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national criminal activity, whether in the export of drugs, dirty
money, or population flows. These agreements will frequently include
forms of military assistance in terms of Western bases and equipment.
The primary and readily applied sanction for non-cooperation is
economic boycott and embargo. The ultimate sanction for non-
cooperation remains military/humanitarian intervention. However,
the distinction between economic and military sanction is not funda-
mental. The coercive character of this imposed legal acquiescence by
non-Western countries comes from its overall objective. It ignores the
overall basic function of civil-political society that is to replace civil
war (and even criminal violence) with freely agreed measures for
overcoming social inequalities and achieving class peace. Instead,
the measures of economic and military sanction are defensive, a re-
establishment of control over non-Western state territory in the inter-
ests of Western security.
Closer attention needs to be paid to the notion of imposed legal
acquiescence. It is a concept essential to but not explicitly developed
in analytical jurisprudence. Hart explains that for a legal system to
exist, it is only necessary for the majority to accept, to acquiesce pas-
sively in the system. How the officials, who internalize the rules and
the others who acquiesce, are distinguished or identified is left open.13
The so-called consensus upon which international law rests includes
the crucial legal legitimization of economic coercion. This is clearly
illustrated by the legislative history of the Vienna Convention on the
Law of Treaties. Again, it was the Western countries that managed to
repel the argument that economic coercion or pressure could consti-
tute a violence that vitiated consent to an agreement. Only a threat or
use of military force against a state was excluded. Overwhelming eco-
nomic pressure would always be permissible.14
Economic hegemony, at the global level, means that the pressure
of combined individual Western wishes and desires expresses itself
in an overwhelming form on the rest of the world. The background
to these wishes and desires is a methodological individualism that
insists that each individual s claims and desires have automatic legit-
imacy and can compel fulfillment through whatever level of pressure
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Resistances to the Neoliberal International Economic Order 197
is necessary. This value-subjective, morally anarchic philosophy is the
essential anthropological basis for the free market economy. It sup-
poses that human demands are not subject to external criticism and
the success of these demands depends entirely on the strength with
which they are pressed forward.
These reflections have remained diagnostic. My argument, to be
developed, is that human rights discourse has to be seen as embedded
in a coercive international legal order, where the idea of law is itself,
as a matter of self-understanding of Western culture, violent. This
legal culture rests upon a vision of voluntarist individualism that is
morally agnostic and makes recourse to violence, i.e. law as sanction,
unproblematic. It should be within this wider context that the
recourse to the language of human rights enforcement, culminating
in humanitarian intervention, is seen and understood.
To find an alternative theory of law and society, one might begin
from such ideas as that human beings come before law, as understood
by the analytical school; that they have rights is a way of saying that
they exist; that human beings can distinguish between what is true
and false, what is good and evil. Therefore, they can share these forms
of knowledge, dialogue with one another, cooperate and avoid war.
Law is, then, the product of freely reached consent in communities
and across communities. No one may command if it is not in virtue
of a delegation from those who dispose of themselves freely, in order
to obey freely, what are reasonably given orders. Political power
implies always an interpersonal relationship of recognition and reci-
procity, mediated institutionally through a judicial assessment of the
quality of these human relations.15
Radical individualism of  Western human rights, whether
Hobbesean or postmodern
The word phagocyte refers to a type of body or cell that engulfs bac-
teria, etc. In his polemic The Hidden Face of the United Nations
(in French) 2000 Michel Schooyans borrows this word from
Solzhenitsyn s famous Harvard Lecture (1978) to describe the ten-
dency present in our society for law to appropriate morality. This may
seem surprising in the face of the liberalization of Western society
from traditional, especially Christian values, in the 1960s and the
1970s. The state withdrew from wide areas of personal life no longer
regarded as of public interest. However, Schooyans points sharply to
a sting in the tail of this liberalization, which he connects with the
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198 Philosophy of International Law
concept of an international legal order that takes coercion/sanction as
its lynchpin.
The Western (i.e. European-North American) concept of the
person, the subject of human rights, is radically voluntarist. It is
based upon the unrestrained will of the individual in a radically sub-
jectivist environment. There is no framework of rational discussion
that can resolve differences and the tendency is increasingly towards
a manipulation of assent through interest groups that reflect eco-
nomic and military interests. The outcome is a forced consensus.
Since human rights cannot be based upon objective understanding of
either the value of the person or of reason, the consensus needed to [ Pobierz całość w formacie PDF ]