B. On Method 1: The Material and the Immaterial

There are two forms of international law: Material PIL and narrative PIL. Material PIL regulates the world, narrative PIL comments on certain aspects and effects of this regulation. Material PIL generates binding commands, while narrative PIL produces legal fantasies—visions of an unrealizable world to come. Susan Marks’ concept of “false contingency” gives us a lens through which to distinguish the two systems.Footnote ³

Marks coined the term false contingency for a form of analysis which asks why, in a constructed and contingent social world, certain things happen and others do not, and why this gives rise to discernable patterns. Analyzing why some legal claims are realized while others remain ephemeral, Marks develops a distinction between legal pronouncements which affect the material world of distributions and choices, and those which do not: Material and narrative PIL respectively.

Although all methodologies are arbitrary assemblages of discrimination, Marks’ focus on actualization is productive. It exposes a different data set from which to analyze PIL, and its role in regulating global order. Marks’ approach allows us to identify and theorize data by distinguishing normative demands which are actualized from those which are not. This approach is concerned with empirically observable impacts and patterns. It focuses on what will actually happen if a state pursues a specific activity, deemed delinquent, by either material or narrative PIL. Will the “delinquent” state incur a “cost”? Will it be punished, corrected, coerced into compliance? Will the “law” be upheld through enforcement action? Is the probability of enforcement likely to secure advance compliance? Or will the delinquent state endure nothing more than the scorn of its self-appointed judges? Are there empirically visible patterns of conduct which might identify legal rules?

Marks encourages us to look at PIL from the perspective of actualization, not how “good” a legal argument is, but whether it was actualized or not. We can then determine whether there are patterns among those norms which are actualized, indicators that suggest likely realization of similar norms in the future. This perspective also emphasizes that most of the legal claims made in the name of PIL are not actualized, they are false contingencies.

I wish to dispute the common understanding that PIL is a legal system. I do this by adopting H.L.A Hart’s critique of PIL’s lack of material or empirical identifiers. That is, I will argue that the absence of enforcement of PIL deprives it of its character as a legal system. I understand that it is unfashionable, perhaps even impolite, to return to Hart when critiquing PIL. Yet I plan to do so, and I should explain why. I used to believe that Hart’s critique didn’t matter, it only showed that his theory was wrong, or inappropriate for PIL. Footnote ⁴ PIL might have been weak, but it functioned like a legal system, despite its lack of institutionalization. I have changed my mind on this point.

This is because I have come to realize that narrative PIL shares its normative space with material PIL. We have focused on narrative PIL while material PIL plays out uncommented. Consequently, we must turn our attention to material PIL, in particular the global legal order (GLO). As it currently functions, this closely resembles the Hartian archetype. It is institutionalized, ideologically homogeneous, possessing the “committed internal point of view”, and its commands are obeyed or enforced. It has rules of recognition, change, and adjudication. It is operated by an institutionally powerful, ideologically homogenous, community within international economic law. The GLO is the contemporary manifestation of extractive PIL.Footnote ⁵ Its normative injunctions have observable, often deleterious, effects in the physical world.

The concept of a “legal system” on which I rely, is drawn from the analysis of municipal law, from the jurisprudence of municipal legal systems. Thinkers as diverse as Bentham, Austin, Holmes, Cohen, Llewelyn, Fuller, Kelsen, Hart, and Dworkin agree on certain criteria for a legal system—some demand more, others argue that the criteria are not met. These include the need for institutionalization and enforcement as prerequisites for the identification or recognition of legal norms. A norm is objectively observable only in compliance and enforcement.

However, the key contrast in this article is not between PIL and municipal law, but between narrative PIL and the GLO. The Hartian theory of municipal law is either banal—law is what judges do, but how they interpret law is discretionary—or implausible—all judges decide cases in a coherent, internalized, and thus predictable way. Nonetheless, it is worth emphasizing that the nature of indeterminacy is different in municipal law and PIL. In municipal law, indeterminacy is constrained, temporarily suppressed, by authoritative judgment; particularly of apex courts.

The legality of abortion was recently under legal dispute in the USA, and the Supreme Court over-ruled the iconic Roe v. Wade judgment.^{Footnote 6} The “constitutional law” on abortion is radically indeterminate, the court could have made any of three incompatible decisions: Abortion is constitutionally protected in all states; the constitution says nothing on abortion, it is a state decision; or abortion is constitutionally prohibited in all states. The law neither determined nor predicted this decision. The politics of the Bench helped us predict the decision, but the law was used only to justify it.

Nonetheless, despite this indeterminacy, we can identify impartially the current US law on abortion, at least in its core tenets. Under Roe v. Wade abortion was constitutionally protected in the USA, even if its peripheries were contested, and its center under threat. This same determinability remains even after the Supreme Court, in Dobbs v. Jackson Women’s Health Organization,^{Footnote 7} over-ruled Roe v. Wade. The law has changed, the legality of abortion is now a state decision, but we have a temporarily authoritative determination of what the law is. Only at the moment of decision does the law’s radical indeterminacy come into play, it is then suppressed by the fact and content of the authoritative decision. The indeterminacy remains at the textual and discursive levels: There was a dissenting opinion, attorneys can challenge the law in subsequent cases, academics can critique the decision and the new law. But at the material level, everyone will still be able to agree on what the law actually is— whether they support or oppose it.

Law is an institutional fact, a thought object, but the institutions in which it is formed are brute facts, manifested in empirical reality. The enforcement of law is also a brute fact, empirically observable, and sometimes patterned, consistent. This enforcement, what is deemed to be the dispositive rule, and how it is interpreted, is the law as it is actualized— the law as it becomes a brute fact, and thus becomes observable. Alternative dispositive rules and interpretations are dispelled. If the enforcement of law is consistent, these dispelled alternatives are excluded from the legal system. This is what Robert Cover calls the “jurispathic function” of the court.Footnote ⁸ In applying law, courts kill off alternative normative visions; we must kill law to create law.

The jurispathic function is central to the courts’ role in maintaining the legal system. Legal arguments are easy to create, alternative normative visions proliferate, and the courts’ role is to maintain order, to tame “the fecundity of the jurisgenerative.”Footnote ⁹ The courts distinguish competent from incompetent legal argument, and create authoritative interpretations of the text in question. The jurispathic function maintains consistency, to define “legally cognizable material” and thus restrict it to manageable proportions. Competent legal arguments and authoritative interpretations are those consistent with the courts’ previous rulings. These will be, to varying degrees, consistent and inconsistent, but will likely display certain “structural biases” which manifest the politics of the legal system.

The jurispathic function is rarely able to keep more than a semblance of coherence unless the substantive politics of the system officials are consistent. This political homogeneity is what Hart referred to as the “committed internal point of view.” The more politically diverse the system officials are, the less easy it is to predict what will be accepted as competent legal argument, and which interpretations will become authoritative. In the absence of system officials, it is impossible to determine which argumentative techniques are competent, or which interpretations are authoritative. In narrative PIL, there are no authoritative system officials or institutions, the jurispathic function is missing entirely, and legal claims proliferate unconstrained. All legal argument becomes equally (in)competent, with no text or interpretation authoritative.

Here indeterminacy is radical and inescapable. This is because there is no person or body authorized to make authoritative decisions on the momentary content and meaning of the law. The system is not institutionalized, and anyone can claim to determine its content. These claims will be received differently by different audiences in different times and places. The professional practices and competencies of their proponents will factor into this reception; but the understanding of professional competence will differ between disparate communities of international lawyers. Different communities perceive different systems of narrative PIL, different rules. There is no mechanism or referent through which to evaluate their relative competences, each is as unauthoritative as the others.

Narrative PIL is radically indeterminate, municipal law is momentarily determinate but subject to unpredictable change. My argument is that that specific manifestation of material PIL that I call the GLO sustains its temporal determinacy to the point that it becomes a fully empirically observable, normatively internalized, coherent, and predictable, legal system. We can identify its laws impartially, whether we support or oppose them. But as a rule we do not, we expunge this data from the analyses of narrative PIL. Narrative PIL is not a legal system; the GLO is. And it produces the delinquency that narrative PIL can identify, but not correct.

To summarize so far, the set of discourses we have come to call PIL is bifurcated into material and narrative forms. Material PIL regulates the world, while narrative PIL comments on the world as regulated. Material PIL follows an extractive logic, while narrative PIL manifests a variety of emancipatory logics. Material PIL contains, but exceeds, the set of institutions I call the GLO. Narrative PIL is fragmented along both disciplinary and methodological axes. Narrative PIL is radically indeterminate, the GLO is not—it is highly determinate and predictable. The rest of material PIL becomes determinable as it is actualized; I take no position on whether it is predictable.

False contingency operates as an analytic schema which allows us to differentiate between normative claims that are actualized and those which are not. This is important in both legal academia and the various practices we call PIL. Academics and international lawyers each mass-produce legal claims, often in the pursuit of “progressive legal change.”^{Footnote 10} However, few of these are realized in practice—judges do not change their opinions in accordance with academic dictates, and PIL is “unenforced.” This creates a distinction between material and immaterial legal claims (or norms, or laws).

In PIL, it unveils a distinction between two normative orders which I call “material PIL”^{Footnote 11} and “narrative PIL.” Narrative PIL is immaterial, it leaves no trace beyond its texts and arguments, no impact on the events examined. It has no empirical referent, and its texts and arguments are contradictory, it is radically indeterminate. Material PIL in contrast is clearly determinable, and in places highly determinate. This is because its injunctions are inscribed on the body of the Earth and the bodies of her inhabitants. Put simply, material PIL is that which actually happens, those normative claims which are actualized, which can be seen in empirical reality.

False contingency exposes the bifurcation of PIL into two distinct systems: the quietly operative system of material PIL and the spectacularly ineffectual critiques launched by narrative PIL. I would like first to outline material and narrative PIL, and second to identify a specific subset of material PIL which, I contend, operates as a self-contained legal system. I call this the Global Legal Order (GLO).

C. Narrative PIL, by Contrast, Is Radically Indeterminate

There are two levels at which radical indeterminacy is structurally embedded in narrative PIL. First, it is manifested in the inconsistencies and tautologies of the commonly accepted sources doctrine. Second, it is entailed by narrative PIL’s lack of institutionalization, hierarchy, and external authority.

D. Professional Construction and the Agglomeration of International Lawyers

International lawyers are professionally constructed within different “communities” and this process conditions, or even determines, our understanding of PIL and its practice. That is, different international lawyers learn to “do” PIL in different ways; our communities define PIL for us, identifying specific institutions, texts, and argumentative techniques, as authoritative and competent. These background assumptions are internalized during disciplinary training; but their content differs from community to community.

We are not trained to be “international lawyers as such,” but to represent the particular traditions, postures, and rituals, of our formative communities. There is no “PIL as such,” no “invisible college of international lawyers,” only a divisible college of discrete communities. PIL is radically indeterminate, and each community functions to impose intelligibility and create the appearance of determinability. They can succeed only within their own construction of PIL. But all have different constructions, and none is more competent than any other. The existence of these communities has been acknowledged in international legal discourse, but from the assumption that they are new, and dangerous, phenomena—which threaten PIL as a unitary entity already under threat, and so must be examined and contained.

There is no agreed name for these communities. But naming them is important. Although “what matters most is to analyze … how these communities are structured and how they function;”^{Footnote 56} the concepts we import from other disciplines come with their own baggage. This affects analyses conducted through them. We need a concept which reveals, rather than distorts, how PIL’s communities are structured and function. The existing analyses must be problematized. In my view, these were undermined by three things: The attempt to fit the data into the adopted concepts, the oscillation between concept, and the analysts’ own desire for unity in PIL.

We are not trained to be “international lawyers as such,” nor trade lawyers, human rights lawyers, environmental lawyers, et cetera “as such.” But we are taught to think of ourselves that way. We are professionally constructed within specific communities of international lawyers, each delimited in numerous ways: Geographically, politically, ideologically, theoretically, et cetera. Each constructs its own normative universe, with its own causal or imputational laws, exceptions, rationalizations, and standards of legal judgment—which its members internalize and believe to be “international law.”

E. Performing Legality: How PIL’s Communities Function

As bodies of norms, all legal systems are radically indeterminate. The law can be read differently by different people. In municipal legal systems, this indeterminacy is suppressed by momentarily authoritative judgments. The U.S. Supreme Court’s decision in the Dobbs case was legally entirely undetermined, the judges decided as their politics, ethics, and so on determine. There was a minority dissenting opinion. However, the judgment made the law clear, and relatively determinate—impartially cognizable to supporters and opponents alike.

Indeterminacy is constrained by the structural bias of institutions. Consequently, the more homogeneous an institution’s system officials are, the more indeterminacy will be constrained. Judgments will be consistent, not because of the law, but because of the consistency of structural bias. All judges will interpret the law in the same way. This homogeneity is to be pursued by adopting the “committed internal point of view.”Footnote ⁹⁹ This is a commitment to the normative vision of the legal system. Conversely then, the more diverse the system officials are, the less structural bias will constrain or determine decisions. Lawyers and judges with different normative commitments will argue and decide the law in different ways.

I am not a student of municipal law, but I suspect that most municipal legal systems embrace a degree of diversity in their system officials. As such, they can only suppress indeterminacy to a certain extent, and over a certain period of time. There is always the possibility of a novel argument, interpretation, or rule being accepted. The GLO, however, displays exactly the kind of ideological homogeneity, the internalized commitment to a shared normative vision, that the Hartian theory valorizes. Its system officials are committed to the same norms, the same interpretative strategies, and the same neoliberal consensus. Consequently, its decisions are consistent and predictable. They are observable because they are obeyed, and enforcement is available if they are breached.

Narrative PIL has no authoritative institutions, and so no system officials.Footnote ¹⁰⁰ There is no body authorized to make or determine the law. Indeterminacy cannot be suppressed, alternative normative visions cannot be pruned, only ignored or denied. Narrative PIL has no authority, no determinable content, and no institution authorized to produce or identify its norms. Yet international lawyers simply carry on their business as usual as if none of that were true.^{Footnote 101} We have routinized techniques through which the absence of effect is invisibilized or excused; and PIL’s radical indeterminacy is made to appear constrained or suppressed. These techniques are produced by our communities of practice, and only work within them; but they can traverse intra-disciplinary boundaries.

PIL is fragmented into functional subsystems, but these too are internally fractured, contested, and incoherent. Each contains various streams, or schools of thought—various communities of practice. Economic law, for example, has dogmatic neoliberals, textualists, proponents of ethical redistribution and/or human rights. These communities disagree about what counts as a norm within their functional domain and about how norms should be interpreted or applied. The same is true in every specialized regime. PIL and its various subsystems were never unitary, coherent, or determinate; but embeddedness in a community of practice makes it appear otherwise.

Viewed “objectively” as a whole, PIL is indeterminate at every level—norm identification, interpretative and argumentative techniques, institutional allegiance—precisely because it is a non-authoritative system. Every legal posture, every normative proposition or argumentative technique is equally (in)competent in every subsystem. There is no international legal system, only a multitude of equally “legally cognizable materials”^{Footnote 102} and “competent legal arguments.”^{Footnote 103} Each of which is an entirely arbitrary collection of assumptions, techniques, and attitudes. Tzouvala pushes this yet further:

And yet that is exactly how the commonly understood “practice” of PIL functions. Participants choose a subject, or an instance of state conduct, and subject it to scrutiny under the terms of PIL as constructed by their community. They seek to demonstrate what that law is, what it means, and how it should be applied. Argumentatively, they adopt the posture of the advocate, and conclusorily, that of the judge. Members of different communities do the same things; but each under the terms of their community’s PIL. They all pass their judgments, and—nothing happens.

This topography situates the GLO, institutionalized and determinate, alongside narrative PIL, comprising numerous co-existing and conflicting communities. An “ethical PIL”^{Footnote 105} often presented (ironically unironically) as the “actual practice” of PIL. This narrative PIL is fragmented along both functional and methodological fault lines. Its practitioners are formed, and operate, within specific communities; and each community has its own techniques for identifying legal data, and denying indeterminacy. Every participant feeds off of the radical indeterminacy of PIL; even those who deny its existence.

The “actual practice of PIL,” the identification, creation, interpretation, and application of norms, takes place within closed communities, and through their interactions with one another. Each community has developed or inherited its own criteria for law-making and identification, for interpretation and application, for competence and judgment. They are communities of practice, whose functioning can be understood using Rajkovic’s concepts of “performances of legality” perpetually suspended in “vicarious litigation.” Rajkovic’s analytic schema complements and expands Marks’, it helps to explain why communities continue to mass-produce false contingencies. It allows us to perceive and interpret the intra- and inter- group dynamics of the varying communities which comprise narrative PIL. Members of these communities are performing legality.

F. The GLO and Human Rights (Abuses):

The GLO is a distinct and functionally differentiated sub-system of material PIL, it resides in what I thought of as the contradictory and indeterminate domain of International Economic Law (IEL). It is operated, and regulated, by a specific set of system officials belonging to a single epistemic community.

It was in uncovering the GLO that I first began to understand the distinction between material and narrative PIL, in the form of the GLO and its critics—progressive international economic lawyers.Footnote ¹³¹ The critiques seemed well informed, the alternative solutions plausible and normatively edifying. Yet the institutions were unmoved and unresponsive; they continued on their path and produced consistent decisions. Their decisions were manifested in reality as they were implemented or enforced.

IEL remains part of narrative PIL. It is indeterminate, contradictory, contested; a discursive playground for neoliberal zealots and social justice warriors to fight over. A virtual battlefield, a site of “vicarious litigation,” and competing legal claims, where everything is simultaneously legal and illegal. In contrast, the GLO is a specific part of material PIL, where rules are predictable and enforced. Once I recognized the two normative systems, the difference between them, enforcement and compliance, became obvious. So too did the coherence and predictability of the GLO’s operations.

I am not, by training or inclination, a trade lawyer or an economist. I was compelled toward studying this area by the recurring dead-ends I encountered when trying to analyze global injustice. My training in PIL, and my increasingly critical disposition towards it, was proving of little help in making sense of the global catastrophes of the present. PIL could name injustices, but it could neither explain nor constrain them. It seemed blind to their systemic character, noting only their continued occurrences, and posited itself as the solution to problems it did not understand.Footnote ¹³²

It was while pursuing these enquiries that I finally began to understand the radicality of indeterminacy in PIL; the ability to use the language of PIL to justify or condemn any course of action. I could then see PIL’s absolute ethical neutrality: How it could condemn or defend war or abortion, detention or torture, freedom or restraint, wealth or poverty. But this indeterminacy co-existed with clear patterns of global injustice. These patterns were determinate and predictable: Poverty and oppression were consistently reproduced in the under-developed world.

PIL appeared unmoored from reality. Narrative PIL is unmoored from reality, but that is not the whole story. Although IEL as a discourse is indeterminate, as a practice it is not. There is a system of institutionalized IEL. For example, the international financial institutions (the IMF and World Bank) (IFIs); the World Trade Organization (WTO) and the system of International Investment Arbitration (IIA)—the GLO. As discursive sites these remain contested and indeterminate. But in practice that indeterminacy has been suppressed by the ideological homogeneity of the system officials.

All four of these institutions—unlike the institutions of narrative PIL—have coercive authority;^{Footnote 133} they can enforce their decisions, impose sanctions. They make laws with real and 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.^{Footnote 134} 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.

There are multiple communities of practice engaged in narrative IEL. However, there is a single, dominant, epistemic community which has captured its institutional machinery. This is a tight knit community of economists, lawyers, and technocrats bound by their commitment to the nostrums of neoliberal thinking. They are the system officials of the GLO. They operate together with a cumulative legal effect that is greater than the sum of its parts; a singular, cohesive legal system. Largely impervious to external critique, these officials have developed and expanded the GLO’s original texts through their jurisprudence and implementation advice.

The technocrats charged with the day-to-day running of the system form “the most influential epistemic communities,” and focus on “the value of liberalization for foreign investors and for … development.”^{Footnote 135} This is a self-replicating community of “academic and consultant authors, who in turn are recognized by others as experts due to their having been endorsed by the WTO. These are the individuals who are then in demand as consultants on technical assistance projects.”^{Footnote 136} As they understand, “their task … almost always involves seeking liberalization in the broadest possible terms.”^{Footnote 137}

They work together to implement a wide range of neo-liberalizing legal and economic reforms in “institutional and administrative systems … in the areas of trade in goods and services, commercial dispute settlement, intellectual property rights protection, development of foreign direct investment, and transparency and the right to appeal.”^{Footnote 138} These reforms are truly locked-in as they are: “[P]artnered with extensive educational programs that include training for officials, lawyers, judges, and business leaders; revision of university curriculums and capacity development; and media-based public education campaigns.”^{Footnote 139}

This facilitates the local internalization of the GLO’s project of governance by “remote control.”^{Footnote 140} It is part of a wider, interlocking system of coercive global governance, material PIL. “The WTO Secretariat is … an … epistemic community that communicates a powerful discourse … which almost always involves seeking liberalization in the broadest possible terms.”^{Footnote 141} 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.”^{Footnote 142} But this liberalization does not facilitate development. Rather, it is a global infrastructure of exploitation and immiseration, regulating “the distribution of advantages through a coercively structured legal order.”^{Footnote 143}

This is a world-making project, pursued coercively against the under-developed state: A one-size-fits-all policy imposition. It took its present form in the 1980’s, as the global debt crisis forced under-developed states into the hands of the IFIs, which had, not coincidentally, been purged of their Keynesian officials and captured by neoliberal technocrats.^{Footnote 144} The under-developed states were entirely at the mercy of this nascently hegemonic regime by threat of bankruptcy and effective exclusion from the global economy.Footnote ¹⁴⁵ Its rule is publicly legitimated by those states’ consent. But there was nothing voluntary or negotiated about the “agreements,” rather “consent” was secured under duress.

As Paul Volcker, then Chair of the US Federal Reserve, and a principal architect of the debt crisis, observed: “When the Fund consults with a poor and weak country, the country gets in line.”Footnote ¹⁴⁶ Consequently, “it may be compelled to accept conditions [otherwise] … considered politically unacceptable.” “A country has no choice but to accept conditions and is obliged to do things it would not otherwise do.”^{Footnote 147} This allowed the IFIs to impose a neoliberal, anti-development, agenda onto the under-developed world.

The loan conditionalities which the IFIs imposed were rigid and obligatory. They took the form of direct orders, “with over 80% of programmes between 1990 and 2004 including conditions,” which demanded neoliberal restructuring.^{Footnote 148} The policies inflicted by the IFIs can be grouped into four sets: stabilization, liberalization, deregulation, and privatization. Each represents a specific aspect of neoliberal economic faith and each has been coercively imposed on unwilling states and governments by interlocking institutional imperatives:

These now infamous, but continuing, structural adjustment policies (SAPs) did not bring economic development, but began a process of immiserating states and peoples.Footnote ¹⁵⁰ GDP growth was stalled or reversed,Footnote ¹⁵¹ and governance became more oppressive:

The WTO complements and further embeds the neoliberal agenda initiated by the IFIs. The “contemporary pattern … suggest[s] that the WTO is moving yet further from the … ‘embedded liberalism’ of the GATT era … towards a very different type of liberal economic and political values.”^{Footnote 153} These too are imposed behind a veneer of consent, but that “consent” is far from free. “In the contemporary economic environment, there are very few states who would wish to wander aimlessly outside the WTO system.”^{Footnote 154} This is particularly true for those already sapped into dependence on foreign direct investment.

The most important provisions of the WTO, for present purposes, are: The Agreement on Subsidies and Countervailing Measures (SCM); the Technical Barriers to Trade (TBT) Agreement; and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Through these provisions, the most coercive aspects of the GLO are imposed, and entrenched within, the under-developed states.

SCM prohibits under-developed nations from using the type of nascent industry protective tariffs and subsidies, through which the over-developed countries built their own national economies.^{Footnote 155} It functions to trap them in their customary role as deposits of raw natural resources and low-cost labor. The TBT agreement complements this, forcing states to streamline their regulatory structures to ensure access to foreign corporations, and prevent favorable treatment for nascent national industries. It was formulated and extended by the same epistemic community, as they “filled the concept of a ‘trade barrier’ with meaning.”^{Footnote 156}

TRIPs entrench this immiseration, obligating under-developed states to recognize the intellectual property regimes of their over-developed “adversaries.”^{Footnote 157} This ensures that they pay monopoly prices for digital and physical technological advances, and for life-saving medicines. These rent-ensuring monopoly structures are once again imposed in the name of “free trade” ideology—“a total abstraction from reality.”^{Footnote 158} The coerced consent of the victims is justified by the doctrine of development. But no state has ever developed using these policy prescriptions, and none ever will. That is precisely the point. Together, these agreements and the IFI conditionalities prevent states from developing.

The internal cohesion, the “distinctive normative vision,”, of this governing epistemic community is clear. When “faced with disconfirming evidence,” like the lack of development and the increase of exploitation and repression, “the view of the organisations was that structural adjustment programmes had paid insufficient attention to the institutions that allow markets to function … but that the underlying market-liberalizing impetus was essentially correct.”^{Footnote 159} There had to be yet more, yet deeper, reform. The cure to the pains of neoliberal reform was the intensification of neoliberal reform.

Under the direction of this epistemic community, the neoliberal diktats of the GLO have been made to cohere and interlock well—to preclude the possibility of under-developed states ever actually developing.Footnote ¹⁶⁰ To legitimize this, the fiction that the flow of foreign investments drives economic development “is advanced by credible international financial institutions, like the World Bank and International Monetary Fund, based on theoretical and statistical models linking the flows of foreign investment to economic development.”^{Footnote 161} Under-developed states “are forced to accept them” and to implement “a package of measures that are prescribed by neoliberal economics.”^{Footnote 162}

This creates a dualistic and contradictory experience of the global economic order, legitimated by “consent,” the unequal burdens, like the unequal treaties of an earlier era, having been “voluntarily” assumed. That consent is entirely fictional. On the rare occasions developed states negotiate with the IFIs, they do so from a position of strength, able to resist both demands and advice.Footnote ¹⁶³ Likewise with the WTO,Footnote ¹⁶⁴ which they created in their own entirely imagined image, and the IIA system which has remained essentially unchanged from its original colonial form.^{Footnote 165}

For the under-developed states, the GLO rules as a legal system. Its rules are determinate and predictable, they demand “pro-market” reforms at the economic and constitutional levels.Footnote ¹⁶⁶ This flows from “the way the trade architecture … is intentionally designed to interject into domestic policy space and to operate based on trade values.”^{Footnote 167} It entrenches “the dominant approach in trade and investment circles that their subject matter is largely distinct from the social contract that states have with their people.”^{Footnote 168} This is colonial governance redux. Neocolonialism streamlined for maximal efficiency and minimal visibility.

The GLO has presided over four decades of “developmental” carnage, with spectacular results. “In 1960, at the end of colonialism, per capita income in the richest country was thirty-two times higher than in the poorest country … by 2000, the ratio was 134 to 1.”^{Footnote 169} This rise continues apace, the ratio is now 439 to one.^{Footnote 170} It is the direct effect of lawful governance by the GLO. The under-developed states’ debts also continue to rise,Footnote ¹⁷¹ as did poverty under unameliorated SAPs,Footnote ¹⁷² and inequality within and between states increases.Footnote ¹⁷³

This is a system of perpetual debt peonage and neo-colonial governance. It immiserates the masses of the under-developed world to subsidize the over-developed states. Economists estimate that the under-developed states surrender a net three trillion dollars annually to the over-developed world.Footnote ¹⁷⁴ This is augmented by another 2.6 trillion dollars lost to “unequal exchange.”Footnote ¹⁷⁵ The GLO governs this extraction.

Under-developed states lack economic sovereignty, and their debt is used to proscribe their policy space. They are “pressed to avoid taking measures that are needed to prevent poverty and encourage sustainable social development through distributive methods of taxation, environmental measures, and observance of human rights standards where those might impact on the foreign investors profits.”^{Footnote 176} Consequently:

The “regimes of trade, investment, finance … are implicated in the construction of this misery … producing, reproducing, and embedding these ills.”^{Footnote 178} This deployment “of the rule of law … promotes stability for foreign investment,”^{Footnote 179} and “ensures that trade unions are suppressed, political freedoms are curtailed, and the legal system is geared to furthering the interests of the dominant groups.”Footnote ¹⁸⁰ It is a system “best promoted in … dictatorships.”^{Footnote 181}

The result is immiserated populations, which must be held in check by financially crippled, economically straight-jacketed, governments, ingraining the immiseration of the masses of the under-developed world and the rule of a cosmopolitan elite of savage robber barons. “A narrow elite in countries undergoing SAPs do benefit from restructuring and increased integration, but the main beneficiaries are foreign investors and traders.”^{Footnote 182} This system subsidizes the states and citizens of the over-developed world, facilitating a range of policy choices—like IHRL compliance—which are simply unavailable to the under-developed states. There, the reforms continue, as does the political repression required to implement them, and the “human rights abuses” this entails: “The need to implement unpopular policies and the need to counter increased civil conflict, in turn, cause the governments of developing countries to reduce their respect for other human rights.”Footnote ¹⁸³ Put bluntly, “[G]overnments undergoing structural adjustment for the longest periods of time have murdered, tortured, politically imprisoned, and disappeared more of their citizens.”Footnote ¹⁸⁴

To summarize briefly, the GLO is a legal system, a discrete part of material PIL. Its rule is consistent, determinate, and exploitative, the modern manifestation of the extractive function of material PIL.Footnote ¹⁸⁵ Under the rule of the GLO, under-developed states are compelled to neoliberalize their economies and societies. This causes economic dislocation—it makes people poorer, less supported, and more open to exploitation. The GLO’s policies are unpopular, as they bring mainly misery. If they are to be imposed, it must be by force and over protest.

But under-developed states are also under the watchful gazes of narrative PIL. From here, their human rights and environmental records will be scrutinized, and they will fare badly on human rights, at least. This is because they must follow the commands of the GLO, and these entail oppressive governance. If states do not implement them, they will be sanctioned: The IFIs will withhold future disbursement; the WTO adjudicative machinery will authorize sanctions; and the arbitral tribunal will award enforceable damages. The rule of the GLO is authoritative.

By contrast, narrative PIL possesses little persuasive force. Judgements will be passed by scholars, activists, NGOs, maybe even human rights committees, or special rapporteurs. There may be some public condemnation, but no funds will be halted, no sanctions imposed, and no damages awarded. The targeted states have no incentive to follow IHRL and are under direct command to breach it. Their actions, however abhorrent, are systemically rational. It is the rule of the GLO which needs to be brought to account.

G. Squaring the Circle: The Interdependence of Material and Ethical PIL

There is more to be said about the GLO, and how it expands through, or interacts with, other aspects of material PIL, notably the UN Security Council and globally active military structures. There is also much more mapping to be done in the fragmented disorders we call PIL. But that lies beyond this brief analysis. I will instead close by hypothesizing that these two different systems—superficially opposed in so many ways—actually form a unitary order where “[t]he ethical mandate of [PIL] occasions a translation exercise with respect to an overall goal, one shared with the powers that underwrite … the international system founded on economic coercion [which] continues to function … with lethal effectiveness.”^{Footnote 186}

The interaction of the GLO and narrative PIL consists of their public loathing and private mutual support. Narrative PIL is not pointless. Things are much worse than that. It is a key component of our contemporary global order; a functional, operatively inoperative, complement to the GLO. Unpacking this apparent paradox “entails a closer look at the work that a [pronouncement of PIL] may do even when it is ignored.”^{Footnote 187} These legal claims “establish an exception (transgression) to the norm (progressive community) contemplated by international law in practice, which is validated in the breach.”^{Footnote 188} They function by “communicating the adequacy of international law, as a sort of beacon.”^{Footnote 189}

They exonerate the present through the promise of continued progress towards a just future, assuring us that things are normally OK and only exceptionally aberrant. But this is simply untrue; as Susan Marks has shown, the “normal” and the “exceptional” are malleable discursive concepts.^{Footnote 190} If we perceive breaches of PIL as exceptional, as moments of crisis, then we are likely to overlook the global suffering routinely produced by the GLO. However, this suffering is in fact “normal.” It is the global norm in a world where almost seventy percent of human beings live on the equivalent of less than ten dollars per day.Footnote ¹⁹¹ The GLO coercively regulates a world where 50,000 human beings die from poverty related causes every single day.^{Footnote 192} The deliberate production of death and suffering on this scale may be abhorrent, but it cannot be understood as exceptional.^{Footnote 193}

Even if we accept that international lawyers “are thoughtful and well-intentioned people,”^{Footnote 194} they still participate in the reproduction of a system of genocidal injustice. We cannot assume that “their ethical integrity and best intentions are sufficient to make the stuff of their professional practice a progressive good.”^{Footnote 195} It is perfectly possible to do bad while trying to do good.

The endless spectacle of failure we call PIL is neither good nor innocent; it both conceals and legitimizes the violence of the GLO. It is intertwined with that machine, and it is materially rewarded for its service, “when international lawyers assume the reality of an idealized international community, their shared imagination creates the working stuff of networks that yield salaries, social expectations, professional obligations, and all of the real-world consequences that come with.”^{Footnote 196}

The material realities of the GLO and the ethical ideals of PIL are aligned. “The ethical ideal is predicated in part on material distributions” effected by the GLO, “while [those] material distributions … are facilitated by the ethical legal and political ideals” generated by narrative PIL.^{Footnote 197} The GLO “works to secure and maintain economic conditions that underpin the institutions” of narrative PIL, “and determine in part the lived experiences and expectations of the professionals who practice” it.^{Footnote 198}

This is true for those who champion the “inalienable” or “self-evident” rights of IHRL. Mythical rights counterposed to a reality of legal oppression serve no purpose but to disguise, and entrench, that oppression. International lawyers seek to pit an imagined, though meticulously developed, ideal of underlying legal justice against a lived reality of legalized injustice. They fail, but they are not vanquished. They are rewarded because their Quixotic quest stabilizes the GLO, our contemporary system of legalized injustice.

H. Re-Situation: PIL “Made Strange”

This is not a call to stop “doing” PIL; but to reflect on what it means to “do PIL.” To reflect on how we do PIL and why we do it that way. To ask how we conceive of, or identify, the “stuff” of PIL; not just its content, but its content forming procedures and argumentative techniques, its constitutive elements. What makes particular normative claims “law,” or particular institutions “legal” or “authoritative”? It is a call to problematize the institutions, sacred texts, and exegetical styles we have inherited, adopted, or developed. To reflect on how we allocate, or identify, authority within the discipline. To make this our problematic; which “is not simply a set of questions; [but] the matrix or the angle from which it will become possible and even necessary to formulate a certain number of precise problems.”^{Footnote 199}

Within a problematic, to think “is not to try to tell the truth about any particular given objects … as if there was a world out there waiting for us to lay our eyes on it; to think is to try to solve specific, singular problems.”^{Footnote 200} When we think about PIL, we do not engage a readymade, self-identifying, set of phenomena; we create, or presuppose, that dataset. We presume certain things to be included and others excluded; we presume the “lawness” of PIL, and to know what that means, and thus which things—texts, institutions, actions—possess it. These assumptions implicitly answer certain questions and thus structure our enquiries. But the questions themselves bear reopening.

What is the marker of “lawness” that distinguishes PIL from other practices? Which institutions and texts are perceived as authoritative? Which argumentative techniques are considered competent or exemplary? Tzouvala elaborates:

If we start from the assumption that PIL possesses “lawness,” that certain institutions (like the ICJ) are authoritative, and that certain text (like treaties) create “legal obligations,” there will be an absence of interrogation into why that is so, or what it means. This is dictated by our problematic: if we wish to “apply” PIL, then any challenge to its “lawness” becomes “unthinkable.” Consequently, our understanding is built on arbitrary and untested foundations. To shift the problematic is to expose those foundations for examination.

As regards institutions, my central question concerns authority: What does it mean for an institution to be authoritative? Which characteristics distinguish authoritative institutions, singularly or as a group? What do these institutions do, and does this materially affect the world? Do things “improve” when they act? Do things stagnate or regress when they do not? Legal texts generate similar questions. Which specific features identify a text as “legal”? How are they to be differentiated from non-legal texts? How do texts, including identifiable CIL, interact? Can they be hierarchized? Does the “interpretation and application” of these “legal texts” have observable effects in the physical or geopolitical world?

There are, of course, boilerplate answers to all of these questions. Institutions that mimic the rituals of municipal courts or legislatures are identified by form. The same for treaties—whose structural homology to contracts and legislation is taken as dispositive of their legal nature. H.L.A. Hart pointed all of this out long ago.Footnote ²⁰² But his insight has been pointedly ignored, especially by self-proclaimed Hartians. Questions of function are largely exiled to the peripheries of the discipline, manifesting as dreams of eventual enforcement, or a dedication to compliance studies and its mysterious “compliance-pull.”

Legal argumentation bears the burden of this exile. With no functionality criteria in play, it becomes completely arbitrary to model argumentative technique on any particular institutional setting or practice. For most international lawyers, the only places to argue are in conferences and journals; the only institutions to simulate are those which mimic municipal institutions. PIL is reduced to a re-presentation of domestic legal argumentation; with only arbitrarily chosen external referents to judge it against. Analogous questions thus arise: Why those techniques? Are they derived from “empirical” observations, or rhetorical, or statistical studies? If so, based on what? A specific institution in PIL or elsewhere? Are they model strategies drawn from philosophical idealism in some form?

At all three levels—institution, text, and argument—these questions are answered, implicitly and differently, by diffuse communities of practice. They are rarely engaged consciously, yet each community believes its own answers to be best. And there are no meta-standards against which that belief can be tested. So, how might we rank them, or assess superiority? What would form the data, either to judge a transplant or begin a new study, in PIL? Empirical analysis might work and provide interesting data about specific institutions. But the discipline as a whole is too plural, conflictual, and unruly, for such analyses. There is too much data and too many techniques for discriminating amongst it.

This altered problematic reveals narrative PIL as a fragmented accretion of differentiated communities of practice, existing in a vast normative void full of content, ever increasing content, and an ever-growing assortment of “legally cognizable materials.” It is more like a legal black hole—an unbearable mass of normative “stuff”: The elements of law. Undifferentiated law, each of it embodying some unreflected “lawness..” Each community’s “legal system” has been constructed from materials abstracted from this mass. But through this act of inclusion (abstraction into the relevant), everything excluded is deemed irrelevant to the practice of PIL. It is banished into normative exile; the black hole is emptied of all “irrelevant” content.

Again, of course, different communities do this differently. Every piece of the data is relevant to someone, to the construction of some specific international lawyer. And no community can expunge data claimed by another. The void cannot be emptied; the black hole retains all of its mass. Envisaged as a whole, the data reveals chaos. But any constriction or abstraction to a manageable data set, empirical or idealist, is entirely arbitrary. These “pre-interpretative” processes of data identification are taken as “given;”^{Footnote 203} “academic lawyers … begin in answers to those questions that they take to go without saying.”^{Footnote 204} Both the questions and the answers are determined by PIL’s “communities of practice;” that is their primary function. By imposing their problematic, communities determine the appropriate approach for their members. This provides both comfort and complacency. It is why we should reflect on our situated selves, our communities of practice. What do they demand from us; what do they give us; but also, what do they do in the world?

Each community perceives its beliefs to be true, important, and universal; each understands itself as uniquely competent, and its adversaries as misguided or incompetent. Whatever their interlocutors are advocating is not a (recognizable) practice of law; they are simply “not part of the discourse at all.”^{Footnote 205} Absent significant self-analysis, the individual members of each community will unreflectively share and promulgate those beliefs, confusing our socialized beliefs with universal truths about PIL. This is patently absurd, but our professional training inures us to that absurdity. My own earlier work exemplifies this: “Law, to be understood or used at all, must be delimited and defined, it must be separated from non-law; and that separation must rest on something more discriminating than the self-image of its ‘speakers.’”^{Footnote 206}

But that “something” could only be the self-image of the community-embedded international lawyer claiming the right to judge their peers and to judge who counts as a peer. Instead, it behooves us to remember that there are other communities of international lawyers, whose world views and core assumptions are very different to our own, and whose analyses, interpretations, and identifications of PIL are also very different to ours. They are no less international lawyers than we are. They are no less entitled to determine and define the content of PIL; no one has the authority to define PIL. We can only argue over its content or discuss its actualization—whether we perceive that as realization or breach.

I. Closing the Circle: A Return to My First Enquiries

With the benefit of hindsight and personal reflection, it becomes clear to me that this article has been very long in the making—it closes (for now) an inquiry I began well before I had heard of epistemic communities or the fragmentation of international law. This was the topic which drove my PhD, though I did not recognize it as such then. I spent many years pondering how to rescue PIL from its internal multiplicities and how to capture the system as a whole. I saw methodological pluralism as its defining pathology and sought a technique to constrain it. Twenty years on, I can appreciate that methodological, substantive, and political pluralities, like the radically indeterminate normative orders they produce, are in fact central to PIL’s functioning. A necessary price, as Koskenniemi might say, for the discipline’s imaginary centrality in international life, but also a deceptive cover for the very real centrality of its darker forces in our contemporary global (dis)order.