate the meaning of legitimacy to go beyond examining state legitimacy into examining legitimacy in a wider context including race, culture, class, and sex.(6) My project, however, is not simply to provide a countervailing or an authentic notion of legitimacy, but rather to overcome the "given grounds of opposition" between liberal internationalism and neoconservative realism by opening up a space to make possible "the construction of a political project that is new, neither one nor the other [and] ... that can accept the differential structure of the moment of intervention without rushing to produce a unity of the social antagonism or contradiction."(7)

In proliferating the meaning of legitimacy and the variety of categories whose legitimacy needs interrogation, I hope to mobilize the conceptual potential of critical analysis and theory for "change and innovation."(8) I hope to open new arenas of inquiry that are foreclosed within the discursive terrain of Euro-American international legal scholarship/production. Yet, I am aware that, in seeking to transcend the paralyzing antithesis of Euro-American international legal production, it is far too easy to foreclose systemic analysis of the foundational themes raised by my materialist and structuralist critique of neoliberal economics.(9) I argue that the two critiques could be deployed simultaneously. For example, neoliberal economic restructuring (or freemarket reform under the aegis of the Bretton Woods institutions(10)) relies on racial and cultural stereotyping as a central, unstated, but apparent, element of the otherwise neutral-sounding economic justifications in favor of free markets.(11) Since deconstructive critiques of universal categories of representation potentially foreclose critiques of economic relations and relations of production, the deconstructive critique and the foundational critique invariably contradict each other but also operate ambivalently throughout this Review.(12)

Each section of this Review focuses on a major theme(s) in Governmental Illegitimacy. In Part I, I explain how Roth's critique of liberal internationalism is a form of neoconservative realism, and I outline the main themes and arguments Roth makes. Further, I argue that Roth's neoconservative take on legitimacy as a response to liberal internationalists reflects the extent to which debates on governmental legitimacy in the Euro-American academia are trapped within a Eurocentric either/or framework.

Part II argues that, notwithstanding Roth's proposal that neoconservative realism ought to prevail over liberal internationalism in debates on legitimacy, there is a lot of common ground shared by these liberal and conservative proposals, in terms of their implicit or explicit endorsement of American economic hegemony internationally, and in terms of their pretensions of universality and their commitment to a common set of abstract legal principles.

Part III argues that Roth's analysis, in general, diminishes colonialism as ephemeral or exceptional, rather than as integral, continuing, and present. In essence, the continuities and discontinuities among colonialism, the mandate system, and the trusteeship system, as well as the era of self-determination, are left unexamined. In Part IV, I explore the consequences of Roth's maintenance of a public/private distinction: that politics resides in the public arena of intervention in civil society overseas, rather than in the private order.

Part V challenges Roth's allegiance to Euro-American conceptions of the nonintervention norm, a norm which excludes interventions in the economic affairs of sovereign states as a possible international legal violation. I also demonstrate the consequences of the Euro-American hostility to accommodating a countervailing optic that would examine the distributional costs of the market's inability to spread its goodies around the world efficiently, optimally, or even equitably.

In Part VI, I commend how Roth transcends the Liberal, linear story that sovereignty -- classically understood as a consolidated unit that formalizes the boundary between the national and the international -- is in the process of erosion and reformulation. In Part VII, I take issue with Roth's adherence', to the state as a juridical entity bereft of its cultural, national, and ideological dimensions. I argue that, unless the state is thought of in this larger context, it is easy to fail to appreciate the legitimacy/illegitimacy of the postcolonial African state.

Last, in Part VIII, I examine Roth's analysis of the indeterminacy and limitations of both liberal advocacy for participatory rights and neoconservative advocacy for effective control as barometers of legitimacy. Neither of these approaches to legitimacy can be seen outside its alliance with regressive political and economic programs. For example, Roth celebrates Haiti as a success story of intervention because it exemplifies the emerging liberal consensus that participatory rights are a barometer of legitimacy. But the celebration of intervention should not obscure its costs. As a consequence of intervention, President Jean-Bertrand Aristide abandoned a popular economic program that would have benefited the large Haitian underclass by redistributing the wealth held by Haiti's military-economic elite. This also resulted in the return of poor Haitian refugees to Haiti in violation of their rights against non-refoulement with the legal imprimatur of the United States Supreme Court and the collaboration between the United States and the Haitian elite in the domination and exploitation of the Haitian underclass. The Review ends with a conclusion that sums up the broad outlines of my argument.

1. DEFINING ROTH'S NEOCONSERVATIVE REALIST CRITIQUE

   I characterize Roth as a neoconservative realist for a variety of reasons. First, Roth, like early American realists, is...