There’s a lot of tension between social ideals and legislative realities. What we want is often hit by a legislative wall and its frameworks that dictate what is even possible. To find out more about how idealism could be codified in law and internalized to what is just, Ido Nahari sat down with Ivana Isailović and Ingo Venzke from the University of Amsterdam, who are the head researchers for the TEGL and SGEL programs on law and globalization.
Can the law, especially with its co-dependency with the market, help processes of nonviolent resistance? Can it even be a companion for social movements, whether they’re in Lüzerath, Lesvos, or the Niger Delta?
Ivana: The law is a site of political struggle. We constantly see different interpretations of the law clashing with one another, so the question then becomes: what are the interpretations that will become dominant? The law is never fully static. This means that law could both further emancipatory goals and entrench and legitimize violence. A lot of conservative social movements are very organized in the ways in which they mobilize human rights law in order to change its meaning from within. In the case of abortion, for instance, we see that the United Nations human rights bodies have established a robust understanding of human rights over the past three decades. It includes the right to access abortions legally and safely, as well as mandating that the procedure is made affordable. At the same time, we see very organized, transnational “anti-gender ideology” movements, which oppose any legislative measures that would grant more rights to women and LGBTQI+ people, and would reinforce gender equality. But this story remains incomplete if we don’t also account for how certain international courts, such as the European Court of Human Rights, treat such arguments, and sometimes tend to accept them.
Ingo: Yes, the law is mobilized across the political spectrum. One thing to tease out further is that, as a site of struggle, the law is not neutral. We can see that clearly in international law, where some economic positions are simply significantly better protected—think of the protection of the right to property—than potentially countervailing positions, such as the protection of workers or of the environment. The victims of oil exploration in the Niger Delta know this very well after 20 years of unsuccessful litigation. The question, then, is how entrenched these asymmetries are, what keeps them in place, and how they might best be challenged. Such challenges may proceed with the law, but also against it. For example, the international legal protection of foreign investments or of intellectual property has just gone too far and should be dialed back.
If the law is so dynamic and ever-changing, what are the processes by which social movements can apply political pressure to help change legal frameworks?
Ingo: I think institutions of the law, such as domestic courts, are somewhat sensitive to public opinion. Again, this can be both good and bad. To give a case in point, let’s look at the German Federal Constitutional Court (Bundesverfassungsgericht). It recently recognized future generations’ right to life as an argument to push the current German government to legislate slightly stronger climate action. This legislation would have been nearly impossible to achieve without years of climate protests on the streets. We can see an increasing demand for international law from below, as Balakrishnan Rajagopal put it. International agreements, climate change negotiations, and institutions like the Intergovernmental Panel on Climate Change (IPCC) that were meandering in the covert space of global governance only about a decade ago now repeatedly make front-page news.
Ivana: When we talk about pressure coming from social movements, the question is: who are we talking about? Who has the material and other resources to pressure legislative institutions? Whose voices are heard? We should pay attention to how social movements are framing what the problem is, what they think the legal solution should be, and who wins and loses within this process. We always need to interrogate who speaks and from which perspective. It all depends on the fluency that certain movements have in the language of policy-making. Again, those who have the resources and means to speak the language will be better heard.
Ingo: And it’s a language that caters to specific interests.
When corporations talk about the need for growth, it almost sounds like a repackaging of expansionism. With that in mind, can the law be a tool for decolonization?
Ingo: In international law, there has been a growing role for what is called TWAIL: Third World Approaches to International Law. It emerged alongside the decolonization movements of the 1960s and ‘70s. TWAIL scholars have worked to appropriate the law in a tactical and emancipatory fashion. Interestingly, when we look at the newly independent states, at the former colonies, most of them decided to struggle for international law, not against it. And yes, sometimes it has resulted in hard failures. So, for instance, there was a strong push from newly independent states that gaining real economic and political independence means cutting ties with neo-colonial exploitation. On the one hand, TWAIL has been keenly aware that international law is used to dominate and partake in colonial exploitation. But on the other hand, there has still been the belief that international law could also be transformed and reformed for the better. And because of that, there is now a growing attention to international law’s origins within the context of colonization. For example, there is strong research showing how international law originated in the context of the Spanish colonization and exploitation of South America. But there's still a long way to go in how we think of its ways of domination, as well as its possibilities of progressive transformation. So, yes, TAWIL has done so much in broadening the discourse of international law. As a discipline, international law has also fallen short of reaching a full realization that, outside of the TWAIL framework, much is implicitly a “first-world” approach to international law. To this day, there is no working terminology of “a ‘first-world’ approach to international law.” That approach is just assumed to be the one, universal approach —”international law,” period.
Is there a place for cultural plurality within international law?
Ivana: There could be. Transnational law, whether it is international private law, comparative law, or EU law, has a series of mechanisms that were designed to recognize plurality. But in practice, it is really hard to see a recognition of differences without any prior conditions. One of the reasons is because the Global North, or laws from the Global North, have always been the yardstick of comparisons. One of the main struggles is to meaningfully address and resist the coloniality which is deeply embedded in legal concepts and legal ways of thinking. I have colleagues who are trying to think about what decolonial comparative law could look like that addresses power relations, and emphasizes a plurality of legal traditions and options. In terms of international private law (i.e., the law that regulates contracts, property, or family relations at the transnational level), some similar mechanisms are at play.
Yes: in theory, room is being made for plurality. But at the same time, foreign law tends to be seen through the lenses of domestic law. There are a lot of projections about domestic law and foreign “others.” And in many ways, this leads to the solidification of stereotypes and harmful representations. Take the example of the legal recognition by courts within the Global North of Islamic law divorces. I worked on the French example, and what is clear is that Islamic law tends to be misunderstood, essentialized, and distorted. This ends up reproducing inaccurate and harmful representations not only of Islamic law, but also of Muslim women who are represented as victims of their own “unequal” culture, while the Global North is represented as the champion of gender equality. This, of course, papers over the many ways in which gender-based inequalities and violence are enabled by law in the Global North.
So, in theory, there are many ways in which the law can and should make space for plurality. But I haven’t seen any true attempts to deal with plurality in the form of unconditional recognition. I see the imposition of categories that lead to the perpetuation of many forms of inequalities.
Ingo: Readily agreed. We see very similar things in international law, where there's been a suppression of diversity. There's one egregious example that comes to my mind; a historical one. But much of what it exemplifies continues to persist in our contemporary discourse. It is connected to the emergence of what we call “contract-based investment arbitration” and a series of so-called “oil arbitrations” in the 1950s. Those oil arbitrations created something like a transnational body of law. It holds that the local law of the oil states—most of them being Islamic—could not be trusted. It was deemed to be too “primitive.” What was needed, according to the American and European lawyers of the time, was a “transnational law of civilized nations.” In that case, inter- or transnational law had the deliberate function of setting aside local laws that were deemed “primitive.” The law stabilized resource extraction and secured the financial gains of the big oil companies operating from the Global North.
This example is incredibly telling. The law could be a means of control and a means of codifying either armed struggle or extraction. We’ve talked about the possibilities of international law as both preserving and ravaging human rights in relation to market forces. But let’s flip that around: are there any possibilities for the market to defend human rights against an illiberal legislative system?
Ivana: One thing that I often find extremely interesting is how corporations who violate human rights will simultaneously present themselves as protecting them. Today, for instance, we see companies with diversity charters and all sorts of inclusion and equity initiatives. Many people who might have been very skeptical about corporations in the past are now seeing them as champions of this privatized idea of human rights. Corporations suddenly became champions of gender and racial justice. They essentially appropriated progressive vocabulary and practices. This benefits corporations’ economic interests and the interests of those who tend to be already privileged. To simplify, diversity is promoted to boost employment, competitiveness, and economic growth, and it is only really meant to serve highly skilled and high paid workers. When it comes to gender equality, this is something that feminist scholars have called “managerial feminism,” “market feminism” or “neoliberal feminism”: these interventions tend to benefit a small number of women who align with certain gender expectations and representations. While corporations are challenging the “glass ceiling” for some, the same economic logic leaves existing economic and gender inequalities untouched, and underpins structural reforms that make women, and especially those from migrant backgrounds, as well as racialized and ethnic minorities more precarious.
Ingo: I agree with Ivana. In order to answer the question of how human rights might be used and appropriated to counter market forces, we first need to have an even stronger reckoning with the idea that human rights have been used for decades as an extension of the market. Companies will have to play a significant role in the socio-ecological transformation, but in order to really align business practices with progressive politics, it is, first of all, necessary to call out the differences. It is important for us to hammer the points—first, that unsustainable economic practices persist not so much because of a lack of better knowledge or goodwill, though that also matters. But rather, they persist mostly because of institutional, structural constraints and the conditions of competition. Second, it’s critical to tease out the ways in which the law partakes in the making of markets, and the unsustainable practices they sustain. And third, we aim to seek out how, at both the deep, structural level and the nitty-gritty details, the law may be appropriated and transformed. The contributions from our fellow researchers to the present issue show how that is being done.
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Ivana Isailović is Assistant Professor of EU law, Member of the Amsterdam Centre for European Law and Governance (ACELG), and academic coordinator of the research project on Sustainable Global Economic Law (SGEL).
Ingo Venzke is Professor of International Law and Social Justice, Director of the Amsterdam Center for International Law (ACIL), and Fellow at The New Institute, Hamburg.
