The centennial celebration of the American Society of International Law is an appropriate and exciting occasion during which to have a conversation about international legal theory. This discussion provides the framework within which internationalists can continue to develop, expand, and transform existing legal theoretical frameworks to account for political, social, and economic changes in contemporary times.
The panel description was broad and purposefully flexible to allow each of us to decide what to address. Professor Kingsbury did suggest, perhaps knowing that it is what I would likely do anyway, that I might focus on the Americas. So I will, but first some thoughts about what focusing on the Americas means to the general conceptual framework of international legal theory.
At the core, it means that the IL framework must be structurally transformed, developed, and expanded to include what I will call a latcritical perspective. (1) That is a perspective that, while not speaking with one voice, has a unitary purpose--a non-essentialist, antisubordination, human well-being liberatory goal, the aim of which is that all peoples can participate in and enjoy the repasts being served at the global supper table.
A latcritical perspective is both real and metaphoric. Real because Latinas/os are a diverse group of people who provide a panethnic prism; who speak in a multiplicity of often cacophonous voices. Latinas/os are, simultaneously, the colonizers and the colonized. Today Latinas/os constitute a group that often is recolonized by the globalization movement. A latcritical perspective is also metaphoric because, in its essence, it rejects exclusion, hierarchy, subordination, and colonialism.
Thus, a new international legal theoretical paradigm is in order, one that focuses on human welfare. Such an approach requires first that instead of looking at the perpetrator perspective of markets, it look at the consumer perspective of economic deprivation--hunger, homelessness, joblessness, penury while employed, invisibility, analphabetism, malnutrition, general healthlessness. Next, the approach requires that such privation be equated to violence.
I suggest that we look at the world through the eyes of the consumer of violence. If we think of this consumer, s/he exists at the economic margins, not seen, not heard, dismissed. The disempowered hear hostile voices from everywhere: the north of the south, often by way of the state, offering them up on the race to the bottom to the north, with some exceptions emerging these days in the form of Lula from Brazil, Chavez from Venezuela, Morales from Bolivia, and Bachelet from Chile. But the impetus towards instituting change by these heads of state is not being greeted with kindness. For example, the commentary on Morales is stunning. To my ears it constitutes unprecedented mockery of a male head of state on ostensibly insignificant issues like clothes. I have repeatedly heard about Morales's lack of respect to others and to his own position for not wearing "proper" Western clothing (i.e., a suit and tie) as a head of state. There is also racism in the references to him as "ese indio," (2) a reference that seeks to invoke his savagery, backwardness, analphabetism with the ways of modernity, if you will--as if eschewing western clothes weren't a rational choice.
In regard to the Americas, one also must consider the role of the international organizations, particularly the International Monetary Fund and the World Bank. These institutions, in addressing markets in the Americas as if speaking to a petulant child, require their kind of fiscal responsibility with opening markets, privatizing services, decimating welfare programs, and ripping up social safety nets. These approaches are considered sound, regardless of the impact on the people, many of whom are the poorest of the poor. And leaders who try to take care of the poor, including those mentioned above, are mocked for their human concerns or denied aid for their wasteful or irresponsible ways.
Interestingly, thinking of the Americas, if we look to who crafted the norms existing today we will see participation from the South. But this was an illusory inclusion from an illusory South. The participants were elites who thought like the North/West. Indeed, they were largely educated in the West, unveiling the reality that there is a North in the South, just like there is a South in the North. And in all geographies it is the other who is marginalized. None of the voices heard is that of the tired, the poor, the infamous huddled masses yearning to breathe free. This unveiling in turn exposes the faux premise of the so-called neutral normative standard.
In the Americas it becomes patent that the course of development of human rights ideas and trade regimes has taken parallel paths, never crossing or even speaking the same language. That is ironic because it was the same actors who participated in the development of both disciplines.
The human rights documents of the Americas integrate civil and political rights with social, economic and cultural rights, recognizing the indivisibility and interdependence of the different categories to achieving full personhood. And the purpose of trade documents, explicitly stated, plainly is to promote economic well-being--to alleviate poverty, and to promote education and health. Yet, decades after the creation of trade agreements and human rights treaties, the human condition has not shown improvement. This shows the resistance of praxical results from theoretical musings. The problem, I suggest, is power, and the fiction of neutrality that lets it keep its hold.
Take, for example, the supposed gender neutrality of trade laws. The accepted narrative is that trade laws are neutral in all ways. They apply across the board; they have no gender, no race, nothing. Facts, however, mock this claim of neutrality. Poor countries are consistently...