Operation ‘enduring freedom’
THERE is no manner of doubt that visions of world orderings and the role of international law, stand unalterably transformed by the catastrophic events of 11 September 2001 and the current response of the ‘international community’. Perhaps, this period will be recalled and recounted as marking a turning point of post-modern inter-national law.
We can only speak to these critical events (in the sense that Lyotard endows) as they unfold before our own eyes, from our own unhappy situatedness; the Clio’s couch, the disengagement that only distance may bring, is not for us the gift of time. We have to struggle as best we can to make sense of current developments, amidst ever menacing forms of infliction of traumatic human suffering. This struggle is necessary, especially in an emergent global milieu rife with what early Habermas was to name as ‘systematically distorted communication.’
The grave narrative risks that one runs in writing about September 11 and its aftermath may not be minimized. The massive inhibitory injunctions arising from a ‘either you are with us or with them’ syndrome produce a real enough chilling effect on critical discourse. Further, to render 9/11 within a wider history of global violence (and this forms a very large contemporary narrative) is said to devalue the real sufferings of 9/11 people. The peoples of Chernobyl, Bhopal, Ogoniland and beyond may well, but ‘inconsequentially’, think otherwise. What ‘they’ do to us is always different from what we may do to ‘them’ is a mindset that further aggravates narrative risks.
9/11, as we see later, enacts a very distinctive politics of memory in which stands inscribed what Nietzsche called ‘the principle of value estimation’, accompanied by ‘ecstatic nihilism’. That principle covertly guides differential estimation of the value of human life and social suffering according to their location in global spaces. Ecstatic nihilism manifests ‘the ideal of the supreme degree of powerfulness of spirit’ in which nihilism ‘could be a divine way of thinking.’1 Much of the public policy rhetoric, especially in the United States, concerning the preservation of ‘freedom and civilization’, indeed, reflects the new theology of the Will to Power. As we approach the first anniversary of 9/11 a sacred iconography is already in place to which all narratives must render ‘due’ obeisance.
In the context of here and now suffering and the paranoia of the sole surviving superpower, public intellectuals, international lawpersons among them, by and large need to hedge their bets as it were. On the one hand they respond to the felt necessity of condemning acts of mass international terrorism; on the other, they also feel constrained to sustain the logics, paralogics, and languages of human rights amidst the emerging imperial conception of state and global security. Although international lawpersons are by now accustomed to the agonies involved in confronting politics of human rights with politics for human rights,2 9/11 presents many poignant demands on their epistemic capability and competence.
First, international lawpersons feel summoned to develop non-adversarial forms of ethical discourse that speak to the tasks of human justice under conditions and contexts of terror. By no means unique because Sisyphean labours remain necessary in every generation to preserve the fragile and hard won ‘enclaves of justice’ amidst the real and virtual destruction of ‘justice constituencies’,3 the tasks of conversion of the texts of power into texts for justice in the post 9/11 contexts remains awesome, especially given the ever proliferating justificatory strategies and stratagems, on all sides, for the practices of politics of mass cruelty.
The relation of violence to justice poses the crucial question here. And neither term in this relation carries the weight of self-evident meanings. International lawpersons and theologians have debated for many millennia (especially if we were to cognize specific pre-Christian traditions of discourse) the issues of ethical and legal controls over international conflicts in the idiom of just war and just means in conduct of a just war. And modern international humanitarian law has valiantly struggled to invent and to implement norms enacting the Grotian temperamenta belli that seek to inhibit ‘unnecessary suffering’. This discursive tradition is not easily foregrounded in histories of terrorism and creates a special difficulty in the posing of the question of the relation between violence and justice, even to a point that some may regard this line of enquiry as diversionary.
But a closer look suggests otherwise. Both insurgent actors/communities and dominant power formations claim that the recourse to extravagant violent means (imposition of extraordinary violence affecting innocent human beings not directly involved in the contest of the Will to Power) is justifiable under the banner of ‘justice’. For the ‘terrorist’, practices that result in injury or death of innocent persons are integral to tasks of ‘justice’, ‘liberation’, and ‘emancipation’. The proponents of ‘war against terrorism’ also justify the destruction of the enemy and ‘collateral damage’ by recourse to the values of ‘freedom’, ‘democracy’ and ‘global security’, within which the tasks of justice may seem to make sense. Each of course seeks to justify its violent and cruel politics as ethically superior.
One has just to revisit the histories of the Cold War to fully grasp this. Warlike acts that constitute practices of politics of cruelty remain as ethically problematic as those entailed in practices of terrorism. For, if war remains the practice of politics by other means, terrorism also expresses violent political engagement. The experience of 9/11 and its aftermath would be divested all historic pertinence were it not to invite some anxious consideration of the relationship between violence and justice. I cannot (for reasons of space) explore this theme fully here save saying that contemporary metamoral/political theory addresses, in effect, mainly the ‘justice’ of counter terrorism.4
Second, 9/11 as an inaugural demonstration of a fierce ability of non-state actors to render even the solitary Superpower eminently vulnerable, marks the beginning of the end, in more decisive ways than ever before, of hegemonic patterns of force monopoly on which much of modern/contemporary international law ‘rests’. This generates a precipitate quest for jural and juridical renovation of international and national, law even if only on behalf and at the behest of the Euroamerican world.
Pre 9/11 this world remained indifferent to, indeed it was complicit with acts, events and performances of ‘insurgent’ and regime sponsored terror in many a postcolonial killing field. Post 9/11 hegemonic politics creates a consciousness that North/South dichotomies ill-serve the new security needs of the one-third world. It is still too early to forecast where this quest may lead us; the available portents, as we see later in this essay, bear currently the visage of evil omens.
Third, forms of global political discourse since 9/11 mark the acute crises of hegemonic nervous rationality. On the one hand it understandably excites mass politics of justice, hysteria and revenge. On the other it also invites the translation of indignation into a radical renovation of the received international law languages of self-defence, collective security and world peace. The former is scarcely conducive to ‘reflexive equilibrium’ that ought to situate any meaningful moral global response; the latter, as a consequence, conflates translation and transgression, the work of instant political time that invites acceleration of the future history of humankind regardless of costs of human rights values, standards and norms.
Fourth, and related, the doctrine of sovereign equality of all states, including the strong states, now also signifies equality in state vulnerability; that vulnerability also begins to operate as a source of strength. Already new forms of articulation of legitimation of global power are in place: ‘North’ global patriotism, a species of globalizing neo-Kantian version of ‘cosmopolitanism’, now in the making, entails citizen allegiance to ‘war against terror’, the ever escalating sharp division between ‘global’ citizens and violent ‘outlaw’ human beings. A New Cold War seems now in the making in which ‘constitutional patriotism’ (to evoke the phrase regime of Jurgen Habermas) will, yet again, strive to justify global reproduction of rightless peoples in service of ‘our’ common future.
Fifth, 9/11 invites yet again the performance of negotiation between the power of suffering and suffering of power. Jean François Lyotard reminds us concerning the constitution of the ‘realm of the political’. ‘Ethics,’ he says, ‘is born of natural suffering; the political is born from the supplement that history adds to suffering.’ This history stands now singularly appropriated in ways that already forbid the labours of excavation ‘into the substrata of necessity,’ to seek ‘out there the meaning of the most irrational of historical effects’ beyond the felt, and false, necessity of the construction of ‘the comprehensible and complete tableau of reality…’ 9/11 on this perspective invites attention to ‘the obscure passions, the arrogance of leaders, the sadness of workers, the humiliation of peasants and of the colonized, the anger and bewilderment of revolt; the bewilderment, too, of thought.’ 9/11 invites us all, further, to ‘find again the thread of class [and one may add "race" and "patriarchy"] in the imbroglio of events.’5
Transformations of International Legality: The critical events disrupt the extant Westphalian notions of international legality and visions of world order in many precipitate modes.
First, performative feats of global diplomacy now aim to produce a resilient consensus, far from ephemeral, providing ‘justifications’ for a global ‘war’ against ‘terrorism’. For well over quarter century (since 1972, when the General Assembly placed ‘terrorism’ as a major concern for the United Nations system) the North states have, while rhetorically condemning terrorism, failed to produce an operative consensus on its definition.6 Now, almost overnight conscientious objections to cooperative production of definition of international terrorism vanish before our own eyes; what we witness today is the emergence of a regime of instant customary law constructing the notion of ‘mass international terrorism’ and a repertoire of ‘appropriate’ global responsiveness.7
Second, unsurprisingly, a ‘network’ global society now generates ‘network’ international law. The ‘war’ is against networks of terror, comprising actors from many different nationalities, dispersed across many state territories and the ‘space of flows’8 that constitute a defining feature of globalization. The global ‘war’ against terror is a war against deterritorialized agents and agencies, scarcely recognized as subjects, or even objects, of international law. It is also an emerging necrophilic network of ‘anthraxic’ terrorism, no matter how variously described as being ‘endogenous’ or ‘exogenous’; a truly catastrophic incarnation of a ‘world without borders’.
Third, all this entails a new kind of networking of orders of state sovereignties where a large number of national, regional, and global agencies crisscross to fashion unusual, even extraordinarily shifting, yet ‘vital’ strategic alliances. If we were to understand future histories of terrorism in relation to globalization (especially in terms of accessibility of technologies of mass violence and ‘militarization of ethnicity’9) and to the structural inequities of global trade and production, this is a ‘war’ that will most likely continue across generations, raising a whole menu of intractable international law and policy questions/issues. I randomly name these here, fully aware that they invite ceaseless doctrinal/normative reformulation:
* How, and through what processes of production of legitimate international law normativity is the notion of ‘mass international terrorism’ to be constructed? Is cross-border terrorism affecting two states an aspect of ‘mass international terrorism’? If so, what regimes of general and specific duties arise for the community of states and for the solitary superpower prone to pursue unilateral police action? What duties ensue for the United Nations system?
* How may we rework/recontextualize the requirements of reasonableness and proportionality in respect to use of such force? Is ‘collateral damage’ in presumptive acts of ‘self-defence’ an international tort, attracting duties of restitution, reparation and rehabilitation? In what ways may we refashion the current regime of silences in the ongoing work of the International Law Commission, directed to progressively recode the international law of principles governing state responsibility?
* When these networks of terror are concentrated within sovereign state territories, does the use of force against them make the affected state in turn a ‘victim’ state? Does then the ‘victim’ state, configured here as recipient of unilateral or collective military action, have (at least a notional) right to self-defence against ‘police’ action networks of global terrorism? What may be said to be the scope and nature of this right?
* When sites of terrorist acts are authoritatively located (in terms of direction and control, or siege social) in specified sovereign territory of a state, does the right of self-defence extend to selective military operation against specified ‘targets’ without involving consent of that state?
* What peaceful means and due process, by way of exhaustion of local remedies in combatting acts of mass terrorism are owed to a state/peoples subjected to ‘collective’, whether so ‘thinly’ or ‘thickly’ disguised, acts of self-defensive threat or use of force?
* Do ‘thinly’ or ‘thickly’ disguised acts of collective self-defence extend to restructuring governance in states that may be said to help/harbour terror networks? If so, what principles of international law and jurisprudence of human rights may be said to arise?
* What duties under international humanitarian law arise for relief and rehabilitation for collective/mass exodus caused by hot pursuit of terrorist agents and networks? May neighbouring states justly ‘seal’ their borders during the exercise of individual/ collective self-defence?
* How may we develop non-discretionary norms in this respect that compel tasks of international development/rehabilitation assistance to human populations actually exposed to destruction of individual and collective orders of hurt/injury/mayhem to their actual/potential life projects?
* Is there a collective right of self-defence for a ‘victim’ state when terrorist attacks produce preponderant harm to a single state?
* How may we construct the categories of ‘helping’ and ‘harbouring’ in egalitarian, non-discriminatory modes?
* In what ways may we extend the law of war (norms addressing legal regulation of armed conflicts) to ‘war’ against terrorism? In particular, how may we refashion the recently adopted Statute of International Criminal Court categories of international criminality to acts, events, performances of ‘war against terrorism?’
* How may we construct an inter-national legal order that disengages reprisal against acts of ‘mass international terrorism’ from the potential for their redescription as constitutive of hegemonic, individual or collective, even United Nations platforms against ‘terrorism?’ This, to my mind, is an issue of singular importance in any so-called, or ‘real’ combat against acts of ‘mass international terrorism’.10
These questions need, of course, to be strategically silenced, as is the case now, in the wake of actual episodes of ‘mass international terrorism’. Yet any meaningful approach to renovation of the patterns of international legality, even of a global ‘rule of law’11 summons close advertence to these, and related, issues. Even though not constituting any estate of their acts of normative free choice, lawpersons of early 21st Christian century thus stand endowed/burdened with a wholly new programschrift. Much of what is left of the future of human rights12 will depend on the ‘daring’ with which they address this agendum.
Causation: The emergent new network of international legality remains based on ontology of the violated Self and the violating Other. This initial dichotomy, however, turns out to be unseemly problematic. The problematic here stands furnished by the choice of ways (the privileging) of collective representations of the violating and the violated Self.
The World Trade Centre victims (though not the Pentagon ones) comprised diverse nationalities, including persons from the South, co-equally confronted with tragic mayhem. If we were to construct the violated self as a multifarious, multitudinous collective site of hurt, then no one state may non-dialogically collectively personify the violated self. There is room for deep contestation concerning the ‘dialogical’ processes that invested the nature and scope of military action against the Taliban regime in Afghanistan. I do not, for reasons of space, address this here. Were one, however, to adopt a fully Habermasian position (or even somehow extend the Rawlsian notion of ‘overlapping consensus’ to inter-state spheres), there is, one needs to concede, space for discomforting argumentation.
If, however, we were to construct the violated self of 9/11 as marking instant global birthing of a deeply entrenched localized/glocal community, it emerges as distinctively American, territoriality here constituting the ‘essence’ of representation. This remains deeply problematic. Nothing in principles attaching to territoriality, as we all (or should) know by now, manifestly authorizes authentic collective self-representation, despite the surfeit of conceptual ‘collective’ conceits that mark the birth of the practices of the ‘we-ness’ of the global coalition against terror.
The violating Other turns out to be a veritable cornucopia! Both state and non-state agents of terror prefer to unleash violence under auspices of amorphous anonymity. And as recent history has shown, much of the experience of terror is produced by forms of ‘structural coupling’ (to evoke a term integral to autopoesis theory) between state and non-state actors. All to often it turns out that today’s terrorist leaders are yesterday’s trained and privileged protégés of the North state security establishments.
Relatively autonomous agents of terror yield to no easy ideal type construction. Unfortunately, there is no known genre that essays this form of understanding. Fragments of under-standing remain occasionally provided, as for example by Margaret Thatcher’s notorious denunciation (which even till today she refuses to acknowledge as morally perverse) of Nelson Mandela as a ‘terrorist’. On such register, the violating self is one that takes the logics and languages of human rights values, standards, and norms seriously (the Original Sin that renders Euroamerican domination unstable at its very core).
The distinction between terrorism as a form of violent political engagement and as a criminal act defies sensible narrative enterprise. One has just to read the accounts of various debates concerning the definition of terrorism in the United Nations archive to get a sense of this enormous difficulty. South national governments, immensely repressive of authentic insurgency at home, are quick to denounce abroad the points of discursive closure by Euroamerican constructions of ‘terrorism’.
This moral schizophrenia is ethically understandable at one moment (for example in the context of Palestine) and incomprehensible at others (for example, in relation to autonomy movements such as in Spain, Northern Ireland, Sri Lanka, Nepal and Kashmir). And the most recent tendency to label, for example, certain NGO patterns of global citizen action as terrorist (for example, the Green-peace and a motley of violent protests against contemporary forms of global capitalism from Seattle onwards) enormously complicates any form of rational and reasonable understanding of the violent Other.
Global (read Euroamerican in the main) social construction of the moral authenticity of the violating ‘Other’ network self is rendered legible by the play or dramaturgy of hegemonic global power. This turns out an extremely complex and contradictory realm in situations that overwrite explicit denial by ‘named’ violating Other into acts of affirmation/ascription of collective authorship of mass international terrorism. The issue here, beyond the play of power, stands defined as a Derridean undecidable aporia,13 or a Lyotardian differend speaking to us of the incommensurability of discourses14 as between ‘ terrorism’ and its Other – the defence of well ordered societies but at its very deepening, by way of the very failure in thinking.15
The non-post/pre-post modernist state or (global middle class constituted) civil society actors may think that the issue of identification is really not at all undecidable or not that undecidable. They think typically in the language of causation; put another way, the issue relates to ways of identification of agency for acts of ‘mass international terrorism’, even in face of overt denial/contestation by the named agents. Often enough, it is the power of labelling (as criminologist theory folk know well enough) that determines crime and punishment, ways that Michel Foucault memorably archives for us now as modes of production of juridical truth.16
In responding to the actual events of terrorism, strategic decision-makers need, of course, to respond to what (in an Aristotelian sense) constitute ‘immediate’ rather than the ‘efficient’ cause, whereas ‘justifications’ for terrorist performances highlight the ‘efficient’ or the ‘root’ cause. Global rhetoric in the ‘war’ against mass international terrorism needs to straddle this dialectic of causation; ‘walking with two legs’ is, of course, the current rhetorical answer.
That is, this ‘war’ is both immediately and futuristically both a ‘war’ against the immediate and structural causation of mass international terrorism, as revealed/exposed by the recent Davos/New York Global Forum discourse and the British Prime Minister’s Tony Blair’s current intrepid excursus in terms of acts of reading mass impoverishment in sub-Saharan Africa, and elsewhere in this unnamed/unnameable wide world, as a permanent invitation to the North to do at least some indeterminate something that prevents the translation/spillover of acts of contemporary global injustice into acts of mass terrorism directed against the North. This sort of discourse, however instrumental, has the merit of foregrounding the hitherto ineffectively recognised tasks of global justice, at the very least of the removal of the North hegemonic causes of structural global inequity.
Amidst all this, we need to confront the rather obstinate problem of moral mistake/error. Logically, we must concede that those who somehow ‘justify’ mass international terrorism and those who inveigh and act against it may also, perhaps equally, be variously morally mistaken in their grasp. The contemporary networks of terror urging jihad against the United States, no matter how described, may (as much of the ‘enlightened’ global opinion thinks it is) be morally mistaken, at least on the ground that peoples’ sufferings are not wholly or exhaustively caused by ‘imperialism’, and that on a deeper analysis may as well be, immediately and efficiently, caused by their own various orders of the Corrupt Sovereign, no matter how aided and abetted by global imperialism.17
By the same token, we ought to concede that the extraordinary mobilization of the globalizing middle classes throughout the world following 9/11 currently constructs mass international terrorism as essentially monocausal. Everyone has to pursue one embodiment (Bin Laden) and one ‘network’ (Al Qaeda) as the single cause. Of necessity, post 9/11 diplomatic and strategic thinking tends, by variation of the theme, to pluralize the embodiment (now it is also Saddam Hussein) and the ‘network’ (constantly identifying/inventing associated groups.) This pluralization is an invention whose mother is the White House and whose midwife the Pentagon. (To name the exigent Fox Television dedicated channel ‘War Against Terror’ as the Godmother would indeed be an act of descriptive desecration). It is a fake pluralism that may only transiently cobble together a ‘global’ coalition against terror.
Agenuinely pluralistic account, now in emergence, is at last leading towards a grudging, though incipient, recognition that imposed mass impoverishment and underdevelopment ought to qualify as the structural causes of mass international terrorism. We need to discount at the threshold the opportunistic rhetoric18 that obstructs serious minded analysis of terrorism as a ‘violent form of political engagement.’ A recent empirical study maintains that there is little reason to be optimistic that a reduction in poverty or increase in educational attainment will lead to a meaningful reduction in the amount of terrorism, without other changes based on data that suggests that ‘terrorists who threaten economically developed countries will disproportionately be drawn from the relatively well-off and highly educated.’19
From this it does not follow, at least on my reading, that combined and uneven development does not have a causal role. Rather, the weight of analysis de-privileges market and culture based20 superficial understandings, fully suggesting an alternative that terrorism is better viewed as ‘ a response to political conditions and long standing feelings (either perceived or real) of indignity and frustration that have little to do with economics.’
The Harbouring Self: 9/11 has produced a new form of state hitherto a stranger to international law: an entity that may be declared when possible by unison of Euroamerican society of states, or otherwise unilaterally designated by the sole superpower, as a ‘harbouring’ state. Once so declared, it ceases to have attributes defining the equality of states doctrine under positive international law. It becomes liable to description as a ‘rouge’ or ‘outlaw’ state. A state suspected of ‘harbouring’ agents and forces/networks of mass international terrorism, then exists in the ‘state of nature’, liable to the solitary superpower sponsored violent rebirthing as a member of the community of ‘well-ordered’ state/society/peoples (one owes these multiple ambiguities to John Rawls’ conceptualization of the law of the peoples.)
Given the fact, and the potential of ‘networks’ of terror that decentralize and disengage hierarchies in execution, even planning, of such acts, the possibilities, even probabilities, that one may be mistaken even in the identification of immediate agents/executors of mass international terrorism obstinately re-emerge. The question has arisen, even within the epistemic communities of strategic decision-makers, as to how may bright lines in ‘hot pursuit’ be drawn in the identification of networks of terror.
Having named the Taliban ruled Afghanistan a site of mass international terrorism, are they after months of massive and rather ferocious air strikes against its territory and peoples, entitled (and if so with what justifications) then to name territories of states B, C, D, (in the current situation, the Philippines, Malaysia, the Sudan, Iraq and now even Iran) and other states as zones of hostile ‘counter terrorist’ operations requiring massive, and when ‘necessary’ unilateral American military action? If the insignia/marker of source of ‘terrorism’ remains constituted by the manufacture, and potentiality of use of weapons of mass destruction, where, indeed, may one ethically device the North/South ‘bright lines’ in this sphere? Surely, contemporary Iraq stands fully designated as having the potential of undermining the ‘free and civilized world’.
The dominant discourse understandably, but not justifiably, does not permit even a threshold inter-locution of a thousand times more powerful arsenal of weapons of mass destruction commanded by the Permanent Members of the Security Council! Not wholly incidentally, we may ask whether these practices of ‘naming’/attributing the domicile, whether of choice or necessity, to the South nations mask the emergence of new forms of neo-colonization in a so-called globalizing world.
This current discourse of state epistemic communities unfortunately amounts to a revival of the highly, and rightly, discredited ‘domino theory’ used to justify the American intervention in the Vietnam War, with equally, perhaps more, disastrous impacts on the conduct of world politics. Put another way, is the whole South world, all over again, to be made into a battleground against mass terrorism, on a notion of causation that declines to draw sensible limits and boundaries in the ‘war’ against terrorism?
This newly-emergent global, network international law, at the end of the cruel current day, essentialises the identities of the violating and violated Self in a neo-Rawlsian discourse, in which societies of well-ordered peoples remain declared to be in permanent hostility against the ‘outlaw’ peoples.21 To belong to the global society of well-ordered peoples, states have now a duty to ‘stand up and be counted.’ States that fail to do so remain inevitably designated as ‘helping’ and ‘harbouring’ terrorism and in turn thus invite redescription as being ‘outlaw societies’.
However, ‘helping’ and ‘harbouring’ regimes stand in the contemporary discourse as ineluctably Eurocentrically demarcated; geophysically concentrated bases of international mass terrorism warrant full-scale acts of war; dispersed networks of support for terror (in the international finance and banking markets, for example) need to be handled with gentle, even gracious, persuasion. South state failures in ‘curbing’ terrorism invite belligerency; North state failures necessitate merely reflexive state policy; the former constitutes the realm of punishment, the latter, at best or worst, the realm of covert discipline.22
This inaugural 9/11 discourse marks the production of new contexts for construction of politics of international cruelty, directed against ‘causally’/casually identified agents/agencies of terror, and concerted regimes of ‘global’ response. Non-state epistemic communities (global solidary networks of human rights and new social movement communities) need to recover their initial innocence/incoherence in the wake of 9/11, and its aftermath, if they are to remain in the ‘business’ (for, against all nostalgia, everything is now captured in the images of market/business!) of speaking to the possibilities of just human futures.
Towards a New Order of Inter-state Consensual Obligations: This ‘network’ conception of the new law of nations in the making incarnates a new version of sovereign equality of states; that value is posited as being under threat, and a common duty of all states is now said to emerge; a terrorist attack against a hegemonic superpower is represented as the very epitome of endangerment of the very basis of contemporary international law and even human ‘civilization’, most poignantly articulated by the rhetoric of Tony Blair. New epistemologies, new ‘final vocabularies’, in the ironic Richard Rorty genre of pragmatic sense and sensibility,23 faute de mieux, are now in the making, in ways that subserve as well as threaten the rolled-up values of the doctrine of sovereign equality of states, human rights and much else besides.
This new order of concrete ‘consensual’ duties seems to make otiose distinctions between the First, Second (or what remains of it) and the Third World, the latter always up, as it were, for ‘grabs’ by the patterns of one superpower hegemony.24 The ‘Third World’ hermeneutic horizons of understanding of production of global terror need now to be structurally adjusted in terms of the preferred hegemonic Euroamerican construction.
The ‘war against terror’ is based on carefully cultivated/manufactured genesis amnesia: discourses concerning the immediate/proximate, as well as final, causes of terrorism remain exposed to the instant indictment of being globally ‘politically incorrect’. Distinctions are being reworked (already before 9/11, at the dialogical site of the United Nations Durban Conference) between historic forms of ‘mass international terrorism’ (slavery, apartheid, racism, colonization, and the Cold War) and its new forms.
The only history, on the presently constituted hegemonic notions of terrorism, relevant for global action is the history with a specific date: 11 September 2001.
A new order of politics of global memory now stands swiftly inaugurated. But struggles for visions of a more egalitarian and cosmopolitan world order tend to resist, for weal or woe, this ‘new historicism’ in the construction of international mass terrorism.
And this genesis amnesia marks an incipient distinction between performances of ‘mass international terrorism’ and geopolitically localized transborder terrorism; the latter, at least for the time being, remain subject to differential constructions of international legality/illegality. The ontological robustness of Realpolitik is already mutating this distinction, for example, by the ‘post’/Afghanistan extension of search and destroy missions in the Philippines or Malaysia.25
This celebration of war against terrorism must be read as directed to make the North less vulnerable than the South from terrorism because histories and narratives of terrorism have deeper social and political origins than the scripts of 9/11, and its aftermath, may suggest. The current ‘war against terrorism’ ill-serves its stated purposes and pursuits when it reads into the attack on the World Trade Centre and the Pentagon the entire history of the origins of the post Second World War and post Cold War terrorism. There are indeed other histories of ‘terrorism’ and ‘counter terrorism’.
Towards a New Global Multiculturalism? Contemporary forms of mobilization of the newly installed discourse on international terrorism entails deference to forms of multiculturalisms that serve, primarily, the free flow of global capital. The first is symbolized in the archetypal figure of the British prime minister taking time off to read the Holy Koran, so as to authoritatively proclaim that an ‘Islamic terrorist’ constitutes an impious oxymoron! Few will disagree.
But the delinking of ethnicities and civilizations from constructions of ‘mass international terrorism’ simultaneously adds value to logics and languages of multiculturalisms, pluralisms, contemporary human rights as well as internal state security programmes. The collective, though conflicted, interests of global capital in the ‘war against global terrorism’ require no elaboration, given its manifest power to disrupt contemporary economic globalization processes.
This ‘war’ is then posited as historically necessary. But it is difficult even in the moment of current vicissitude to ignore the relation between forms of multiculturalism and global capitalism; Zizeck guides us to the insight that: ‘The relationship between traditionalist imperial colonialism and global capitalist self-colonization is exactly the same as the relationship between western cultural imperialism and multiculturalism.’
Furthermore, the multiculturalist respect for the Other’s specificity is the very form of constructing one’s superiority such that practices of multiculturalism may signify ‘a disavowed, self-referential form of racism, racism with a distance…’26
For these reasons the diplomacy about this ‘war’ is indeed agonizing, and not just for its principal exponents: multiculturalism is the civic religion of globalization and the war diplomacy (as the hapless Italian prime minister, vaunting Judeao-Christian traditions as more hospitable to ‘democracy’, ‘rule of law’, and ‘good governance’ soon, unconvincingly, discovered) may not explicitly breach the conduct of Euroamerican terms of ‘racism at distance’.
Operation Infinite Justice/ Enduring Freedom is a complex, even extraordinary, register of representations. Extraordinary because it stands represented not as a war against people; nor as a war against a community of faith; it is rather a ‘war’ of Reformation, one in which the world’s leading religious traditions have secularly to be interpreted as forbidding the use of terror to make a human rights or global justice statement. How is this to be rendered sensible to deeply pious peoples who represent postmodern ‘secularists’ as ‘Satanic’ (as representing ‘Westoxification’) poses profound problems for the construction of the preferred models of global multiculturalisms.
The Structural Adjustment of the Doctrines of Just War: All this prepares the way for the enunciation of a new doctrine of ‘just war’ in the halcyon days of globalization. Terrorist acts stand represented as a strike at the heart of globalization, conceived as the ‘free flow of space’; ‘terrorism’ disarrays the global civilization brought about by post-Fordist flexible accumulation, whereby global capital creates and sustains wholly new patterns of international division of labour,27 and undermines the much vaunted relationship between development and freedom.28 People, rightly or wrongly, persuaded to think otherwise, remain denied of any authentic voice.
But the pre-modern (though for that reason no less crucial) discursive traditions of ‘just’ war, in its theological and secular political incarnations, embrace not only the pursuit of just objectives but also of just means to achieve these.29 On a ‘good faith’ reading of it, the current discourse of the politics of intergovernmental desires seems, however uneasily, to straddle both the dimensions. Hi tech depersonalization of the modes and means of delivery of mass violence/violation enact a divorce between just objectives and just means to pursue these. And of necessity the narratives of just objectives and just means, in this radically postmodern world, provide the mood, method, and message of ecstatic nihilism.30
Globalization and Terrorism: 9/11, and its unfolding aftermath, provides a testing ground for the truths of new fangled conceptions of contemporary globalization. These must, at the one and same time, perpetuate war against terrorism and condone terrorist-like predation of contemporary economic globalization predicated on an increasing movement of people, ideas, capital, and objects within and between places.’31
Put another way, new forms of production of global social cooperation are now in the making that differentiate acts, events, and performances of mass international terrorism from actions and consequences of behaviour of global capital possessed of equivalent effects not, however, permitting description in terms of mass terrorism.
It is on this register that subaltern perspectives concerning the construction of the notion of terror remain crucial. By this I designate the isomorphic impact in terms of the experience of trauma, humiliation, and suffering produced by globalization decisions and manifestly ‘terrorist’ ones.
Actually existing human begins who bear the full brunt of devastation, often intergenerational of their life-projects assimilate globalization decisions with the terrorist ones. But this is a feat frowned upon by the dominant discourse; the hegemonic epistemic communities construct canons that forbid the subaltern articulation of the diaspora of terrorism. This is a large narrative theme. I can, in the following remarks, only silhouette it.
First, the anarchy of hyper-reality of international banking and financial markets, vigorously propounded by the gurus of globalization as a necessary aspect of deregulation, carries life, measured in terms of contemporary human rights values, standards, and norms, threatening consequences and impacts for the global impoverished, more pervasive and enduring than the deeply unfortunate mayhem now iconized by 9/11.
Second, the current Enron/post-Enron corporate ‘creative accounting’/corporate governance perfidies have assumed real life Bhopal/Ogoniland type impacts at least comparable, in real human/social suffering terms, to the 9/11 tragedy.
Third, global cooperation directed to combat global networks of criminality via the fiscal and monetary warfare against organized global criminality now assumes a welcome salience. But this current programschrift of global action stands structurally constrained by instant networks of international transactions, the Tom Wolfe Bonfire of Vanities genre, in stocks, bonds and currencies32 that devastate national governance capabilities directed to a semblance of governance and accountability.
Fourth, prospects of effective regulation of world arms trade (nearly monopolized by the five permanent members of the Security Council) that eventually supply the most crucial hardware for ‘terrorism’ elude the current discourse concerning war against terror. Attempts at regulation of bio warfare lie still congealed in the juridical life histories of war veterans of the Agent Orange and Operation Desert Storm generation. Even today, North state constructed discourses concerning ‘mass international terrorism’ do not speak to the failed treaty regimes directed at prohibition of biological and chemical warfare.
The re-nuclearization of the world, signalled by the United States unilateral denunciation of the Anti-Ballistic Missile Treaty speaks with different voices in this ‘war’ against international terrorism, to the scary prospect of nuclear self-help by non-state groups/formations. Understanding globalization in the 21st century entails a grasp of the state as (in terms of Deluze and Guttari) ‘the nomadic war machine.’33 It will then disserve its manifest intent by ignoring the linkages between organized and illicit arms traffic.
Fifth, the dominant discourse concerning ‘war against terrorism’ does not confront world capitalist orderings in terms of combatting corruption and bribery at home and abroad. A world safe from ‘mass international terrorism’ will also signify a fashioning of world order that seriously attends to radical evil in defence deals, armaments traffic, mobilization of narcotic drugs cartels, money laundering, dumping of toxic (including nuclear) products and wastes in the South, regardless of security, foreign policy, ‘development’, and ‘good governance’ objectives, what Manuel Castells describes acutely, though not in these precise terms, as ‘the global criminal economy.’34 It is as yet not clear how all this, the other war (some may even name it as the ‘real’ war) against networks of global terror, may be accomplished within the commanding heights of the theologies of neo-liberalism.
Sixth, a global coalition against ‘mass international terrorism’ makes historic sense only in terms of redemocratization of Euroamerican ways of doing national politics. Notions of terrorism invite de-/re-construction in terms of ‘organized irresponsibility’ and ‘organized impunity’ (to invoke Ulrich Beck’s favourite phrase regime35) of the multifarious agents of contemporary globalization led pre-eminently by the transnational corporations.
Although not congenial to current discourse, those traumatized vectors of violated humanity from Bhopal to Ogoniland and beyond construct structuration of ‘mass international terrorism’ in ways profoundly different from significations currently under construction. Should they be altogether morally mistaken in this, the new pedagogies of freedom that this ‘war’ ushers in and symbolizes ought be directed at least to explain to them the ethical error of their ways of thought.
Conceptions of Global Justice: The current carnivalistic production of the new, ‘network’ international law discursivity brings us to a new stage of ‘rhetoric and rage’ in the production of contemporary international law.36
It is ‘new’ at least in the sense that it summons distinctive possibilities of nascent articulations of the possibility of a theory of global justice. Unsurprisingly, contemporary globalization has marginalized this discourse. Insofar as it has attended to it, the result (wholly unintended at least in the case of gentle, good and generous persona of John Rawls) has been the distinction between ‘well-ordered societies’ and its Other, the ‘outlaw societies’ with its attendant ethical entailments37 and the severely, and lean and mean, constructed Rawlsian ‘duties of assistance’ owed by the well-ordered peoples to the ‘less’ well-ordered ones.38
This nascent discourse on global justice awaits Foucaldian labours of deconstruction. For example, it is not clear at all whether in the Second Original Position (necessary to construct a theory of justice for inter-state relations or more importantly a Rawlsian Law of Peoples) rational and reasonable contracting parties/peoples may subscribe to the tenets of the current ‘war’ against ‘mass international terrorism’. It is also not abundantly self-evident why co-nationals (in the current scenario Euroamerican peoples/individual persons) may be said to owe morally altruistic duties of comprehensive assistance to non-nationals.39
But the ‘war’ against terrorism is simply inconceivable, even ethically insensible, outside/without an articulation of approaches to global justice that impose, performances/performatives of morally altruistic duties flowing from co-nationals to non-national peoples. This, in turn, invites a whole new difficult discourse concerning ‘morals by agreement’.40
All this summons labours of reflexivity by, at the very least, the South human rights/social movements/communities, not as yet in sight even in a bare outline. This, not the ontological presence of the expanding ‘war’ against terrorism, constitutes the current global misfortune.
Equally urgent, and related, remains the task of revisiting the distinction between misfortune and injustice, memorably enunciated by Judith Shklar.41 The events of September 11 were not construed as a ‘misfortune’ but as ‘injustice’. Proactive public policy is the response to situations of injustice; in contrast its translation into the languages of misfortune entails reactive public policy response. The range of collective public and social action, and universes of empathy and solidarity, expand and shrink, as Shklar demonstrates, depending on the way bright lines are drawn between the two.
For example, the World Food Summit Declaration and Programme of Action, instituting a right to food security systems, promises concerted global action to halve starvation and malnutrition of 800 million people in the next fifteen years. This discourse does not quite characterize the situation of starving millions across the globe as one of injustice but perceives it as a misfortune to be addressed with ‘all deliberate speed’.
Much the same may be said of the Istanbul Summit declaration on the human right to shelter and housing. The United Nations Millennium Declaration, in a not dissimilar rhetoric, now proposes to reduce global human immiseration by 2015, measured by ‘the proportion of the world’s peoples whose income is less than a $1 a day,’ those who ‘suffer from hunger,’ and those ‘who are unable to reach, or afford, safe drinking water.’42
These ‘noble’ rhetoric of ‘progressive realization’ languages of the regimes of international economic, social and cultural rights harbour cognate translations. Bhopal and Ogoniland represent, in the dominant discourse, situations of misfortune, not injustice. Misfortunes (thus so far narrated) invite glacial pace of global diplomacy; injustice summons the ‘war against terrorism’.
The issue is not whether the distinction we must draw between injustice and misfortune is unavoidable in a non-ideal world; the issue is one of acts and circumstances of justice of drawing the distinctions, the framing of the grammars of justice entailed in the allocation of critical events on to the one or the other register, the framing of geographies of injustice and misfortune.
If there exists at all the possibility of a subaltern voice, it lies in enunciation of Third World perspective on global justice, that helps us adjudge the ethics of the new discursivity of a global war against terrorism, currently named ‘Operation Infinite Justice’/‘Enduring Freedom’.
The vision of a world emancipated from catastrophic practices of politics of cruelty, acts of terror by state as well as non-state actors, indeed, symbolizes a resurgent space for the politics of human hope. The task, however, lies in preventing it from becoming the Christian 21st century’s humankind’s early but perenduring worst hazard.
* Modified version. The original article appears in 1 Third World International Law Journal, 2002.
** This essay has been long in the making. Initially presented to the University of Goa Political Science Department Seminar (12 September 2001) and at a seminar at Delhi School of Economics, Department of Sociology (14 September 2001), it now stands based on a Keynote Address, Osgoode Hall Law School Conference on Third World and International Order: Law, Politics and Globalization (13 October 2001). I acknowledge the gracious invitations by Peter de Souza (Goa), Deepak Mehta (Delhi), and Obiora Okafor and Karin Mickelson (Osgoode Conference.) The present version further develops the keynote address, and my contribution to Warwick Electronic Journal on Globalization, Development, and Justice, 2002.
1. See Martin Heidegger, Nietzsche: Volumes Three and Four 207(1991, New York, Harper Collins; David Farrell Krell ed.) (Emphasis in original)
2. See, for this distinction, Upendra Baxi, The Future of Human Rights 13-14,42-44, 98-100,111-12 (2002, Delhi, Oxford University Press)
3. See, for these fecund notions, Julius Stone, Human Law and Human Justice (1996; Sydney, Maitland Publication; reprinted 1999, New Delhi, Universal Book Co.)
4. See, e.g., John Rawls, The Law of Peoples (1999; Cambridge, Harvard University Press.) But see Noam Chomsky, ‘Terror as a Just Response,’ (2 July 2002; www.zent.org, visited 28 August 2002) and Richard Falk, ‘Defining a Just War,’ and ‘Ends and Means,’ The Nation, 29 October and 24 December 2001.
5. Jean François Lyotard, Peregrination: Law, Form, Event 65 (1988, New York, Columbia University Press).
6. See, for a recent review, Alex Obote-Odora, ‘Defining International Terrorism,’ 6 Murdoch University Electronic Journal of International Law http://www.murdoch.edu.au/elaw/ issues/v6n1/obote-odora61_text.html(1999,) visited 9 February 2002).
7. We must qualify the description ‘instant customary law’ with reference to two important conventions: The International Convention for the Suppression of Terrorist Bombings, 1997, which came into force on 23 May 2001 (with 25 parties, out of 58 signatories, the latter including the United States) and the 1999 Convention for the Suppression of Financing Terrorism (not yet in force.) In a sense, the current near universal agreement concerning the description of the attack on the Global City (New York) and on Pentagon and measures to suppress financial resources for terrorist networks may well be said to mark the emergence of an ‘incipiently’ treaty-based custom.
8. See, for the elaboration of this notion. Manuel Castells, The Rise of Network Society 376-428 (1996; Oxford, Blackwell); and Michael Hardt and Antonio Negri, Empire (2000; Harvard, Harvard University Press.) The latter observe, with near prophetic insight, that ‘what we are witnessing today is a process of the material constitution of the planetary order, the consolidation of the administrative machine, and the production of new hierarchies of command over global space’ (p. 19.) They presciently reach the heart of the current situation when they describe the ‘juridical concept’ of the Empire as comprising the elucidation of ‘a right that is affirmed in the construction of a new order that envelops the entire space of what it considers civilization, a boundless, universal space; and… a notion of right that encompasses all time within its ethical foundation. Empire exhausts historical time, suspends history, and summons the past and future within its own ethical order. In other words, Empire presents its order as permanent, eternal, and necessary’ (p. 11.) See also Note 12, infra, for the ‘mirror of production’ of a single and singular juridical space.
9. A term first used by Donald Horowitz, Ethnic Groups in Conflict (1985: Berkeley, University of California Press).
10. See Salman Rushdie, Note 17, infra.
11. See Maxwell O. Chinbundu, ‘Globalizing the Rule of Law: Some Thoughts at and on the Periphery,’ 7 Indiana Journal of Globalization 70 (1999).
12. See, generally, Upendra Baxi, Note 2, supra.
In the post- 9/11 context, anti-terrorist laws and measures have materialized worldwide; indeed there seems to be a competitive scramble to perform ‘better’. Already, in many parts of the South (but not only there) any dissent from or protest against their Draconian nature, hitherto unthinkable in peacetime, laws and measures that enforce the plenitude of jurisdiction of suspicion, is regarded as anti-national, being anti-global. Globalization of internal and transnational security, law and order measures, invite labours of a ‘global ethnography’, a la the exemplary genre of Global Ethnography: Forces, Connections, and Imaginations in a Postmodern World (2000; Berkeley, University of California Press, Michael Burawoy et. al. eds).
The current global wave of anti-terrorism laws and measures include: long preventive/pre-trial detention, secret, summary or military tribunals, abbreviated due process, and severe mandatory sentences, including death penalty. The ‘sinister overreach’ of the ‘anti terrorism state machines’ has now reached a point when even the European Union is contemplating the Union wide arrest warrant – a ‘mighty weapon… by no means confined to the terrorist emergency that has given it life’ but one which will extend to inchoate ‘crimes’ such as ‘racism’, ‘xenophobia’ and ‘swindling’; as proposed, this would also routinely extend to ‘every crime carrying a sentence of twelve months and more’: see Hugo Young, ‘ European Justice Demands the Glory of British Liberty,’ The Guardian, 5 February 2002, p. 18.
See also, John Nichols, ‘The Patriot (re) Act: Congress Surrenders our Cherished Freedoms in a Single Trip to the Altar of Fear,’ The Nation, 29 September 2001; Adam Tomkins, ‘Legislating Against Terror :The Anti Terrorism, Crime, and Security Act, 2001’ Public Law 205 (2002); Jonathan L. Black-Branch, ‘Powers of Detention of Suspected International Terrorists Under the United Kingdom Antiterrorism, Crime and Security Act: Dismantling the Cornerstone of A Civil Society,’ 2 E. L. Rev. 202, 27 Supp (Human Rights Survey) 19 (2002); Amnesty International Report 2002 (London, Amnesty International Publications).
In sum, it is this ‘sinister overreach’ of overall security response that poses a grave challenge to the hitherto not so fragile febrile vitality and resilience of human rights cultures worldwide. Mary Robinson, the United Nations High Commissioner for Human Rights, has highlighted the challenges thus: ‘No one should underestimate the difficulties of dealing with terrorism under the rule of law. As a citizen of Ireland, I certainly do not. The international human rights and humanitarian standards allow for flexibility in emergencies but the standards still apply and must be upheld… States have painstakingly built up the international standards. In these difficult times for human rights we should be seeing a strong affirmation of these standards. If we do not, we are creating a dangerous precedent that will surely come to haunt us.’
See http://www.independent.co.uk\story.jsp? story=115264
(I thank Professor Burns Weston for drawing my attention to this important statement).
13. See the illuminating discussion on the ‘political limits of logic and the promise of democracy’ in Richard Beardsworth, Derrida and The Political 46-97 (1996; London, Routledge).
14. Jean Francois Lyotard, The Differend: Phrases in Dispute (1998; Minneapolis, University of Minnesota Press).
15. See Note 5 supra. Lyotard frames the issue thus: ‘Was one able to think, after all these failures [of capitalist democracy and socialism], without recognizing in them, first of all, the failure of a way of thinking?’
16. Michel Foucault, The Essential Works of Michel Foucault: Volume 3 Power (2000, New York, New Press; James D. Faubion ed.; Paul Rainbow, Series ed.).
17. See, for example, Salman Rushdie, ‘Anti-Americanism has Taken the World by Storm,’ The Guardian, 6 February 2002, p. 18.
18. A rhetoric that, as already noted in the text, thrives on a sudden re-discovery of mass impoverishment in Africa, demonstrated somewhat by Tony Blair’s attempts to slate this as a sovereign concern for G7 or the World Bank’s constant refrain concerning poverty alleviation.
19. Alan B. Kruger and Jilata Maleckora, ‘Education, Poverty, Political Violence, and Terrorism’ (July 2002; Cambridge, Mass., New Working Paper Series, National Bureau of Economic Research: www.nber.org/papers/W9074 (visited August 30, 2002.)
20. See, on this register, the interesting comparative analysis by Pippa Norris and Ronald Inglehart, ‘Islam and The West: Testing the Clash of Civilization Thesis,’ John F. Kennedy School of Government, Harvard University, Faculty Research Working Paper Series: http://ssrn.com/abstract- id=316506 (visited August 30, 2002.) They maintain that the ‘clash of civilizations’ has ‘triggered clash of scholarship’ among those seeking to understand the causes and consequences of ethnic religious conflict.’ More pertinent is their thesis that the ‘central values separating Islam and the West revolve far more centrally around Eros rather than Demos.’
21. John Rawls, Note 4 supra. The current situation was not quite anticipated by that gifted philosopher but his insistence that peoples of well-ordered societies have a common obligation to use force, when persuasion fails, does provide justificatory framework for the global coalition against ‘mass international terrorism’.
22. It stands now fully revealed, for example, that Belgium provided a safe haven through its lax immigration and passport legislation to many agents of potential ‘terror’. It however may not be subjected to the same order of global sanctions as the South ‘harbouring’ states! A new form of neo-colonialism is surely in place and at work here.
23. Richard Rorty, Contingency, Irony, and Solidarity (1989; Cambridge, Cambridge University Press).
24. See, Lea Brilmayer, American Hegemony: Political Morality in a One-Superpower World (1994; New Haven, Yale University Press), developing the thematic of a ‘liberal theory of international hegemony’ (p. 176) in ways that may justify, with all attendant ethical/ normative complexity and contradiction, ‘hegemonic intervention’ (pp. 153-66).
25. The operational means thus adopted revive some questions we noted in an earlier section of this essay.
26. Slavoj Zizeck, The Ticklish Subject: the Absent Centre of Political Ontology 216 (1999; London, Verso).
27. See, Malcolm Waters, Globalization 65-96 (1995; London, Routledge); Scott Lash and John Urry, The Economies of Sign and Space (1994; London, Sage).
28. Amartya Sen, Development as Freedom (1999; Oxford, Oxford University Press).
29. ‘The traditional concept of just war involves the banalization of war and the celebration of it as an ethical instrument, both of which were ideas that modern political thought and international community of nation states had resolutely refused. The two characteristics have reappeared in our postmodern world; on the one hand, war is reduced to police action, and on the other, the new power that can legitimately exercise ethical functions through war is sacralized,’ Michel Hardt and Antonio Negri, Note 8, supra.
30. Because nihilism in the Nietzschean sense marks a process of the devaluation of values and at the same time to install new values in their place, its ecstatic form readily sacrifices the doctrine of sovereign equality of states and of the United Nations Charter’s deftly textured probation of unilateral use of force and aggression. In their place is sought to be instituted the expedient and capacious will of the White House as the grundnorm of international law.
I do not address here the important issues of just means; this entails a close examination, than this essay warrants, of the international law established standards of reasonableness and proportionality of the United States exercise of military might in the current, still ongoing, operations. Nor can I address here the ‘justificatory’ strategies instrumental to the elaboration of the ‘just means’, except by way of saying, bereft of closer analyses, that a staggeringly vast onus probandi lies, under the extant normative international law regime, heavily on the United States, and the ‘allied’, still sustained, use of military force.
Post-facto justifications of massive use of force, those that invoke ‘good governance’ (in terms of return to the ‘rule of law’, ‘democracy’, and a revival of the motto ‘Women’s’ Rights are Human Rights’ need to be deciphered, an admittedly complex and contradictory exercise, in the context of the unmaking during the very last phase of the Cold War) of contemporary Afghan polity and society. I do not essay this task here; nor do I address the current politics of global aid and assistance in terms of the globalized reconstruction of the constituent power, by which I signify the prowess of global economic constitutionalism, pitted against the ‘million mutinies’ that, for weal or woe, lie ahead, not just locally but globally. See, Antonio Negri, Insurgencies: Constituent Power and Modern State (1999; Minneapolis, University of Minnesota Press; Muarizia Boscagli, Trans.)
31. Eve Dorian Smith, ‘Structural Inequalities in the Global System,’ 34 Law and Society Rev. 809, at 810 (2000.)
32. See, David Harvey, The Condition of Postmodernity 161, 293-95 (Oxford, Black-well.) Zygmunt Bauman, in Globalization: The Human Consequences, pp. 66-67 (1998; Cambridge, Polity) recalls for us the estimate of Rene Passant, who calculates that ‘purely speculative inter-currency transactions reach a total volume of $1,300 billion a day – fifty times greater than the volume of commercial exchanges and almost equal to the total of $1500 billion to which all the reserves of all the ‘national banks’ of the world amount… ‘No state… can therefore resist for more than a few days the speculative pressures of the "market".’
33. The state, as a ‘diffuse and polymorphous war machine’ is a ‘nomos very different from the ‘law’, which invests ‘the war machine, as a nomad, the abolitionist dream and reality.’ Giles Deluze and Felix Guttari, A Thousand Plateaus: Capitalism and Schizophrenia at 360, 385 (1987; Minneapolis; The University of Minnesota Press).
34. See his The End of Millennium, pp. 166-205 (1998; Oxford, Blackwell).
35. Ulrich Beck, The Risk Society (1992; London, Sage.) See also, Upendra Baxi, Mass Torts, Multinational Enterprise Liability, and Private International Law 276 Receuil des Cours 305-423 (2000; The Hague, Martinus Nijhoff).
36. Karin Mickelson, ‘Rhetoric and Rage: Third World Voices in International Law,’ 16 Wisc. Int’l L.J. 353 (1998).
37. See Notes 39, 40, infra.
38. See, Charles Jones, Global Justice: Defending Cosmopolitanism (1999; Oxford, Oxford University Press); Nomos XL1: Global Justice (1999; New York, New York University Press; Ian Shapiro and Lea Brilmayer eds.).
39. Of course, a more generous version of ‘difference principle’ at the level of global justice is possible: see, for example, Charles Beitz, Political Theory and International Relations (1979; Princeton, Princeton University Press) and Thomas W. Pogge, Realizing Rawls (1989, Ithaca, Cornell University Press.) I have articulated my difficulties with genre of global justice theorizing in ‘The Failure of Deliberative Democracy and Global Justice’, Democracy Unrealized: Documenta 11_Platform 1, 113 (2002, Kassel, Hatje Cantz Publishers,; Okwui Enwezor et. al. eds.).
40. See, David Gauthier, Moral Agreement (1986; Oxford, Oxford University Press.)
But see, Thomas Donaldson, The Ethics of International Business 155-163 (1989; Oxford, Oxford University Press).
41. In her Stross Lecture, Faces of Injustice (1990; New Haven, Yale University Press).
42. See for the full text: http://www.un.org (Un Doc.A/55/4.2, September 2000).