6 There is neither, in Western nor Chinese literature, any specific literature on Marxist approaches to judicial settlement of disputes under international law (Judicial Settlement of International Disputes). However, there is a very hot debate about whether international law has a part to play in resolving disputes among States. Miéville says that the relations are always completely coercive, constantly readjusting as the balance of forces changes. As Carty says in his review, Miéville
rejects the idea that law is an ideological cloak for class or socioeconomic interest, which could be overthrown by a socioeconomic revolution … Assuming that legal arguments are resolved only by force, the issue is not whether the state is legally obliged to observe international law. The state is simply what it is. Its decisions constitute its actions … Some states are able to actualize a particular interpretation of reality and make it stick in the world (2008, at 122–25; Miéville, 2004, 284–85).
So Miéville is absolutely not a denier of international law as a phenomenon. It is all pervasive in international relations, as what the strongest State or States can make stick.
7 Others contend that Marxist theory, particularly of Lenin and Pashukanis, says there is always some space for legal resolution of disputes. While these theorists give no concrete examples to support their case in contemporary international relations, conceptually they are conceding a necessary place for adjudication of international disputes. Chimni is a very strong exponent on this point. He devotes great space to perusing Lenin’s writings on the importance of the proletariat using the judicial process as part of their struggle. His conclusion is that Marxism is what Marxists say it is and Miéville has not properly studied their doctrinal work (Chimni, 2017, 517–24). Marx recognized the potential for change in existing society. Knox develops this further (2009, at 423). There are progressive forces within States which can exploit inconsistencies and force compromise. Indeed, Pashukanis regarded legal nihilism—that law played no role except as a cloak for force—as deeply uneconomical for the bourgeoisie. They had to leave some space for resistance.
8 So, it may be wise to broaden the topic of Marxism and adjudication to embrace the international rule of law. The rule of law supposes an impartial standard applying to legal subjects regardless of individual characteristics—which presumably indicates that a third-party adjudicator, Adam Smith’s ‘impartial spectator’ could, at least in theory, determine whether that rule of law has been broken. The logic of consistency and the ruling out of double standards would be central to such an enterprise.
9 Such a turn actually presents us with an entry into the most burning controversy at present—whether new ‘authoritarian’ powers are threatening the existing international rule of law, or, to use another expression ‘threatening the rules based international order’ (Escobar, 2019; Thayer and Friend, 2018). This is actually quite helpful to focus the topic because it opens up the debate to its highly political character. The so-called post-war (1945) international order—which is now supposedly threatened—is one which enshrines the values of liberal democracy, market economy, and also the territorial settlement or lack of it, which followed the Second World War particularly in East Asia. It would be a challenge for ‘authoritarian’ States to understand how such a set of rules should apply to them for the reason that the rules in question are not universal and distinguish States according to ideological characteristics, which must have at least some dimension of the subjective. A most extreme example of the Western political tendency to treat countries such as China as ‘ethnically’ other is given by United Kingdom Foreign Office Minister of State for East Asia, Mark Field (House of Commons Foreign Affairs Committee 2019). Field speaks of the values of the Anglo-Saxon English-speaking nations, with their shared love of the values of freedom, democracy, and the rule of law, so alien to a civilization such as China’s. Obviously this, if true, presents an insuperable obstacle to the rule of law since such cultural difference cannot be readily altered.
10 Chimni goes on to widen the concept of proletariat to cover all supposedly oppressed groups such as women, ethnic minorities, gay and lesbian groups, and the third world poor. Chimni stresses that class relations in any society also intersect in complex ways with gender, race, and caste relations. He does not call for abandonment of the concept of class, but it will have more traction if it integrates gender and race. This is developed further by Rose Parfitt, who wants to make a definite move beyond Pashukanis’s theory of the legal subject. To economic class struggle she adds the ideas of hybridity and resistance. Here law appears to be, in Foucault-like terms, part of an authoritarian, disciplinary order to be constantly resisted as being the root cause of ‘false’ constructions of the person, legal or otherwise. With a particular focus on indigenous peoples, Parfitt says new legal subjects have to resist constantly if they are to constitute their subject-hood in their own terms. So it is not necessarily desirable to reconstitute the collective self in the traditional ‘authoritarian, disciplinary’ state (Parfitt, 2019, 34–56; Craven and Parfitt, 2018). In fact, the moves by Chimni and Parfitt are ‘game changers’ among the so-called ‘Left’ among Western international lawyers (Marks, 2008). It is not so easy to integrate every theme of anti-authoritarianism into any model which could serve as a rules-based, or legal process–based, international order. At the route of this ‘turn’ is a postmodern and poststructuralist perspective which not merely downplays the idea of economic structures but actually denies any possibility of a totality of vision—the arch ‘crime’ of a tyrannical modernity. Parfitt stresses she has no desire to offer conclusions, when her entire aim is ‘to open up and not to close down’ debate.
11 Marks, Parfitt, Chimni, and Miéville are all close to David Kennedy and Martti Koskenniemi. Their stance suggests two contradictory points. Firstly, critical legal studies here function as a form of legal realism. This disputes the determinacy of legal rules as objective standards and says that judges have effectively absolute discretion to decide cases. They describe the judicial process as one of political argument and choice. They believe, however, that one may engage in this process—with presumably some prospect of success. There is a fatalism here. It is the human condition that there is no objective standard. However, one somehow has to make do and try. The implications for any possibility of the rule of law or the usefulness of adjudication are nihilistic.
12 Miéville does not allow this approach, which he admires, to affect his Marxism. Critical legal studies allow him to support the argument that there can be no rationality or objectivity in human relations, and so no emancipatory space which can be opened through law. There is no resolution of conflict, for instance, between aggressive and defensive use of force, between territorial sovereignty and self-determination of peoples, between foreign investment and host country economic interest (Carty, 2008, 123). However, Koskenniemi does not understand that the interplay of contradictory material forces is the root of legal indeterminacy. Miéville brilliantly castigates the postmodernist Koskenniemi for thinking ‘the problem is solved’ through ‘reflexivity’. This supposes one solves a problem merely by being aware of it. This is postmodernism leading into a cul-de-sac (Miéville, 2004, 58). Miéville agrees that the contradictions exposed by critical legal studies are beyond resolution, but the reasons rest not in linguistic, semantic, or cultural contradictions. They rest in contradictions between capitalism and its prey. The only practical solution is in fact coercion by the stronger party. The States themselves are all bourgeois and so international law does not even directly engage the proletariat, but is a struggle among bourgeois capitalists.
13 It is Marks who provides the ‘death-blow’ to a continuation of Marxist analysis in poststructuralist terms. The essential feature of Marxism is that it purports to give a picture of the totality, a complete vision of the world, history, and humanity. Firstly, she opposes Miéville’s Lenin-style vision of the world-wide struggle of imperialist States, dominated by their nationalist bourgeoisie, the Hardt-Negri vision that contemporary Empire is not an affair of States, still less of a particular State, ie the United States (‘US’), but an all-encompassing, heterogeneous, and partially de-territorialized order (Marks, 2008, 206; Hardt and Negri, 2000). In other words, no one has an overview and no one can escape entanglement in oppressive tendencies, although resistance against all, not just economic, forms of oppression must be continuous—now the standard view since, through Parfitt’s co-authorship with Craven, it finds its way into the 5th edition of Evans, International Law. The objection to the ‘overview’, what is sometimes described as ‘the God’s eye view’, is metaphysical. Marks explains how Miéville’s ‘total vision’ has to give way to Fredric Jameson’s realization that one cannot represent totality. No account can ever sufficiently specify all the social and historical forces that make things what they are. Miéville ends up being dogmatic, although failing in a liberal spirit, ‘not helped perhaps by his very frequent and at times slightly shouty use of italics’ (Marks, 2008, 209). All that Marks will allow—as a means of resistance, as with Chimni, and following the Marxist literary critic, Terry Eagleton—is the possibility to see how, through ideology critique, contradictory aspects of dominant discourse can be revealed, affording a way to emancipation (Marks, 2008, 208). Of course, even such a limited analysis could possibly afford a space for adjudication, provided one accepts that ‘grand’, and presumably indiscernible, structures do not overwhelm the micro-relations favoured by Marks and Chimni.
14 Whether this space for adjudication exists is, in my own view, not a metaphysical issue but an empirical one. The primary empirical question may appear ‘theoretical’, but it should only be subjected to an empirical test, the philosophical musings of postmodernists such as Marks notwithstanding. Knox appreciates this question very well by conceding that Miéville is most probably sound on what he calls the structural question. This affects the very possibility of adjudication. As Knox says, bilateral legal argument cannot deal with the logic of structures of totality (2009, at 431). Legal forms are always bilateral, but structures of capitalism are global (2009, at 432).
15 In my attempt at a Marxist vision of international law, I put the argument onto a level different from Marks and Chimni, not a critique of Marxist doctrine but a more empirical review of actual international economic structures and relations. The argument is that since the sixteenth century the capitalist, imperial project has gradually reduced the rest of the planet to a position of economic and also political subordination reaching its apex in the interwar years of the twentieth century (Carty, 2007, Ch 6). Since the 1970s there has been some measure of political independence of so-called third world countries but my own argument on Marxism and international law is that empirically conditions of reciprocity do not exist in such matters as foreign investment in third world countries and in terms of financial credit in other forms. This is evidenced by coercive economic practices against third world attempts to appropriate added value to commodity production and to systematic seizure of third world equity in the context of debt default by these countries (Carty, 2007, Ch 6).
16 More particularly in the area of pure finance it is clear that the conditions do not exist for impartial standards of adjudication. On the one side there is the US-dominated financial private sector, connected to US sovereign power over the dollar as the global currency. This rests primarily on US political and military supremacy, asserting itself markedly with Iran. The US is easily able to threaten its subordinate allies and set terms not only for granting finance, but also for storing it in banks and facilitating its free circulation for commercial transactions (Carty, 2017, Ch 4). In turn the West sees its national security as threatened by the capacity of China to use State power in a manner to direct strategic investments of Chinese private companies, especially in high technology. In other words, there is no agreement at all on principles of law separate from the individual character of the major participants, the West being the US and its allies on the one hand and China and those who will cooperate with her on the other hand. The contemporary newspaper reports on this are legion. At present the focus has been on the ‘Huawei Threat’ (Bond, 2019).
17 These empirical assertions merely set the agenda for massive empirical research about the quality of foreign investment arbitration. The review by José Alvarez of what he calls ‘The International Law of Property’ (especially of Bonnitcha, Poulsen, and Waibel) shows the difficulty of scientifically conclusive research results. He uses the language of balance and objectivity (2018, at 771). However, countries of radical persuasion, supposedly Marxist, such as Chile (1973), the Congo (1961), and Iran (1953) have been disposed of with Western military aggression. The controversy over Venezuela shows the extent of the field of inquiry which it would be necessary to consider in order to resolve the controversies satisfactorily.
18 This difficulty of analysis is partially a function of the idea that the international law of the post war world since 1945 rests upon the benign hegemony of ‘the West’, headed by the US and its North Atlantic Treaty Organization (NATO) allies. Therefore, any ‘challenge’ to this order will also have economic implications and so the economic aspects of any international agreement will be seen in their geo-political aspect. For instance, Iran is seen by the US, under President Trump, as benefiting from the lifting of sanctions to use its renewed economic resources to expand its military-political profile in the Middle East region. It is fundamental US geopolitical strategy not to allow the emergence of regional hegemons which may challenge its global hegemony, which it sees as necessary to the maintenance of the international rule of law. The Venezuela conflict also has an ideological dimension. The ‘authoritarian’ powers, particularly China, are so economically entangled with the present Venezuela government through loans that they are under pressure to purchase its oil. This can only be seen as a violation of the Monroe doctrine by the US (Doctrines (Monroe, Hallstein, Brezhnev, Stimson)).
19 China as a ‘Marxist’ State is seen as not part of a free global order at present in a number of respects. The BRI is seen by China as an attempt to offer infrastructure support to central Asia, an area where the World Bank and the Asian Development Bank have not been willing to venture. However, it is seen by the European Union and the US as schemes of entrapment in debt, which have to be strategically countered. The Chinese investment in Africa, primarily motivated by a search for raw materials, is also characterized as a ploy for hegemony. The supposed link between Chinese private sector technology companies and the government is also the cause of deep suspicion in the West.
20 All of this empirical material strongly suggests that there is an urgent need to engage with China’s concept of the rule of law and see whether, in the medium term, it will be possible to reach a compromise. The Rand Corporation study of this issue considers that China is not challenging the existing international order but merely wants to help to reshape it. China stands to lose if it is seen as a country which does not respect the rule of law. That is why it makes positive efforts, especially with the BRI, to institute dispute settlement mechanisms. The issue at the moment becomes the highly technical one of agreeing common standards to be applied in adjudication. Chimni devotes his main attention to try to develop new standards for foreign investment disputes, but even he remains at a very high level of generality (2018, at 1).
21 Our conclusion from these discussions is that the analysis of Miéville is most likely correct and it corresponds to President Trump’s ‘transaction’ approach to politics. In essence the ‘transaction’ approach to the rule of law as an idea is that it incorrectly misunderstands the possibility of general rules being applied impartially to a series of parties. Instead, in a version of subject-hood similar to Miéville’s interpretation of Pashukanis, as can be seen in China-US trade negotiations, transactions are concluded between relative equals which have a measure of success because of the sanction of retaliation which is built into them. The criticism can be made that such a perspective is ‘realist’, not Marxist. I would agree with this criticism but would trace it back to the link between Marxist materialism and the joining of the Hegelian idealist view of the State with the Machtstaatsdenken which developed in Germany at the time of Marx’s maturity (1840–90).
22 Miéville’s basic argument is that international law is merely a reflection of temporary compromise among bourgeois-dominated States. However, it is simplistic to treat nationalist third world States such as India and Marxist States such as China as bourgeois capitalist. There is an ongoing struggle where different value systems are in play. It is not clear that there is any theoretical aversion to adjudication in a Marxist perspective, but equally, it is not clear whether any standards have evolved or are evolving which could serve as impartial measures of judgment in financial or economic matters.