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T H E M I S E RY O F I N T E R N AT I O N A L L AW
The Misery
of International Law
Confrontations with Injustice in the Global Economy
JOHN LINARELLI,
M A RG OT E S A L O M O N ,
and
M U T H U C U M A R A S WA M Y S O R N A R A J A H
1
1
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© John Linarelli, Margot E Salomon, and Muthucumaraswamy Sornarajah 2018
The moral rights of the authors‌have been asserted
First Edition published in 2018
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
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Data available
Library of Congress Control Number: 2017947319
ISBN 978–0–19–875395–7
Printed in Great Britain by
Clays Ltd, St Ives plc
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
John dedicates this book to his wife Lina, who knows a lot about justice, and
to his son John Shih Shin, whose generation will have to deliver it.
Margot dedica questo libro, con amore e gratitudine, al suo marito, alla loro
figlia e sua Nonna.
Sorna dedicates this book to Ahila.
John Linarelli is Professor of Commercial Law at Durham University, co-directs the Institute
for Commercial and Corporate Law at Durham, and is a member of the Centre for Law and
Global Justice at Durham.
Margot E Salomon is Associate Professor in the Department of Law at the London School of
Economics and Political Science and directs the interdisciplinary Laboratory for Advanced
Research on the Global Economy at LSE Human Rights.
Muthucumaraswamy Sornarajah is CJ Koh Professor of Law at the National University of
Singapore.
Preface
This book started as an idea discussed over dinner after a lecture by M Sornarajah
(‘Sorna’) at an event on 31 October 2013 at the LSE Laboratory for Advanced
Research on the Global Economy entitled, ‘Greed, Humanity and the Neoliberal
Retreat in International Law’. Sorna gave the lecture and John and Margot were
commentators, the latter also the convener. The dinner conversation after the event
was very much in the mold of ‘we really do approach the issues in very different
ways but usually reach similar conclusions’, even if we disagreed on the central
point as to whether there was in fact a neoliberal retreat in international law! The
conversation moved to how stimulating, albeit challenging, a book co-authored by
the three of us would be to write. We agreed to write it anyway and met for many
absorbing afternoons to discuss, debate, and rediscover the topics and approaches
that have animated our separate scholarship and would be developed in a collective
work interrogating the problems of socio-economic injustice found in contempor-
ary international law.
We think our willingness to take a chance has paid off with a book we hope you,
dear reader, will find as engaging to read as it was to write. John Linarelli is a legal
scholar with longstanding interests in taking the philosophical literature on global
justice to the next step of making it more sensitive to institutional design, focusing
his work on moral questions relevant to the institutional architecture for the global
economy. He also works in the political economy tradition. Margot Salomon is a
human rights law scholar focusing on legal dimensions of world poverty and on
international law and development. Her work falls within a tradition of applied
critical theory, if the concept of ‘tradition’ suits the varied counter-hegemonic
approaches her scholarship takes on. Sorna is a pre-eminent international invest-
ment law scholar, having written both textbooks and definitive works on invest-
ment law problems facing low and middle-income countries. Sorna was very much
present at the earliest days of the New International Economic Order. So, in this
book you will find a rich disciplinary mix of international law, economics, history,
moral philosophy, political economy, and critical development studies. We have
avoided labels such as ‘interdisciplinary’ or ‘multidisciplinary’ for this work and
will let readers decide if this methodological point requires an answer. What was
of interest to us, from our very first conversations in that London restaurant, was
how we were going to go about normatively critiquing the regimes of international
law relevant to the global economy. It was our conviction, then as now, that inter-
national law must be evaluated for the ways in which it fails to respect the lives of
persons harmed by the global economic order that it helps constitute. We have
viii Preface
sought to expose some tall tales and accepted wisdom, and to make visible and cen-
tral the disenfranchised of international law. To these ends, we saw our divergent
approaches as a challenge to be embraced and not an obstacle to be overcome. We
hope our book engages you, calls some settled convictions into question, and even
generates disagreements so necessary for scholarly debate eventually to work itself
into law and policy.
John, Margot, and Sorna
December 2017
Contents
1. The Legal Rendering of Immiseration 1

2. Confronting the Pathologies of International Law: From Neoliberalism
to Justice 38
3. The End of Empire and the Search for Justice: NIEO and Beyond 78
4. International Trade: From War Capitalism to Contracts of Distribution 110
5. Foreign Investment: Property, Contract, and Protecting Private Power 145
6. Global Finance: Riches for the Few; Harm for the Many 175
7. Human Rights: Between the Radical and the Subverted 226
8. In Lieu of a Conclusion 271
Select Bibliography 275

Index 305
1
The Legal Rendering of Immiseration
Immiseration: the act of making miserable; especially impoverishment

Merriam-Webster Dictionary
The international economic order is unjust. It continues to reflect the dominance

of certain states and to favour their interests while upholding a system of ideas and
practices that extends their privileges. The international economic order cannot
be justified on grounds of respect for persons, particularly those it harms or for
whom life prospects are diminished. This book is preoccupied with the role of inter-
national law in advancing this harmful economic order; it is preoccupied with the
ways in which international law operates at the service of injustice. International
law alone cannot end underdevelopment and eradicate poverty and unjustifiable
material inequality, but it is a precondition of achieving those objectives that the
means by which law creates wrongs are removed. For all the alleged benefits of the
post-war turn to a rules-based system international law is still used as a cloak for
pernicious commercial expansion. International economic law’s processes are coer-
cive, based on a notion of justice as the will of the stronger and its principal mech-
anisms and institutions fail to meet the reasonable expectations of those whose
lives are regulated by the law. As for outcomes, it enriches the few at the expense of
everyone else, it wrongs women with particular efficiency, and it is environmentally
destructive and unsustainable. It is one matter to be concerned with violations of
international law and another to be concerned with the law itself. This book turns
its attention to the latter in an effort to demonstrate how the truth about the role
and effects of the law fail adequately to inform it.
The moral disorder of international economic law contradicts what is expected
of it, so the place to begin is with the pathologies of international law and why
international law is subject to requirements of justice when it operates in the areas
of trade, investment, and finance. Chapter 2 (‘Confronting the Pathologies of
International Law’) offers an argument as to why principles of justice apply to con-
temporary international law. The account of justice for international law set forth
in Chapter 2 puts in tension the long history of ostensible claims about justice that
have forever animated international law. For too long justice has performed the task
of dressing up power to secure its objectives of domination.
The Misery of International Law: Confrontations with Injustice in the Global Economy, John Linarelli,
Margot E Salomon, and M Sornarajah. © John Linarelli, Margot E Salomon, and M Sornarajah 2018.
Published 2018 by Oxford University Press.
2 Legal Rendering of Immiseration
The injustice of the current economic order is reliant on regimes of interna
tional law and their instrumental usage. In important ways this has always been
the case. The origins of international law were rooted in empire and injustice
against distant peoples. Much of that law began in justification of the imperial rule
of a European minority over the large majority of the people of Africa, Asia, and
Latin America. Successive rationalizations given for colonization and subjugation
to imperial rule are constitutive of the genesis and history of international law.
The singularly significant modern effort to liberate the Second and Third Worlds
from the implications of that history came in the form of the New International
Economic Order (NIEO), as Chapter 3 (‘The End of Empire and the Search for
Justice: NIEO and Beyond’) explores. But for all the NIEO’s relevance to our
understanding of the pursuit of economic justice under international law, the
Western world into which those efforts emerged after the ending of imperial rule
did not recognize their objectives—objectives that did not even attempt to disrupt
a market-oriented international law but merely to expand the range of states that
would benefit from it.
The rationalization for the spread of commerce in our age of globalization
remains not very different from those given in the days of imperial expansion
and colonization just as its beneficiaries remain those states with power and their
private corporations. As we see in Chapters 4 (‘International Trade’), 5 (‘Foreign
Investment’), and 6 (‘Global Finance’), contemporary international law in the area
of trade, but also foreign investment and global finance suffer from various patholo-
gies as a result of the historical rationalities inherited from prior eras. The continued
instrumental use of international law is dedicated to capitalist expansion and draws
on the unproven claims that trade and investment promote economic development
and is a panacea for the ills of poverty. As for the global financial architecture, it is
an institutional order to govern the wealth of a community but does so in a way
that imposes needless risk and makes the rich richer and the poor poorer. This use
of international law provides for ‘accumulation by dispossession’,1 a movement of
wealth from poor to rich, and from the public to the private, all the while leaving a
host of ensuing immiserations in its wake.
Today, international law—from international economic regulation to human
rights—is shaped by an economic project premised on the private accumulation
of transnational capital, and on its arrogation of the common wealth, social values,
and the structures that sustain them. Capitalism as practised reflects a primacy of
economic values with its rapacious logic of expansion and uncompromising com-
mitment to profit. In the search for profit, economic growth fails to take inclusivity,
fairness, and sustainability into account and the ways in which it may lead to an
increase in poverty and other immiserations. In furthering the values of this par-
ticular economic project, the regimes of international economic law rely on the fab-
ricated bifurcation, both in theory and institutional practice, of distinct economic
and (so-called) non-economic realms.
1 In the incisive words of David Harvey, A Brief History of Neoliberalism (OUP 2005).
Legal Rendering of Immiseration 3
International law has always been predicated on private property and commodi-
fication and so the social and political values that are constitutive of economies as
much as property and contract have been forsaken. The process of fragmentation
that has taken place has the economic spheres insulated from other areas of inter-
national law such as human rights which—if appositely considered—contain val-
ues that may further the interests of society. Today, as always, the global economy
is structured around the interests of the rich and the managers of capital, and the
easiest way to defend the status quo, as Ha-Joon Chang rightly notes, ‘is to say that
there is a sacred area called the economy, and then to place within this area every-
thing you want, especially those things you do not want to be changed’.2 Post-war
international institutions were deliberately built upon this bifurcation, and one
that decades later any reasonable account of justice is still struggling to see tran-
scended. The separation of the economic and ‘non-economic’ realms is constantly
reinforced through this institutional intermediation. These conceptions reveal a
serious flaw about basic market institutions. Human rights and the conditions for
justice are not exceptions or worse, breaches of the rules of the market, they are,
rather, constitutive of markets, just as rules about contract and property are. The
formal modes of reconciling the fragmentation of international law are reflective of
this enduring split.3
The interests that international economic law was set up to serve have kept social
considerations far removed. In so far as the international economic law regimes are
concerned,4 the argument that is still generally vended is that it is their ethos that
2 H-J Chang in Conversation with J Curtis, ‘History, Law and the Myth of Economic Neutrality’
Series on Economics and Law in Conversation, Laboratory for Advanced Research on the Global
Economy, Centre for the Study of Human Rights, LSE (July 2016) 6, http://www.lse.ac.uk/human-
Rights/research/projects/theLab/Economics-and-Law-in-Conversation---Interview-with-Ha-Joon-
Chang---FINAL.pdf
3 See, M Koskenniemi et al, Report of the Study Group of the International Law Commission,
Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of
International Law, International Law Commission, 58th session, General Assembly, A/CN.4/L.682,
13 Apr 2006; cf J Harrison, ‘The Case for Investigative Legal Pluralism in the International Economic
Law Linkages Debate: A Strategy for Enhancing International Legal Discourse’ (2014) 1 London
Review of International Law 115 with a plea to avoid an artificial attempt at coherence and instead
to expose how legal values may in fact be irreconcilable. See also M Koskenniemi, ‘The Politics of
International Law—20 Years Later’ (2009) 20 EJIL 7, 9: ‘Recent debates of global governance and
especially international law’s fragmentation have well demonstrated the emergence and operation of
structural bias. . . . The point of creating such specialized institutions is precisely to affect the outcomes
that are being produced in the international world.’
4 As for the rules affecting financial globalization at the international level, they are a hodgepodge
of norms that cannot always be classified as falling within recognized sources of international law. Be
that as it may, the ‘club rules’ that form a good deal of international financial ‘law’ have a normative
significance similar to that of officially recognized sources of law and deal with matters that are global.
They are also subject to a variation of the fragmentation critique familiar to public international law
given that global finance has bankers and financial interests as the real makers and beneficiaries of them,
with everyone else effectively passive recipients. There are also institutions of international finance that
fit within traditional structures and sources of international law, such as the intergovernmental Bretton
Woods Institutions, though they play special roles and in some domains are now subordinate to insti-
tutions that produce extralegal norms that play an essential role in governing global finance.
When we use the term international economic law herein we are referring to the international law
on trade, investment, and finance.
best supports other values, not least the realization of human rights and sustainable
development. What we are told, still, is that the remedying of social ills will be
served by ‘the progressive removal of boundaries of all sorts’5 and the private accu-
mulation of capital: a neoliberal global economy is touted as coterminous with the
aspirations of justice. But the alleged commitments, for example, to higher stand-
ards of living and full employment in international trade, to promises of economic
development from foreign investment, and to sustainable development generally
are among the unmet promises of the global economy. As for financial globaliza-
tion, whatever overall welfare gains through economic growth are reputed to derive
from the rules on banking and capital markets, no robust economic welfare aims
are served.
Fragmentation has trade, investment, and finance effectively insulated from the
values of international law that we might find in the fields of environment, human
rights, the rights of indigenous peoples, and the protection of cultural property.
In trade and investment, the movement has been to create distinct regimes with
dedicated compliance mechanisms so that the instrumentality of international law
could be made to operate in liberalizing trade and protecting investment. Regimes
are developed in trade and investment through treaty principles and the expan-
sionary interpretation of such treaty principles that further the objectives of the
beneficiaries of neoliberal capitalism. In finance, most of the rules do not even
rise to the level of hard international law, but are instead soft law norms created
by powerful states that impose the cost of systemic risk on the majority of people
in the world who reap few if any benefits from financial globalization. At the same
time, there is a subversion of the areas that aspire directly to socio-economic and
political security, principally international human rights law. The social conscience
of international law—the regime of human rights law—while surely protecting
some people from socio-economic harms as well as laying bare damaging structural
features of the global economy, is in crucial ways also operating under the predi-
lections of extreme global capitalism. Among the lamentable consequences is that
human rights successes are serving to sustain some of capitalism’s most destruc-
tive tendencies. The insulation provided by the fragmentation of international law
facilitates the furthering of neoliberal objectives with little account being taken
of other objectives—moral, social, collective, human. All the while, the general
ubiquity and dominance of neoliberal capitalism results in it undergirding inter-
national human rights in significant ways, serving further to bolster neoliberal val-
ues. We introduce this line of inquiry below and address it more fully in Chapter 7
(‘Human Rights’).
International law has also shown itself to be deeply hypocritical given the nature
and scope of the internal economic interventions it allows. Transnational economic
regulation penetrates deep within the state—especially within weaker and poorer
states South and North—and impacts extensively on social and economic policy,
whereas poverty and underdevelopment are all too easily said to arise largely from
5 W Streeck, How Will Capitalism End?: Essays on a Failing System (Verso 2016) 201, 225.
factors endogenous to those states, ignoring the influences of both history and
globalization. What we have is the legally sanctioned deep penetration of inter-
national commercial intervention that nonetheless allocates matters of justice and
remedies for globalization’s ‘collateral damage’ to the internal affairs of the poor
state. Even the turn to ‘national ownership’ in confronting poverty in developing
countries is a double-edged sword: it leaves national governments to toil at the
domestic level while their possibilities are shaped in many ways by the strictures of
global capitalism. This hypocrisy prevails in the area of foreign investment protec-
tion, as Chapter 5 demonstrates. Here international law intrudes into an internal
process and externalizes it by demanding conformity with imposed standards of
treatment, ensuring that the state has to sublimate its essential national interests to
the protection of the foreign investment or face the heavy cost of arbitration and
the possibility of an even heavier burden by way of an award for damages against it.
That the new Sustainable Development Goals (SDGs) situate social protection sys-
tems including social protection floors largely within the ‘national’ domain offers
another case in point. ‘Policy space’ and ‘national ownership’ properly understood
are not meant to leave the solutions to poor (or insolvent) countries while the
international structural impediments that delimit those solutions remain firmly in
place. As the chapter on human rights contends, in international human rights law
the most radical area to confront this double standard—the juridical elaboration of
extraterritorial human rights obligations in the area of development—has also been
the most politically contentious area and the least operationalized precisely because
of the challenge it poses to global capitalism and the interests of influential states.
Both past and present we can find the imposition of two distinct normative
orders. Historically there were two core normative principles at work, one justifying
force abroad and the other justifying contract. Force was accepted by Europeans as
the natural order of things when they encountered non-European peoples, whereas
they engaged in treaty-making between themselves—essentially through the con-
tractual notion of pacta sunt servanda. Today, duplicitous normative forces are also
at work. What is referred to in Chapter 4 as the ‘inside–outside distinction’ looks
at the basic structural problems associated with trade agreements—their use of the
contract approach—in which justice is a matter for inside the state only and what
happens outside is subject at most to very basic minimum moral demands. The
inside–outside distinction also highlights how there are dispossessions and aliena-
tions acceptable when undertaken abroad, while these same acts are proscribed
at home. The current practice is of two (somewhat) different forms of capitalism,
one for compatriots and quite another for foreigners abroad. These two different
forms of economic policy can also be seen as between the domestic policies of sov-
ereign creditors and the requirements they impose as lenders on European debtor
nations. There is no pan-European compatriotism when it comes to the treatment
of debtor nations, as the analysis of the European debt crisis in Chapter 6 dem-
onstrates. Across international legal regimes past and present we see the interests
of the powerful applied under the legitimating shelter of law to the detriment of
other peoples—laws or their application that would categorically be rejected at
home: law for others.
In confronting these and other double standards this book takes a pluralist
approach. We deconstruct the present state of affairs with the aim of exposing
unconscionable dimensions of the global economic order, the false premises upon
which it is built, and the role of international law in constituting and sustaining it.
While not prescriptive, this book aims to compel the reader to think beyond exist-
ing assumptions and structures. This work has not been written in order to defend
a liberal conception of justice or a radical one or anything in between; we are inter-
ested in offering a lucid account of the drivers of international law’s inequities and
the grounds for change. All is fair game: liberal conceptions clarify values and elu-
cidate principles by which to uncover illegitimacy and dysfunction in international
society. Radical approaches seek out the roots of exploitation and alienation and
treat them as a premise for investing in fundamental transformative purchase.
Where as liberalism can help us to challenge the system we have, radicalism reflects
a readiness to pass beyond existing society towards a different one.6 In so far as lib-
eral, radical, or any other traditions shed light on the problems and their possible
redress, this book is willing to engage those traditions. This book takes a synthetic
approach drawing from different perspectives and methods, but reaches similar
conclusions whichever approach is applied. And whichever approach is utilized, the
aims remain the same: a sustained realignment of values, interests, and beneficiaries
with what justice requires, dramatic improvement in the human condition, and
effective change to those ends.7
Liberated from the constraints of one theoretical model or another, some parts
of this book reflect a dedication to fixing some of the vilest tendencies of the sys-
tem whereas others veer towards an overhaul of it. On other occasions—such as
in Chapter 6—the proposals are relatively modest, but the dysfunction of the
financial system by any standard of justice is so fantastic that any improvement
would, on one definition, represent radical improvement. In offering a critique,
this work points to a new direction of travel if justice, on any reasonable account,
is to be served. But any prescriptions provided herein should be taken as a begin-
ning to imaging new possibilities under international law, not an end. It may be
that in some areas new rules and policies are needed to offer a meaningful alter-
native, in other areas what is needed are new interpretations of existing rules. In
yet other areas we might want to see rejected the present frame altogether and
embrace ‘postdevelopment’ proposals of non-economic possibilities8 whereby, as
JK Gibson-Graham and Arturo Escobar reason ‘the domain of the economy is not
so seemingly naturally and completely occupied by capitalism’.9 As such, we do not
6 This distinction is inspired by André Gorz in his description of the difference between ‘subor-
dinate and revolutionary reforms’ in Reclaiming Work: Beyond the Wage-based Society (Polity 1999) 7.
7 The approach of this book navigates the perennial tension and intractable dichotomy between the
positions of radicals who denounce the legitimation that comes from efforts to improve the current
system and those of reformers or pragmatists.
8 On the parameters of postdevelopment, A Escobar, Encountering Development: The Making and
Unmaking of the Third World (Princeton UP 1995 with preface to the 2012 edn).
9 Here Escobar highlights the work of JK Gibson-Graham, The End of Capitalism (As We Knew It),
ibid xxxi. There are many models of economies ‘not so completely occupied by capitalism’. See gener-
ally the work of Wolfgang Streeck.
suggest the broad-minded reader is limited merely to imagining the possibilities

of ‘globalization with a human face’ or ‘compassionate capitalism’ but also, or per-
haps instead, the possibility of reconstituting the brutal world if international law
could be made to accommodate that undertaking.10
So, this book offers a grand synthesis on liberal and radical perspectives and
variations therein, and is richer for that diversity. It also moves among the opti-
mistic and the sceptical, even cynical, proclivities of the various authors on the
prospects of international law to serve the cause of justice; the book is pluralist
also in that sense. But where there is no pluralism and no diversity of views is
on the extent to which the regimes of international law are immiserating and
how, with considerable reflection also on the why. On this third dimension,
both the history of international law and the pinpointing of current beneficiar-
ies offer clear insights. There is also full consensus among the three authors on
the impediments posed by international law and the urgent need for change in
our institutional ordering in a manner that foregrounds justice. A relationship of
accountability exists between the creators of international law and those affected
by it. As Chapter 2 details, international law is subject to the robust demands
of justice for reasons having to do with relationships,11 structural features,12
domination,13 and historic wrongdoing.14 From its role past and present as an
institution essential to global endeavours to its effects on whether and how peo-
ple live their lives, international law must be appraised according to demands of
justice. With these aims in mind, we expose international law for what it is and
for what it is not.
10 Even taking care to avoid what Rawlsian-influenced political philosophers call ‘unrealistic
utopias’ and sticking to ideas for change within the realm of human possibilities represents a great chal-
lenge still. See Chapter 2 (‘Confronting the Pathologies of International Law’) 41–43 including the
practices that highlight the need for an equality promoting principle (international law should not cre-
ate or perpetuate inequalities that cannot be morally justified. Instead what we have is the structuring
of institutions so that the wealthy accumulate more wealth at the expense of the less well-off, which is
an inequality aggravating principle); a freedom from domination principles or anti-alienation principle
(international law should develop in a manner that does not challenge self-governance and self-deter-
mination of peoples and the autonomy of persons); and an anti-coercion principle (which provides for
the moral impermissibility of economic coercion by powerful states against weaker states in the making
and interpretation of international law governing the global economy).
11 International law involves a pervasive and necessary kind of interaction between states, affecting
the welfare and conditions for respect of people within states. International economic law is at work in
the most fundamental sites of distribution within the state.
12 The combination of international economic law in its present form and substance along with
circumstances created by history, and the choices of governments and other agents historically and in
the present, combine to produce a structure vulnerable to the perpetuation of injustice in the global
economy.
13 Domination can be understood as the capacity to interfere on an arbitrary basis in the choices of
another. Terrible predations in the form of domination occur as transborder phenomena. Two canon-
ical forms of domination, coercion and manipulation, affect the formation and interpretation of inter-
national law, with structural coercion coming from what is essentially mandatory participation in the
global economy.
14 This book has a prospective focus, looking to history not to establish a legal mechanism for repar-
ations but for the normative features of international law in need of critique for revision.
1. Neoliberal Capitalism: Fact, Fiction, Harms, and Alienations
Neoliberalism represents a distinct ideology emphasizing the importance of some

of the free market mechanisms of neoclassical economics expressed in policy
terms—most particularly private enterprise (expressed in privatization), aggres-
sive liberalized trade, investment, and finance (and the spread of globalization)
and property rights and laissez-faire (expressed in so-called deregulation) and was
a response to the spread of Keynesian economic intervention policies and social-
ist economic planning.15 Its practice is also closely associated with labour market
‘flexibility’, austerity, and the dismantling of the welfare state.16 In essence, neo-
liberal theory sees the market as best in meeting human needs and to those ends
we have seen the construction of markets in land, labour, water, health, education,
and much else. Neoliberalism treats everything as a commodity based on the view
that markets and market signals can best determine all allocative decisions. This
commodification, as David Harvey expresses it, ‘presumes the existence of property
rights over processes, things, and social relations, that a price can be put on them,
and that they can be traded subject to legal contract. The market is presumed to
work as an appropriate guide—an ethic—for all human action.’17 Today, as in the
height of the European conquest of the New World and its period of what Sven
Beckert describes as ‘war capitalism’,18 this market primacy requires that capital
can roam the globe in search of profit maximization with far too little regard to
other values; far-reaching and singularly-focused cross-border trade, investment,
and finance are also thus defining features. To this is added a non-mobile, cheap,
captive labour force available through restrictions on the free movement of people
while extreme capital mobility when used to produce goods and services can move
to where labour is cheapest. In the current era, this artificial comparative advantage
is a direct result of international trade agreements.19 Foreign investment law today
offers its own particular package of neoliberal edicts that serve corporate interests
almost exclusively: privatization policies (and the dismantling of public services),
liberal provisions for the entry of foreign investment, definite protection of private
property, the sanctity of contract, the equal treatment of local and foreign invest-
ment, a market-based compensation standard in the event of expropriation, and
a compliance mechanism structured to give foreign investors unilateral access to
external arbitration.20 Dominating the global economic landscape is a neoliberal
form of financial globalization. This extreme version of capitalism is reflected in
15 See ME Salomon and C Arnott, ‘Better Development Decision-Making: Applying International

Human Rights Law to Neoclassical Economics’ (2014) 32 Nordic Journal of Human Rights 44, 46.
16 For a helpful history of neoliberalism in the context of development economics, see B Akbulut,
F Adaman, and YM Madra, ‘The Decimation and Displacement of Development Economics’ (2015)
46 Development and Change 733, 737ff.
17 Harvey (n 1) 165.
18 S Beckert, Empire of Cotton: A New History of Global Capitalism (Vintage 2015).
19 This and other examples of the artificial and detrimental creation of comparative advantages are
considered in Chapter 4 (‘International Trade’).
20 See Chapter 5 (‘Foreign Investment’).
Neoliberal Capitalism 9
liberalized financial flows, a push to securitize all forms of finance,21 and moves
of finance away from investment and development and towards diversification
and profit-making on trading,22 along with risky capital structures for banks and
shadow banks. The result is a dangerous cocktail of policies that makes the rich
richer while representing a threat of systemic forms of instability that have the
potential to do serious damage to the living standards of those who do not par-
ticipate or at best only marginally benefit from global finance and global banking.
As for sovereign debt restructuring, it prioritizes power and creditors over welfare
and citizens. As is common knowledge, neoliberal policies informed the Structural
Adjustment Programmes of the 1980s as advocated by the International Monetary
Fund (IMF) and the World Bank, just as they are being replicated in the condition-
alities imposed on the borrowing countries of Europe today as the debt and aus-
terity crisis plays out and more generally as a key aspect of the European Monetary
Union.23 Any suggestion that the days of structural adjustment are long over and
that the conditionality attached to IMF loans has been streamlined in recent years
to enable policy flexibility in borrowing countries is unsupported by a comprehen-
sive review of the data.24 The contribution of international law as well as other rules
21 Onaran provides a clear account: ‘The deregulation in the financial markets and the consequent
innovations in mortgage backed securities, collateralised debt obligations and credit default swaps facili-
tated the debt-led growth model. These innovations and the “originate and distribute” model of banking
have multiplied the amount of credit that the banks could extend given the limits of their capital. The
premiums earned by the bankers, the commissions of the banks, the high CEO incomes thanks to high
bank profits, the commissions of the rating agencies all created a perverse mechanism of investments that
led to short-termism and ignorance about the risks of this banking model. In the short-run in the sub-
prime credit segment, even if the risk of default was known, this was not perceived as a major issue: first,
parts of these credits were anyway sold further to other investors, thanks to the generous ratings assigned
by the rating agencies. Second, when there is a credit default, the houses, which serve as collateral, could
be taken over and as long as house prices kept increasing, this was a profitable business for the creditor.
However, this banking model led to a very risky economic model and a time bomb, which was destined
to explode eventually. The bad news from the sub-prime markets triggered the explosion eventually, and
first the market for collateralised debt obligations (CDOs) and then the interbank market, and finally
the whole credit market collapsed at a global scale.’ Ö Onaran, ‘A Crisis of Distribution’ (2009) 44
Economic & Political Weekly 171, 173. See further Chapter 6 (‘Global Finance’).
22 Cross-border financial flows today are designed primarily for investors to achieve diversification
of assets, in the form of asset swapping by investors in high-income countries. Their purpose is to hedge
and share risks among the rich and not for long term finance or to match the supply of savings with
the demand for investment among countries. Cross-border financial flows in the contemporary global
financial architecture are designed to making the rich richer and result in serious capital deprivation
where it is most needed and could be put to more productive uses.
23 On how neoliberalism was built into the euro, see, for example, W Streeck, Buying Time: The
Delayed Crisis of Democratic Capitalism (P Camiller tr, Verso 2014) 174: ‘In accordance with the neo-
liberal programme, the euro . . . eliminated a major element of political discretion from the constitution
of the common market; member states concerned for the employment, prosperity and social security
of their citizens would now have to turn to the instrument of internal devaluation: that is the raising of
productivity and competitiveness through more flexible labour markets, lower wages, longer working
hours, higher labour market participation, and a welfare state geared to commodification.’ See further,
Y Varoufakis, Adults in the Room: My Battle with Europe’s Deep Establishment (Bodley Head 2017).
24 ‘In 2014, IMF Managing Director Christine Lagarde appeared puzzled when a journalist asked
about the organization’s structural adjustment programs. “Structural adjustments? That was before my
time. I have no idea what it is. We do not do that anymore”.’ Alexander Kentikelenis, Thomas Stubbs,
and Lawrence King identified and systematized the 55,465 policy reform conditions mandated in
all IMF programmes between 1985 and 2014. They concluded, in short, that ‘There is a mismatch
of global normative significance to constituting neoliberal finance is explored in
Chapter 6.
The particular dispute settlement mechanisms— or lack thereof— of these
international legal regimes bolster their substance: an international trade dispute
settlement system with no access for aggrieved individuals or groups, the exclusive
competence of investors to sue for damages as part of foreign investment, the virtual
impossibility to hold international financial-development institutions such as the
World Bank and International Monetary Fund to account for human rights harms.
That efforts at advancing obligations and accountability regarding international
cooperation for development and socio-economic rights over the past decades—
from the NIEO to the right to development to extraterritorial obligations in the
area of socio-economic rights—have been stymied reflect how arrangements that
serve global capitalism well determine the mechanisms and substance of law.25 The
mechanisms or their absence, from one regime to the next, make possible the sub-
stance of neoliberal law. The international law we have is the international law that
capitalism has constituted and is an international law that capitalism’s ambitions
can rely on.
There is little difference today in whether the language used to describe this
dominant set of economic and ultimately social rationalities and practices is that of
‘neoliberalism’ or the ‘commodity-form of capitalism’26 or the ‘free market’ under-
stood as either the ‘free play of market forces’27 or ‘liberalized markets’, or ‘market
capitalism’ or just ‘the markets’ or ‘market fundamentalism’, or ‘global capitalism’.28
Today, they all turn around many of the same organizing principles and, import-
antly, represent in theory and practice something far more profound than the reset-
ting of the relation between state and economy;29 neoliberalism has become the
‘governing rationality’ allowing it to, in the words of Wendy Brown, ‘transmogrif
[y]‌every human domain and endeavour, along with humans themselves, accord-
ing to a specific image of the economic’.30 It is a transnational economic project of
between what the IMF says and what the IMF actually does. Available evidence provides little sup-
port for the organization’s fundamental-transformation rhetoric. Instead, we find that the scale of
organizational change was both modest and short-lived . . . The return of structural adjustment brings
these decades-old criticisms of IMF programs back to the fore. The scale and pace of reforms to the
IMF’s practices do not match the organization’s rhetoric.’ A Kentikelenis, T Stubbs, and L King, ‘Did
the IMF Actually Ease up on Structural Adjustment? Here’s What the Data Say’ Washington Post (2
June 2016). For the full study, see A Kentikelenis, T Stubbs, and L King, ‘IMF Conditionality and
Development Policy Space 1985–2014’ (2016) (23) Review of International Political Economy 1.
25 See Chapter 7 (‘Human Rights’).
26 EB Pashukanis, Law and Marxism: A General Theory (1929 Ink Links tr 1978); EB Pashukanis,
‘International Law’ in P Beirne and R Sharlet (eds), Pashukanis: Selected Writings on Marxism and
Law (PB Maggs tr, Academic Press 1980) 168; C Miéville, Between Equal Rights: A Marxist Theory of
International Law (Brill 2005).
27 W Streeck, ‘The Crisis of Democratic Capitalism’ (2011) 71 New Left Review 5, 7.
28 See ME Salomon ‘You Say You Want a Revolution: Challenges of Market Primacy for the
Human Rights Project’ in W Vandenhole (ed), Challenging Territoriality in International Human Rights
Law: Building Blocks for a Plural and Diverse Duty-Bearer Regime (Routledge 2015) 188, 188–89.
29 W Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (Zone Books 2015) 9.
30 ibid 9–10.
accumulation aimed at higher rates of profit and control of raw materials, it looks to
expand overseas markets for one’s own products, and if you have the military clout
to deploy it towards neo-imperial ambitions.31 It is rooted in and reifies commodi-
fication.32 It is a convincing thesis to understand these developments as reflective of
a ‘new constitutionalism of disciplinary neoliberalism’: a project that extends and
deepens the power of capital and market civilization.33
Of course proponents of the neoliberal project, however named, would argue
that it is in fact a project aimed at justice (‘market justice as the highest form of
social justice’)34 in that material well-being and the social good is maximized by
maximizing the reach and frequency of market transactions;35 that material and
human well-being is best satisfied by the market and the role of the state is to guar-
antee the conditions that best allow markets to function, and of course, that the
world has never been richer. The first two arguments—built on the idea that human
need will be best addressed as a by-product of individual greed (profit)36 and that
markets structured with no attention to the demands of justice somehow are best
for everyone—find no empirical support. The third argument is wholly misleading.
Drawing on a range of studies the International Labour Organization (ILO) pres-
ents figures that speak to continual ‘widespread poverty and deprivation’: ‘About
5.1 billion people, 75 per cent of the world population, are not covered by adequate
social security (ILO) and 1.4 billion people live on less than US$1.25 a day (World
Bank). Thirty-eight per cent of the global population, 2.6 billion people, do not
have access to adequate sanitation and 884 million people lack access to adequate
sources of drinking water (UN-HABITAT); 925 million suffer from chronic hun-
ger (FAO); nearly 9 million children under the age of five die every year from largely
preventable diseases (UNICEF/WHO); 150 million people suffer financial catas-
trophe annually and 100 million people are pushed below the poverty line when
31 On this last point: ‘US-led imperialism, for which militarisation is not only a domain of accu-
mulation, but the gyroscope that steadies its course of development, stands to benefit from the war
and its social, political and financial impact.’ A Kadri, Development under Uncertainty in the Arab
World, SPEAK OUT at The Laboratory for Advanced Research on the Global Economy, Centre for the
Study of Human Rights, LSE (June 2016) 1, 2, http://www.lse.ac.uk/humanRights/research/projects/
theLab/home.aspx
32 Cutler defines it in this way: ‘[Interrelated processes that] involve the continuous transformation
of public or common property into private property that is recognized, legitimated and enforced by
the state . . . The continuous nature of commodification relates to the inherent tendency for capitalism
to expand, extensively and intensively, in the drive for new geographic spaces for capital investment
and, intensively, in terms of the creation and legitimation of new methods of private appropriation.
The geographic expansion of capitalism and its penetration into new modes of human activity are thus
integral dimensions of commodification as a continuous process. But equally important is the continu-
ity of the process of transforming or enclosing common or public property into private property.’ AC
Cutler, ‘New Constitutionalism and the Commodity Form of Global Capitalism’ in S Gill and AC
Cutler (eds), New Constitutionalism and World Order (CUP 2014) 45, 49.
33 S Gill and AC Cutler, ‘New Constitutionalism and World Order: General Introduction’ in Gill
and Cutler (ibid) 6.
34 Streeck (n 5) 213. 35 Harvey (n 1) 3.
36 F Magdoff, ‘Multiple Crises as Symptoms of an Unsustainable System’ (2010) 33 Review: Fernand
Braudel Center, Special Issue on Food, Energy, Environment: Crisis of the Modern World System
103, 117.
compelled to pay for health care (WHO).’37 The recent financial and economic
crisis (the result of neoliberalism’s penchants for deregulation so-called)38 pushed
an additional 64 million people into extreme poverty already by the end of 2010.39
Arguments that globalization has meant that the ‘the human race has never had
it so good’ rely on aggregate findings40 and in particular the poverty reduction
figures since the 1990s in a very small number of populous countries (China and
India). Moreover, that familiar soundbite ignores the fact that China’s growth strat-
egy was not neoliberal but heterodox; that its policies have been premised on rapid
urbanization and state-orchestrated land grabs;41 that its policies threaten both sta-
bility and sustainable development;42 that the growth in both China and India has
been fuelled by a scramble for resources in the South;43 and that they both retain
significant aspects of underdevelopment.44 The Millennium Development Goals
(MDGs) claim that poverty has been cut in half relies on the baseline year start-
ing back in 1990 so that China’s gains against poverty during the 1990s could be
factored in. Without that backdating, it would not have been possible to contend
that the Goal to reduce poverty by half globally had been met.45 Furthermore, if
37 Report of the Social Protection Floor Advisory Group: For a Fair and Inclusive Globalization (ILO
2011) xxi, http://www.ilo.org/wcmsp5/groups/public/@dgreports/@dcomm/@publ/documents/pub-
lication/wcms_150440.pdf
38 The Governor of the Bank of England refers to ‘light touch regulation’, while Balakrishnan,
Elson, and Patel prefer ‘profit-led regulation’. M Carney, ‘Inclusive Capitalism: Creating a Sense of
the Systemic’ Governor of the Bank of England (2014) 5, http://www.inclusivecapitalism.org; R
Balakrishnan, D Elson, and R Patel, ‘Rethinking Macroeconomic Strategies from a Human Rights
Perspective’ (2010) 53 Development 27, 35.
39 ILO (n 37) 19 (drawing on World Bank figures).
40 ‘In aggregate terms, the human race has never had it so good. Life expectancy has risen by more
in the past 50 years than in the previous 1,000. When the Berlin Wall fell, two-fifths of humanity lived
in extreme poverty. Now it’s one-eighth.’ S Thompson, ‘Globalization for the 99%: Can We Make
It Work for All?’ World Economic Forum (6 July 2016), https://www.weforum.org/agenda/2016/07/
globalization-for-the-99-can-we-make-it-work-for-all
41 This was justified by reference to a general desire for GDP growth and as such claimed to be in the
public interest. E Pils, ‘Voice, Reflexivity and Say: Governing Access to and Control of Land in China’
in O De Schutter and K Pistor (eds), Governing Access to Essential Resources (Columbia UP 2015) 127.
42 China’s policy of land acquisition is said to have ‘(1) been used heavily by local governments to
fuel urban development and finance infrastructure provision and (2) has resulted in increasing social
tension and injustice that may impose a long-term threat to stability and sustainable development’.
C Ding, ‘Policy and Praxis of Land Acquisition in China’ (2007) 24 Land Use Policy 1.
43 Magdoff (n 36) 103.
44 ibid 120. Moreover, ‘China’s economy has significant weaknesses: an asset bubble has developed
and its economy performs more as a platform on which to assemble parts made elsewhere.’ (ibid).
45 J Hickel, ‘The True Extent of Global Poverty and Hunger: Questioning the Good News Narrative
of the Millennium Development Goals’ (2016) 37(5) Third World Quarterly 749, 753. ‘If we take
China out of the equation, we see that the global poverty headcount at $1.25 actually increased dur-
ing the 1980s and 1990s, while the World Bank was imposing structural adjustment across most
of the global South. In 2010 (the final year of the MDGs’ real data), the total poverty headcount
excluding China was exactly the same as it was in 1981, at just over one billion people. In other
words, while the MDGs lead us to believe that poverty has been decreasing around the world, in
reality the only place this holds true is in China and East Asia. This is an important point, because
China and East Asia are some of the only places in the developing world that were not forcibly lib-
eralised by the World Bank and the IMF. Everywhere else, poverty has been stagnant or getting
worse, in aggregate’ (ibid). The UN concludes: ‘Globally, the number of those living in extreme
poverty declined by more than half, falling from 1.9 billion in 1990 to 836 million in 2015, with
poverty figures were based on a higher international poverty line than the deeply
contested $1.25 a day,46 for example closer to $5.00 a day—which would allow for
a life expectancy of 74 years and is only half of what many economists conclude is
an ethical international poverty line—3.5 billion people globally would be poor.47
As Jason Hickel points out, ‘this is three and a half times what the World Bank and
the UN would have us believe, and about half the world’s population. Of course,
it would be clear that poverty has been getting worse, not better, even without
excluding China.’48 According to one account, global GDP is ten times larger than
in 1950 in real terms—an increase of 260% per capita;49 if even nearly accurate
it’s a tragic figure given the state of deprivation globally. A breakdown by decade,
however, demonstrates that over this period neoliberalism has broadly failed to
stimulate worldwide growth.50 It is a convincing thesis that the shifts under neo-
liberalism, such as the rise of finance, have merely given the appearance of driving a
dynamic global economy.51 For our purposes, the generalized trend is that poverty
remains widespread, is now far worse than we’ve been led to believe, and even if ‘the
world’ has become richer who is the world?
In 1976 the developed market-economy countries, with 20% of the world popu-
lation, enjoyed 66% of total world income. By the twenty-first century, 20% of the
world population is receiving approximately 85% of income, with 6% going to
60% of the population.52 In absolute terms, 40% of the world population is today
living on incomes so low as to preclude fully participating in wealth creation.53 In
most progress occurring since 2000’, http://www.un.org/sustainabledevelopment/blog/2015/12/

sustainable-development-goals-kick-off-with-start-of-new-year
46 In India, a child living just above the $1.25 international poverty line has, according to Wagstaff,
a 60% risk of being underweight. In Niger, babies born to families just above the international poverty
line face an infant mortality risk more than three times the world average. A Wagstaff, ‘Child Health on
a Dollar a Day: Some Tentative Cross-country Comparisons’ (2003) 57 Social Science and Medicine
1529, as cited in Hickel (n 45). See also TW Pogge and SG Reddy, ‘How Not to Count the Poor’ (29
Oct 2005), https://ssrn.com/abstract=893159
47 Hickel (n 45) 755, drawing also on the work of Peter Edwards.
48 ibid (emphasis in the original). 49 Magdoff (n 36) 120.
50 As Harvey indicates, aggregate global growth rates were at 3.5% in the 1960s and even at 2.4%
during the ‘troubled 1970s’ but at 1.4% and 1.1% for the neoliberal 1980s and 1990s respectively and
a rate that ‘barely touches 1% since 2000’, with catastrophic losses in countries that submitted to neo-
liberal shock therapy. Harvey (n 1) 154.
51 Shifts such as the rise of finance and financial services—including rise in corporate remuneration,
the dangerous business of speculation, the creation of financial centres that are ‘islands of wealth and
privilege’ and vast amounts of ‘fictitious wealth’, along with a burst in information technologies that
has most benefited market-driven financialization including speculative activity and short-term mar-
ket contracts while shifting attention away from investment in physical and social infrastructure (ibid
157–59).
52 RH Wade and M Wolf [debate], ‘Are Global Poverty and Inequality Getting Worse?’ in D Held
and A McGrew (eds), The Global Transformations Reader (2nd edn, Polity 2003) 441. In terms of global
wealth distribution, 10% of adults account for 85% of the world total of global assets, with half the
world’s populations—concentrated in developing countries—owning barely 1% of global wealth. J
Davies et al, The World Distribution of Household Wealth, World Institute for Development Economics
(UN University 2006).
53 Human Development Report 2005: International Cooperation at a Crossroads: Aid, Trade and
Security in an Unequal World (UNDP 2005) 38.
the opaque world of inequality measurements, some conclusions indicate that the
global gap between the richest and the poorest people has been expanding and,
moreover, that there is little evidence of actual improvement in the absolute pos-
ition of the poorest since the 1980s (when the latest wave of globalization began).54
Others conclude that based on the standards of living of individuals in the global
population as a whole inequality, after having risen steadily since the beginning
of the nineteenth century, has now begun to fall but due to the performance of
emerging countries.55 As for inequality within countries, it is largely increasing and
can be attributed directly and indirectly to globalization.56 So, in response to the
question who is ‘the world’, the answer can only be that a paradox of globalization
is that there is not one world.
There is a logic to the harms and alienations that needs also to be introduced
at this stage (and that discussions of inequality or even poverty do not nearly cap-
ture). While there is a long and violent history of capitalism to account for,57 in
the post-Second World War period the dominant and orthodox understanding
of ‘development’ and ‘progress’—(industrialized, western, modern)—along with
market capitalism have focused on compelling a shift from non-market to market-
based economies. This has been premised on increasing privatization through dis-
possession and displacement of peasants and indigenous populations, including the
54 T Lines, Making Poverty: A History (Zed Books 2008) 25, ‘Progress towards the reduction of
absolute poverty is heavily conditioned by inequality. This is true not just for income, but also for wider
inequalities in areas such as health, education and politics.’ UNDP (n 53) 54.
55 F Bourguignon, The Globalization of Inequality (Princeton UP 2105) 25–26; B Milanovic, Global
Inequality: A New Approach for the Age of Globalization (Harvard U Press 2016).
56 ‘Directly, because it has lowered the relative compensation for unskilled labor in developed coun-
tries which face direct competition from cheap labor costs of emerging economies, and also because
it has increased the profits and remuneration of capital and highly skilled labor across the world.
Indirectly, through the deep structural changes produced by the heightened competition between and
within nations.’ Bourguignon (n 55) 117. Branko Milanovic has analysed global inequalities in terms
of three concepts: inequality between countries, inequality between countries weighted by popula-
tion, and income distribution between individuals (or households) in the world, termed ‘true world
inequality’. B Milanovic, ‘Global Income Inequality’ in D Ehrenpreis (ed), The Challenge of Inequality
(UNDP International Poverty Centre 2007) 6. A summary of his 2007 findings on global inequality is
that inequality between countries is widening rapidly while inequality between countries weighted by
population has shrunk since 1980, however this is due to the fast growth in China and India. In his lat-
est work, former World Bank economist Milanovic concludes similarly that global inequality (income
inequality among the citizens of the world) has fallen dramatically among nations, but again due to
rising incomes in China and India, while inequality has soared within nations and that there has been
a surge of inequality in the west with inequality in both the United States and China ‘well-entrenched
and self-reproducing’. The beneficiaries of globalization are the people from the emerging Asian econ
omies, predominantly China, but also India, Thailand, Vietnam, and Indonesia as well as the top 1%
globally (‘global plutocrats’)—overwhelmingly from the rich economies—whose real incomes have
risen substantially between 1988 and 2008. If the great winners have been the Asian poor and middle
classes, the great losers have been the lower middle classes of the rich world. Milanovic (n 55) 19–22.
57 See Chapters 3 (‘The End of Empire and the Search for Justice: NIEO and Beyond’),
4 (‘International Trade’), and 5 (‘Foreign Investment’). Araghi and Karides capture this trajectory well
in their summary of the four historical periods of the process of commodification of land rights: primi-
tive accumulation, colonialism, developmentalism, and globalization. F Araghi and M Karides, ‘Land
Dispossession and Global Crisis: Introduction to the Special Section on Land Rights in the World-
System’ (2012) 18 Journal of World-Systems Research 1.
destruction of non-market access to food and self-sustenance.58 As Henrietta

Moore explains in her work on rural households, the framework was one of ‘mech-
anisation, marketisation, proletarianisation and rural migration’.59 It is not para-
doxical that the vast majority of those who are hungry in the world today work as
part of the food system; small independent food producers or waged agricultural
workers toiling on farms in the formal or informal sector represent over half of the
billion who go hungry today,60 what Farshad Araghi refers to as a living life under a
regime of ‘forced underconsumption’.61 Indeed, figures from 2008 show that there
was greater profit made by food companies than ever before in history while more
people went hungry than ever before in history.62 The process of ‘depeasantization’
has land effectively stolen from the poor (or from nature) as its value increases.
Market forces see capitalist relations enter rural areas of the developing world with
their markets becoming integrated into those of the rest of the world.63 More than
half of humanity now lives in cities, with a third of those (one-sixth of humanity)
living in slums.64 This model of decimation as development is not limited to dispos-
sessing smallhold farmers and fisherpeople, indigenous peoples and peasants in the
developing world, its dedication to expanding the reign of the market and enforcing
the private over the public (be it enclosures of public space or privatization and com-
modification) is of course widespread in the industrialized west.65 The threat posed
by the bailout of dangerously leveraged banks at the expense of almost everyone else
is a quintessentially modern example of ‘accumulation by dispossession’. The model
we have, in the words of Harvey, is to redistribute through dispossession.66 The
regimes of international economic law directly facilitate these endeavours.67 As for
58 See ibid; Harvey (n 1) 159; R Nixon, Slow Violence and the Environmentalism of the Poor (Harvard
UP 2011).
59 HL Moore, ‘Global Prosperity and Sustainable Development Goals’ (2015) 27 Journal of
International Development 801.
60 O De Schutter, Report of the United Nations Special Rapporteur on the Right to Food: Agribusiness
and the Right to Food UN Doc A/HRC/13/33, 22 Dec 2009, https://documents-dds-ny.un.org/doc/
UNDOC/GEN/G09/177/76/PDF/G0917776.pdf?OpenElement. Women are overrepresented in
the informal sector and, for example, constitute 80% of Africa’s farmers. UN Millennium Project,
Fast Facts: The Faces of Poverty, UN Millennium Project (2005), http://www.unmillenniumproject.org/
documents/3-MP-PovertyFacts-E.pdf
61 F Araghi, ‘Accumulation by Displacement: Global Enclosures, Food Crisis, and the Ecological
Contradictions of Capitalism’ (2010) 34 Review: Fernand Braudel Center 113.
62 See J Viertel, ‘Why Big Ag Won’t Feed the World’ Atlantic Monthly (20 Jan 2010), http://food.
theatlantic.com/sustainability/why-big-ag-wont-feed-the-world-l.php. ‘And hunger was common and
widespread before this period. When supplies are tight “The Market” “decides” the “highest and best
use” for products. This means that the wealthy countries and the wealthy within even poor countries
are advantaged while poor people suffer.’ Magdoff (n 36) 110–11.
63 Magdoff (n 36) 107. Magdoff’s use of the term ‘depeasantization’ is taken from Araghi (n 61).
64 ibid 106.
65 See, among other accounts, D Stuckler and S Basu, The Body Economic: Eight Experiments in
Economic Recovery from Iceland to Greece (Penguin 2013).
66 Harvey (n 1) 159.
67 For a selection of (by now familiar) examples: ‘Some of this displacement from rural areas to
slums has been directly caused by neoliberal trade policies promoted by the United States and the
World Trade Organization . . . [T]‌he drive to enhance U.S. exports of food through reduction of
import tariffs in poor countries has had a very detrimental outcome, because local farmers couldn’t
compete with the relatively low price of imported foods.’ Magdoff (n 36) 106. The literature on land
international human rights law, while its elaboration and interpretation have been
effective in protecting certain people from some socio-economic harms, as we argue
herein, in significant ways international human rights law has been reinforcing the
contemporary enterprise of global capitalism.
Fred Magdoff’s depiction of capitalism today aptly refers to the ‘attitudes and
mores needed for the smooth functioning of the system—greed, individualism,
competitiveness, exploitation of others, and consumerism’,68 characteristics that
arise because they are ‘built into the inner nature and logic of our present system
of production’. In industrialized countries, those who can afford it consume far
beyond any reasonable conception of human need or indeed indulgence, using
up natural resources and contributing to environmental destruction.69 Indeed,
from the pollution of air, water, and soil to greenhouse gas emissions we destroy
the support systems upon which we depend, and then turn to the global com-
modification of pollution rights for their contested market-based solution.70 The
destructive cycle continues through our model of development that equates it
with modernity premised primarily on the ability of more and more people to
join the consuming classes all the while closing off routes that foster alternative
values and systems.
Not only has global neoliberalism been accompanied by particular forms of dis-
possession, violence, and immiseration, it has failed on its own terms. Moore’s work
mirrors that of many others when she concludes that countries in the global South
that adopted trade liberalization, privatization, and fiscal discipline through the
1990s saw their economic growth rates turn out to be low not only in absolute
terms but also relative to other countries that did not follow such reforms or only
partially.71 In countries that underwent neoliberal shock therapy from the coun-
tries of the former Soviet Union in the 1990s to Greece from 2010, there have been
grabs—foreign corporate land takeovers in developing countries to produce crops for export—is
extensive (see ibid). ‘Another distortion has resulted from the patenting of life and individual genes
so they become the property of a corporation . . . The top four firms now control over 40% of the
global seed market and it is estimated that in the United States over 80% of the corn and the over
90% of the soybeans planted use traits developed by Monsanto’ (ibid 109). ‘In poor countries, the
opening of markets to competition and the cessation of government support for agriculture under
pressure of international organizations, such as the IMF and the World Bank, have had devastating
results, as imports and lack of government support have driven farmers out of business. The neoliberal
(“Washington Consensus”) dogma holds that by dropping government supports and import taxes or
restrictions, each nation will produce items for which it has a “comparative advantage” and all will
prosper as “free trade” governs economic relations among nations’ (ibid 109–10).
68 ibid 123.
69 See ibid 122, and F Magdoff and J Bellamy Foster, ‘What Every Environmentalist Needs to
Know about Capitalism’ (2010) 61 Monthly Review, http://monthlyreview.org/2010/03/01/what-
every-environmentalist-needs-to-know-about-capitalism. If unsustainable consumption by the middle
class in industrialized countries is necessary for economic growth, then there is a problem not least with
the absence of policies to prevent or mitigate that need.
70 See further, L Lohmann, ‘Marketing and Making Carbon Dumps: Commodification, Calcula-
tion and Counterfactuals in Climate Change Mitigation’ (2005) 14 Science as Culture 203; F Araghi,
‘The End of “Cheap Ecology” and the Crisis of “Long Keynesianism” ’ (2010) 45 Economic & Political
Weekly 39.
71 Moore (n 59) 807–08. Harvey (n 1) 154, and see generally the work of Ha-Joon Chang.
catastrophic losses. It is trite to suggest that globalization was oversold, in many

cases its disinclined customers never bought it but were saddled with it nonethe-
less. In other cases it was galvanized by the end of communism and the unhindered
thrust towards global market capitalism.
The reader may be familiar with the figures and trends offered in this section,
as they have been repeated in various forms for decades. Still there are a number
of points to draw out even from this brief statistical review and the wider insights
offered: one, that any debates over trends do not mask the persistence and magni-
tude of both poverty and inequality on a global scale. Two, the consequences are not
merely those of persistent and very considerable poverty and an explosion in mater-
ial inequality, but that poverty and inequality are accompanied by systemic dispos-
session, alienation, and immiseration. Three, the dominant narrative and practices
have ‘development’ and human betterment rely upon this grossly disempowering
system that has both failed to benefit most people and created a huge alienated
transnational class in the process. This alienated class is not an unfortunate side
effect of a largely benevolent and successful economic model as we are often told—
it is part of the sacrificial logic of its functioning;72 it is a dispensable necessity.
The fourth point, for our purposes, is that the drivers of this systemic alienation
and these unforgiving trends persist with the support of international law as inter-
national law licenses ‘the raw avarice of the market’.73
There have been responses to this model of globalization of course—see the work
of the Via Campesina movement supporting small-scale sustainable agriculture
since 1993 as a way to promote social justice and dignity; alternatives highlighted
at the annual World Social Forum that seek to rethink the singular dominant model
of the economy that has underpinned rural development policies and to work with
local communities;74 there is agroecology in Latin America and the Caribbean;75
the articulation of rights against global capitalism captured in the process around a
UN draft Declaration on the Rights of Peasants, and many more examples. It is a
point of significant note that these efforts are known to incur violent responses by
vested interests: the 2016 cases in Honduras where indigenous opponents of large-
scale land deals and hydroelectric projects that threatened the food and water sup-
plies of local communities were murdered for challenging powerful corporations
and their compradors is just one recent, egregious example.76
72 See S Marks, ‘Human Rights and the Bottom Billion’ (2009) 1 European Human Rights Law
Review 37; S Marks, ‘Exploitation as an International Legal Concept’ in S Marks (ed), International
Law on the Left: Re-examining Marxist Legacies (CUP 2008) 281, 301–02.
73 BJ Stark, ‘What’s Left? A Review of International Law on the Left by Susan Marks’ (2010) 42
George Washington International Law Review 191, 211, referring to the chapter by A Claire Cutler
and her consideration of the normalizing function of international trade law.
74 Alternatives include in-kind labour remuneration, reciprocal labour exchanges, local currencies,
neighbourhood care networks and ritual practices—that Moore explains are well documented and well
understood. Moore (n 59) 808.
75 ibid.
76 According to Global Witness, figures available for 2014 suggest 40% of global killings of land
and environmental defenders are people from indigenous communities, https://www.globalwitness.
org/en/press-releases/global-witness-releases-new-data-murder-rate-environmental-and-land-activ-
ists-honduras-highest-world
But bottom-up efforts do not change the fact that top-down efforts continue to
shape our economic, political, and social models. It is a convincing thesis that the
wrong questions are being asked and the wrong results are being measured: ‘All too
often privatization, liberalization, and even macro stabilization have been treated as
objectives of reform . . . But all too often no scorecard was kept on the number of
individuals who were pushed into poverty, or the number of jobs destroyed versus
those created, or on the increase in violence, or on the increase in the sense of inse-
curity or the feeling of powerlessness.’77 The dominant approach too often meas-
ures the wrong things, telling us that we are all better off, and selling the current
world system not merely as the best there is but as all there really is. International
law plays an integral role in this charade; it is not merely reflective of it and compli-
cit in it, but constitutive of it.
2. The Determinacy of International Law
There are important accounts of international law that foreground its malleabil-
ity and its indeterminacy—in that it can be deployed to support any outcome;78
‘what gets read into it (or out of it) is a matter of subtle interpretative strategy’.79
In so far as the interpretation of international rules can, in principle, be helpfully
indeterminate, that is able to bend towards justice (or retain the prospect that
they will), it is not hard to see the ways in which it is dangerously determinate
(with human rights law not being immune as Chapter 7 demonstrates).80 That
77 JE Stiglitz, ‘Foreword’ in K Polanyi (ed), The Great Transformation: The Political and Economic
Origins of our Time (Beacon Press 2001 edn) xv–xvi.
78 M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Finnish
Lawyers’ Publication Co 1989). ‘The structuralism of FATU was designed to destabilize the sense that
the immediate aspects of international law were true and fixed and action-determining. They were
produced, instead, by techniques and arguments that were quite contested and even contradictory.’
The official rules and policies that an institution claims to follow are indeterminate and ‘there are
always many alternatives for such an interpretation –many ways to choose’: M Koskenniemi, ‘What is
Critical Research in International Law: Celebrating Structuralism’ (2016) 29 LJIL 727, 729 and 732.
See generally N Purvis, ‘Critical Legal Studies in International Law’ (1991) 32 Harvard International
Law Journal 81, 109.
79 Koskenniemi (n 3, ‘Politics of International Law’) 9.
80 Our position is not as far from Martti Koskenniemi’s as it might at first seem. He writes in the 2005
Epilogue of From Apology to Utopia: ‘My intuition was—and remains—that the most serious problems
of the international world are related to its sharp division into a relatively prosperous and peaceful North
and an impoverished and conflict-ridden South (it is not necessary to take these descriptions in their ori-
ginal geographical sense) and that our practices, institutions and conceptual frameworks somehow help
to sustain it. Undoubtedly international law may be used for valuable purposes for challenging aspects of
the international political or economic system, for instance. In practice, however, it is constantly directing
attention away from important problems by defining them as “political” or “economic” or “technical” and
thus allegedly beyond the law’s grasp . . . [There is] an astonishing insensitivity to the permissive role of
legal rules—the way they liberate powerful actors and reproduce day by day key aspects of the world that,
although they are contingent and contestable, have begun to seem natural or unavoidable. Why is it that
concepts and structures that are themselves indeterminate nonetheless still end up always on the side of
the status quo? These intuitions lead me to what I now think is the main political point of From Apology
to Utopia. For the “weak” indeterminacy thesis to turn into a “strong” one, it needs to be supplemented
by an empirical argument, namely that irrespective of indeterminacy, the system still de facto prefers some
The Determinacy of International Law 19
international legal rules offer the basis for contradictory positions, a platform for
diverse interpretations, and reflect varying political perspectives is so only once we
account for how categorical the assumptions and premises of neoliberal capital-
ism are in international law—from the density of trade and investment treaties to
trade law’s ‘obligation-exception/defence structure’81 to the dominant approach in
trade and investment circles that their subject matter is largely distinct from the
social contract that states have with their people (with those ‘domestic’ issues to be
addressed by international organizations specializing in development or perhaps
by human rights). In the realms of international economic law, we are presented
with an understanding of property that defines it as individually owned and com-
mercially exploitable. Norms related to private property (and its protection) as
well as to the sanctity of contract (and the insinuation that these international
‘contracts’ govern purely private global matters) have been presented as essential to
economic development as well as, in the latter case, to the functioning of the finan-
cial order.82 ‘Non-market’ values—such as the protection of human health and
the environment—are conceptualized as intrusions into the market and allowable
only as exceptions to free trade, which is ‘the necessary ideal’.83 Alongside these
‘exceptions and flexibilities’ there has been a huge and needless loss of life over the
past decades, prime examples being the unaffordability of patented antiretroviral
drugs under the WTO’s Intellectual Property Agreement84 and trade commitment
restrictions on national food security strategies.85 International treaties in trade and
outcomes or distributive choices to other outcomes or choices . . . Some of my later writings have sought to
show how biases emerge and operate in the law . . . They seek to show that out of any number of equally
“possible” choices, some choices—typically conservative or status quo oriented choices are methodologic-
ally privileged in the relevant institutions’, From Apology to Utopia: The Structure of International Legal
Argument (CUP 2005) 606–10, references removed, emphasis in the original.
81 General Agreement on Tariffs and Trade (GATT), 30 Oct 1947, 55 UNTS 194, Art XX; General
Agreement on Trade in Services (GATS), 15 Apr 1994, 1869 UNTS 183, Art XIV. This is also a feature
of some international investment agreements but general exceptions are still found in only a minority
of the 3,500-plus agreements concluded. For a critique of the obligation–exception/defence structure,
see Chapter 4: these exceptions show us not only the way in which so-called ‘non-trade values’ are
dealt with in trade agreements, but conceptualizing treaties in the economic language of contracts con-
strains our thinking about trade treaties as involving primarily issues associated with the institutions
of transacting and not much else. The general exceptions provisions illustrate problems in the contract
approach.
82 See Chapters 4 (‘International Trade’), 5 (‘Foreign Investment’), and 6 (‘Global Finance’).
83 See Fakhri on the position of the former WTO Director-General Pascal Lamy, M Fakhri, ‘Food
as a Matter of Global Governance’ (2015) 11 Journal of International Law and International Relations
68, 70.
84 On 23 January 2017 the first amendment to WTO rules since the organization was established
back in 1995 entered into force. The Protocol Amending the Agreement on Trade-Related Aspects
of Intellectually Property Rights provides a legal pathway to ease access to affordable medicines in
developing countries that mostly rely on imports for their medicinal needs. Unlike earlier efforts in
the WTO to address this issue, the amendment gives legal certainty that generic versions of patent-
protected medicines can be produced under compulsory licensing specifically for export to countries
with limited or no pharmaceutical production capacity. It has taken over a decade for the amendment
to enter into force. Its effective use remains an open question.
85 Still no resolution found at the latest WTO Ministerial Conference. Public Stockholding for
Food Security Purposes, WTO Ministerial Decision of 19 Dec 2015, WT/MIN(15)/44, 21 Dec 2015,
Nairobi Ministerial Conference.
investment combine in a way that provides many benefits to capital but none to
labour: capital is mobile and protected, but labour is immobile and unprotected. It
is in the nature of international law that treaties are open to interpretation and that
ambiguities in treaties will be exploited and may reflect shifts over time.86 But in so
far as the interpretation of economic rules might contribute to the welfare of the
subaltern classes,87 it is a partial and profoundly unsatisfying project that does not
change the terms of the debate nor open up space for shaping real alternatives to
the global economy.88 Nor does it invite consideration of the role of international
law in constituting and licensing the power of capital, driving the demise of demo-
cratic governance, and marshalling the immiseration of many a people.
The neoliberal ideal conceptualizes principles of justice (including human
rights) as alien intrusions which work against international law’s liberating (and
liberalizing) potential. But rules that seek to promote justice should be constitu-
tive of markets, not alien to them. As Robert Knox points out, this circumscrip-
tion of international law’s potential is seen in so far as legal argument deals with
effects—‘violations’ and ‘disputes’—while it does not do well at examining ‘the
general structural causes that lurk beneath them’.89 Where causes are exposed, as at
If the aim of international trade rules was to see the world well fed there would be a move to limit
states’ excessive reliance on international trade in the pursuit of food security and in increasing small-scale
food production, particularly among women, and by pursuing economic policies that increase, rather
than decrease employment and livelihoods. See TA Wise, ‘Feeding the World: The Ultimate First World
Conceit’ Triple Crisis (18 July 2015), http://triplecrisis.com/feeding-the-world-the-ultimate-first-world-
conceit; D James, ‘Investing in Agriculture in Developing Countries: The World Says Yes, But the WTO
Says No’ Alternet (31 Mar 2015), http://www.alternet.org/world/investing-agriculture-developing-
countries-whole-world-says-yes-wto-says-no; O De Schutter, The World Trade Organization and the Post-
Global Food Crisis Agenda: Putting Food Security First in the International Trade System, Briefing Note 04
(Nov 2011), http://www.ohchr.org/Documents/Issues/Food/BN4_SRRTF_WTO_EN.pdf
86 See A Lang, World Trade Law After Neoliberalism: Re-imagining the Global Economic Order (OUP
2011) 164–69 on the indeterminacy of WTO law. There are creative proposals on how to interpret
WTO law towards progressive ends, see R Howse, Climate Mitigation Subsidies and the WTO Legal
Framework: A Policy Analysis, International Institute for Sustainable Development (May 2010) and R
Howse and J Langille, ‘Permitting Pluralism: The Seal Products Dispute and Why the WTO Should
Accept Trade Restrictions Justified by Noninstrumental Moral Values’ (2012) 37 Yale Journal of
International Law 367, 401–02. The law on foreign investment offers its own (tenuous) solutions—see
M Sornarajah, Resistance and Change in the International Law of Foreign Investment (CUP 2015) ch 6.
87 One of the features of Chimni’s critical Marxist international law scholarship, BS Chimni, ‘An
Outline of a Marxist Course on Public International Law’ in Marks (n 72, International Law on the
Left) 53, 56–57.
88 As Orford points out on the conditioned response of ‘progressives’ to Europe’s farm subsid-
ies: ‘[T]‌he idea that Europe should abandon its support for agriculture, that industrialised subsidies
for farmers are the cause of food insecurity, and that agricultural policy is not social policy, is now
becoming something of a mantra even amongst progressive critics. There is little consideration of
the possibility that what is needed is precisely more social policy in the form of agricultural policy—a
recognition that how land and food is organised goes to the heart of every polity. In my view, this is
not the time to demand that the European countryside begin to be managed in the same way that
the countryside of Asia, Africa and Latin America has been, but rather this is a moment to revisit the
alternatives to the management of agriculture and rural life that might yet be available.’ A Orford,
‘Food Security, Free Trade, and the Battle for the State’ (2015) 11 Journal of International Law and
International Relations 1, 67.
89 Knox suggests that international law is ‘incapable’ of dealing with causes (‘this is where legal
argument proves too specific. Legal argument resolves specific ‘violations’, ‘disputes’, or ‘instances’, but
The Determinacy of International Law 21
times is the case in international human rights law, the approach adopted in human
rights law is largely hortatory, since the form of its international legal mechanisms
still offer few ways of redressing those structural impediments.90 Structural and
causal accounts are increasingly considered in international human rights law, even
if there is still too little it can do about it.
International law was developed to facilitate economic relations;91 it codi-
fied laws of property and contract built on the cardinal principle of capital-
ism—that the state must respect the will of private parties—legitimating and
enforcing private ownership of means of production and exchange.92 China
Miéville convincingly reasons, since private ownership implies the exclusion
of others it builds in disputation and contestation, with coercive force implied
in the defence of what is mine; this coercion (that something is mine and thus
not yours and I can assert my claim) is at the heart of commodity-form and the
coercion that underpins it.93 As the Soviet jurist Evgeny B Pashukanis exposed
in his seminal work of the 1920s and 1930s, it is competition among capitalist
states that underpins international law.94 In short, international law has always
reflected the fight for greater coercive force among (unequal) participants in
economic relations.95
it never questions the general structural logics that lurk beneath them, and so cannot fully eradicate
the problems it addresses’). R Knox, ‘Marxism, International Law, and Political Strategy’ (2009) 22
LJIL 413, 430.
90 CESCR, Statement on the World Food Crisis, E/C 12/2008/1, 20 May 2008, where the UN
Committee on Economic, Social and Cultural Rights demonstrates a clear concern for causal fac-
tors precipitating and exacerbating the food crisis even if the remedies are only at the level of broad-
based recommendation. On the (creative) application of the Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights to multiple states causing indivisible harm, see
ME Salomon, ‘Deprivation, Causation and the Law of International Cooperation’ in M Langford,
M Scheinin, W van Genugten, and W Vandenhole (eds), Global Justice, State Duties: The Extra-
Territorial Scope of Economic, Social and Cultural Rights in International Law (CUP 2013) 259.
91 The foundations of international law for the modern state offered justifications for the use of
force in support of European commercial interests to compel non-European peoples to trade and in
the conquest of the land and resources of non-European peoples. It was frequently based on the unre-
strained actions of private individuals (Beckert) and multinational companies had the right to conclude
treaties with foreign powers, to wage war, and to levy taxes. For an elaboration, see Chapter 3 (‘The
End of Empire and the Search for Justice: NIEO and Beyond’) and especially Chapter 4 (‘International
Trade’). See also, C Miéville, ‘The Commodity-Form Theory of International Law’ in Marks (n 72,
International Law on the Left) 92, 109, including his coverage of Pashukanis: ‘The development of law
as a system was evoked not by the requirements of the state, but they necessary conditions for com-
mercial relations . . . Commercial relations . . . ushered in the ius gentium’ (ibid 115); ‘The spread and
development of international law occurred on the basis of the spread and development of the capitalist
mode of production.’ Pashukanis (n 26, ‘International Law’) 168, 171–72.
92 D Kennedy, ‘The Role of Law in Economic Thought: Essays on the Fetishism of Commodities’
(1985) 34 American University Law Review 939, 956; Cutler (n 32) 48.
93 Miéville (n 91) 112–13, 115ff.
94 Pashukanis (n 26, ‘International Law’) 168, 172; and see Miéville (n 91) 118–20.
95 The argument that international law is a consent-based system and as such coercion is justified,
flowing as it does from the consent of states, is wholly unconvincing. The independence formally
afforded states as sovereign equals under international law does not endow them with functional equal-
ity in the shaping or enforcement of the rules. On this implied voluntarism see further ME Salomon,
The DNA of international law as a capitalist, commercial, coercive enterprise
was set up to facilitate the political–economic interests of the day and continues to
give authoritative expression to dominant interests. As such, the widespread immis-
eration we know today is in good part a result of the pivotal role played by the
international legal system. There is a compelling argument that suggests in order
to address the social and international problems of immiseration change would
be required not only or initially of the dominant capitalist schematic, but of the
eradication of the forms of capitalist law that have been established to support it
and which give it expression.96 On this account, anything less ‘can only ever tinker
with the surface level of institutions’.97 It may, however, have to be enough merely
to tinker—merely to qualify the law of neoliberal capitalism—but while any mean-
ingful improvement to the current dysfunctions that immiserate would constitute
a certain kind of success, it would come at a cost of legitimating and sustaining the
international legal system that gives rise to immiseration in the first place.98
3. International Law to the Ends of Justice: NIEO

and Human Rights?
Perhaps the two most significant post-war examples of deploying international law
to the ends of economic justice have come in the form of the drive for a New
International Economic Order and the advance of international human rights law,
in particular in the area of development and socio-economic rights. In important
ways, the demands by Third World developing countries for an NIEO in the wake
of decolonization continues to represent the high-water mark of challenging the
precepts of international law, even if it didn’t achieve its aims of a different form of
global economic integration based on equality between states whereby the South
could catch up with the North. It is a convincing thesis that the NIEO was never
going to be transformative given the ways it sustained the deleterious logic of the
capitalist world economy.99 But, as explored in Chapter 3, it was the first time a
set of concrete economic principles were prescribed in international law, for the
whole world, articulating a form of justice based not on domination of one people
‘Poverty, Privilege and International Law: The Millennium Development Goals and the Guise of
Humanitarianism’ (2008–09) German Yearbook of International Law 39, 41–43.
96 That is, as Miéville frames it, the fundamental reformulation of the political economic system.
A fundamental impediment to radical change through law ‘or even the systematic amelioration of
social and international problems’ through law comes also from the juridical system: ‘Law is a relation
between subjects abstracted of social context, facing each other in a relationship predicated on private
property, intrinsically depending on coercion.’ Miéville (n 91) 131.
97 ibid 130.
98 Knox (n 89) 431–32. Knox’s solution to this dilemma is one of ‘principled pragmatism’ whereby
international law is never used ‘because it “is law”, but only insofar as its content can advance the aims
of progressive constituencies’ (ibid 433).
99 See H Addo (ed), Transforming the World Economy: Nine Critical Essays on the New International
Economic Order (United Nations University 1984).
International Law to the Ends of Justice? 23
over another. Despite its significance however, the NIEO effort was ultimately not
successful.
The NIEO initiative failed on a number of counts: in so far as it was the
aim, it failed to displace the power and advantage held by influential states, it
failed to modify the rules of international law that served and continue to serve
the economic interests of capital-exporting states,100 and, most pointedly, it
reflected the acceptance of the Third World to the economic ideology of the
advanced capitalist world, bolstering the commitment to universally recognized
value of foreign capital including exploitation of local labour in ‘periphery’
countries.101 The one normative success which is often said to have emerged
from the efforts by developing states to shape the evolving rules of international
economic law under the NIEO initiative—the general acceptance by the inter-
national community of the principle of permanent sovereignty over natural
resources (PSNR)—did not go far enough in entrenching any transformative
or redistributive agenda.102 Moreover, the claim of developing states to their
natural resources aimed at domestic use and benefit still served to reinforce the
contested terms upon which the world economy operates—of the primacy of
private property and the exploitation of nature. As one commentator put it,
PSNR represented ‘a continuation of, rather than a break with, the colonial
interpretation of the earth and what it contains’.103 Far from posing a challenge
to the terms of the global economy, the NIEO can be said to have done its
share in reinforcing it. If, as Herb Addo and others suggested, we are interested
in transformation not reformation, then we need to judge the newness of the
new order ‘on the extent to which the newness amounts to a radical departure
from the world capitalist historic theme of capital accumulation in pursuit of
the world capitalist historic motives . . . and the conflicts they engender, both
at the national and international levels: the movement from an exploitative
and therefore dehumanizing world-system to a non-exploitative and therefore
100 See, for example, ME Salomon, ‘From NIEO to Now and the Unfinishable Story
of Economic Justice’ (2013) 62 ICLQ 31; DP Fidler, ‘Revolt Against or from Within the
West: TWAIL, the Developing World, and the Future Direction of International Law’ (2003) 2
Chinese Journal of International Law 41; S Pahuja, Decolonising International Law: Development,
Economic Growth and the Politics of Universality (CUP 2011), as well as; JT Gathii, ‘Third World
Approaches to International Economic Governance’ in R Falk, B Rajagopal, and J Stevens (eds),
International Law and the Third World: Reshaping Justice (Routledge 2008) 255.
101 BS Chimni, ‘The Principle of Permanent Sovereignty over Natural Resources: Toward a Radical
Interpretation’ (1998) 38 Indian Journal of International Law 208; AG Frank, ‘Rhetoric and Reality of
the New International Economic Order’ in Addo (n 99) 165.
102 See Salomon (n 100). But in highlighting some of the results of the struggle for PSNR, see
Chapter 3 which explains that, ‘permanent sovereignty over natural resources’ did pass into the
constitutional provisions of the major resource exporting nations of the developing world, with
these constitutional formulations vesting natural resources in the people of the state, not in the
state itself.
103 Pahuja (n 100) 125; G Abi-Saab, ‘Permanent Sovereignty over Natural Resources’ in M Bedjaoui
(ed), International Law: Achievements and Prospects (UNESCO/Martinus Nijhoff 1991) 600.
humanizing world-system’.104 It is a perfectly reasonable proposition that had
the NIEO been successful, it would have in any case served to reinforce the
contested terms upon which the world economy was operating.
If the ideas and practice of NIEO did not take the world and its disenfranchised
where many hoped it would, it did take us somewhere notable. The NIEO was a
rejection of colonialism (even if not of an imperialist international law);105 it rep-
resented an effort to assert the sovereign autonomy of the non-western world; and
it was an attempt to redirect international economic governance towards distribu-
tional equity and fairness.106 It also exemplified precisely why different legal regimes
cannot exist in isolation, presaging the subsequent focus on linking human rights
and development and the importance of duties of international cooperation to those
ends.107 If the NIEO initiative can be criticized for being ‘reformist and capital-
ist’,108 it could also be said to have represented a form of ‘socialism among states’;109
certainly the vision and efforts by lead UN economists of the day were directed at
a socialist form of globalization.110 As is well known, the Second and Third World
internationalism of the time faced active resistance by the United States and other
colonial powers. And while imperialism had been deeply contested by jurists from
across the globe, powerful interests continued to work against transformation, as
did wider developments in global capitalism that saw the steep rise of neoliberalism
in the 1980s and early 1990s. Although there were challenges that worked against
radical change both from within the movement and from outside of it, the call for
a New International Economic Order was, as Samir Amin points out, rebellion just
the same.111
104 H Addo, ‘Introduction: Pertinent Questions about the NIEO’ in Addo (n 99) 1, 4.
105 For a detailed exploration of the imperialist roots of international law, see A Anghie, Imperialism,
Sovereignty and the Making of International Law (CUP 2004).
106 For a consideration of the way in which ideas of the NIEO serve to animate the positions of
developing states today, see Chapter 3 (‘The End of Empire and the Search for Justice: The NIEO and
Beyond’). For example, the push for control of multinational corporations through hard law, a project
that has now been revived by Ecuador and South Africa within the UN Human Rights Council.
107 Salomon (n 100) 49.
108 See J Bockman, ‘Socialist Globalization against Capitalist Neocolonialism: The Economic Ideas
behind the New International Economic Order’ Humanity (Spring 2015) 109, 118ff.
109 N Gilman, ‘The New International Economic Order: A Reintroduction’ Humanity (Spring
2015) 1, 4.
110 Bockman on Raúl Prebisch as the head of UNCTAD and Jan Tinbergen, a lead economist at
the UN. Bockman (n 108) 119ff. Bockman writes that, ‘UNCTAD assumed a normative or anticipa-
tory socialism within a truly interconnected global economy of free markets, the endless flow of trade,
finance, and people, universal trade laws that apply to all, as well as universal participation, the end
of corporations, and so on. It was not clear how to get to this new world: through a social planner,
through a revolutionary like Che, or through diplomatic agreement on multilateral laws? In any case,
UNCTAD’s vision of a truly global economy required a social restructuring of the existing neo-colonial
world system’ (ibid 121).
111 Addo (n 104) 11; S Amin, ‘Self-Reliance and the New International Economic Order’ in
Addo (n 99) 204. Addo draws an interesting distinction between ‘anti-regime forces that may contrib-
ute to the transformation of the system but are not necessarily anti-systemic forces’. Addo (n 104) 15,
emphasis in the original. Gathii drawing on Chimni offers a global justice lens through which to con-
sider the contribution of the NIEO and suggests that looking at the principle of permanent sovereignty
over natural resources from a material, rather than a formal or statist perspective, ‘would acknowledge
International Law to the Ends of Justice? 25
To be sure, to acknowledge the failures of the NIEO is not the same as disregard-
ing its contributions. As BS Chimni rightly points out in his own critical account of
international law and institutions, we need to be alive to the different historical and
political contexts within which attempts at renewal take place, and their differential
social impacts, lest we ‘privilege form over content and conflate different historical
and political conjectures’.112 To query whether NIEO was transformative is not
to question the drive of Second and Third World internationalists behind NIEO
who sought to challenge the unfair rules of international economic governance to
meet their development needs following the retreat of formal colonialism.113 That
they hitched their claims to the vehicle of international law that had served them so
badly over centuries was a result not least of protecting their hard won sovereignty,
even if it was a central concept of European international law that had long worked
against them. Historical critique is always imbued with the extravagance of distance
and the arrogance of detachment; the NIEO was surely radical for its time and,
indeed, there has hardly been a more notable undertaking aimed at international
solidarity since.
Any search for norms of justice today may not involve the revival of the norms
of the NIEO but may well draw inspiration from them. Be that as it may, if we
are to care also about consequences, which is essential if the realization of just-
ice is really to matter, then judging the impact of international law on peasants,
the poor and other subaltern people is a telling exercise, as is whether it provides
accountability to the people who are wrongly affected by its rules, interpretations,
and effects.114 Through this empirical lens, it is easy to conclude that much of
international law in the area of economic governance can only be defined as
an ongoing project of immiseration, tethered as it continues to be to economic
globalization.
The picture painted so far is one of the subordination of peoples to the econ-
omy with a snapshot of international law’s role in that endeavour and the NIEO’s
efforts at overcoming that subordination. The place to begin a study of inter-
national human rights law and immiseration is merely to recognize that it is under
the terms of global capitalism that human rights operate. Before we probe how
human rights can create more just societies, we must first expose the ways in which
they are a reflection of those societies and, crucially, how they assist in reproducing
the underlying terms of immiseration that will ensure human rights protection
its original motivation in addressing the inequities of resource exploitation between alien colonial rul-
ers and formerly colonised peoples’. Gathii (n 100) 261.
112 BS Chimni, ‘International Institutions Today: An Imperial Global State in the Making’ (2004)
15 EJIL 1, 30.
113 For a concise and thoughtful overview of Second and Third World efforts to challenge inter-
national economic governance, see Gathii (n 100); Salomon (n 100).
114 The lower middle classes of the rich world are also bearing the brunt of economic globalization,
but one might take a different approach to the consideration of victims in rich and powerful countries
in that those countries play a significant role in shaping globalization and have the domestic resources
to mitigate its worst effects at home.
is forever necessary. While international human rights law has played a role in
addressing socio-economic harms and increasingly it has sought to confront the
immiserating structural features of the global economy, there are still important
questions to be asked as to the ways in which human rights work against a trans-
formative or radical agenda, to the detriment of their own aims and objectives. We
are interested herein not only in how human rights are being circumscribed by the
logic and force of contemporary capitalism, nor how their terms are challenged
and misappropriated to those ends, but also how they are co-opted in sustaining
capitalism through their perceived successes. As explored in Chapter 7, a far greater
awareness is required as to how the interpretation of international human rights
law within an era of global neoliberalism sees growth fetishized as an essential pre-
condition of human betterment and how distributional and ecological violence
prefigure seemingly progressive social policies. The interpretation and application
of international human rights law has a foremost function under conditions of
economic globalization: to ensure that its terms do not help to reproduce the
violent appropriations that sustain globalization. This would offer an important
first step in the ‘neutral’ application of socio-economic rights, as has long been
their claim.115 The subversion of human rights to the predilections of capitalism
invites in Chapter 7 a consideration of the place of economic growth in human
rights law, the reproduction of harms under the social protection floors initia-
tive, as well as the fate of human rights most cosmopolitan effort—obligations
of international cooperation. When it comes to advancing extraterritorial human
rights obligations, including obligations of international cooperation in the area
of socio-economic rights and earlier as part of the right to development, this sub-
version is clearly at work. Three decades ago, the seminal doctrine of international
cooperation under the right to development drew attention to the complemen-
tary duties of the international community to right-holders generally, given the
emerging implications of economic interdependence. But, as has become evident,
it is precisely its demands of international cooperation for structural change that
have left the right to development as the most contentious and least operation-
alized of all human rights. The doctrinal and operational underdevelopment of
these obligations are not to be excused merely as part of the evolving promise of
international human rights law; more accurately, it is a reflection of the past and
current limits of international politics to transform the ‘deep global structures’ of
the international political economy in favour of new beneficiaries. Obligations of
international cooperation aimed at people-centred development and socio-eco-
nomic rights is a radical idea and, as the human rights chapter submits, it is pre-
cisely its radical prospect that has undermined its potential. Put differently, the
threat we face today is that while international human rights lawyering is far from
silent about the structural obstacles to justice, those efforts are hardly recognized
outside of their own epistemic community.
115 CESCR, General Comment No 3, The Nature of States Parties’ Obligations, Art 2(1) UN Doc
E/1991/23 (1990), annex III, para 8.
Stories We Like to Tell 27
There may be a combination of factors that contribute to this state of affairs, not
least the revival of the TINA doctrine—the idea that ‘there is no alternative’ to neo-
liberalism.116 The prevailing view is that the current system serves us all best and the
recent economic and financial crisis has not dramatically altered that perspective
nor its central practices.117 One of the many distortions to come from TINA’s dis-
regard for alternatives is that what has come to be referred to as ‘radical’ today tends
really to be very elementary: calls for a dignified existence whereby joined up insti-
tutions and policies would ensure that no one would starve to death in a world in
which there is an abundance of food, or die for lack of medicine where a sufficient
supply is available or be denied a life of possibility. It is indicative of how very far
we have strayed from a humane global society that bringing economic forces under
rational control118 is reasoned to be irrational.119
4. The Stories We Like to Tell
This book unites a grave disaffection with the state of the world and the inescapable
conclusion that international law is negatively implicated. That international law
has offered a platform for the vindication of human rights, that at times it serves the
underdog, and that it might demonstrate shifts towards resisting its extreme capit-
alist proclivities, does not weaken that central critique. In fact, the recent backlash
116 The very language of neoliberalism supports the TINA doctrine: the ‘free market’ is ‘a term that
suggests a natural, non-political ordering process that operates independently of human will. Thus,
standards appropriate to the exercise of public power are made to appear inapplicable.’ BR Roth,
‘Marxian Insights for the Human Rights Project’ in Marks (n 72, International Law on the Left) 220,
235–36. Similarly, the risks associated with the current global financial architecture are accepted as a
fait accompli, a danger we have to live with, as if capital markets were inevitable, when they are really
just legal constructions—see Chapter 6 (‘Global Finance’). An aspect of the TINA doctrine is also
explored in Chapter 2, 71–73, in its consideration of exploitation. For example, if the caloric intake of a
slave is increased, she is still a slave. Another example is sweatshop labour and other substandard labour
conditions—one could argue people are ‘better off’ making low wages in bad working conditions—but
it is still taking advantage of their situation which is exploitative.
117 Wade remarks that this is contrary to the pattern in earlier bouts of hard times. RH Wade,
‘Capitalism and Democracy at Cross-Purposes’ (2013) 28 New Zealand Sociology 208, 211. Note, for
example, the widespread adoption of fiscal contraction (austerity) in much of the western world as well as
in the developing world; the capture by the wealthiest 1% in the United States of 95% of post-financial
crisis growth since 2009, while the bottom 90% became poorer. The World Top Incomes Database, http://
topincomes.g-mond.parisschoolofeconomics.eu and http://www.oxfam.org/sites/www.oxfam.org/
files/bp-working-for-few-political-capture-economic-inequality-200114-summ-en.pdf. See, generally,
C Crouch, The Strange Non-death of Neoliberalism (Polity 2011) as well as (the excellent piece on fas-
cism and neoliberalism by) AS Chaudhary and R Chappe, ‘The Supermanagerial Reich’ Los Angeles
Review of Books (7 Nov 2016): ‘Neoliberalism has now clearly outlasted the 2008 financial crisis, and
further consolidated and entrenched both its forms of governance and the concentration of wealth and
income for the top 0.1 percent.’
118 Roth (n 116) 249 provides (in a somewhat different context) this idea of ‘bringing economic
forces under rational control’ as a feature of a socialist society.
119 Gill drawing on Gramsci speaks of the terms that make up the ‘neo-liberal common sense’ to be
contrasted with ‘good sense’. S Gill, ‘Market Civilization, New Constitutionalism and World Order’
in Gill and Cutler (n 32) 29, 30.
against bilateral investment treaties by some capital-importing states (besides the
fact these challenges to instruments of neoliberal orthodoxy can be reversed with
a change of government)120 and attempts in the past years by European debtor
states to resist neoliberal conditionality at the hands of public international lenders,
demonstrate the power and influence of ‘disciplinary neoliberalism’121 as much as
anything else. Stephen Gill is right to define the constitutive features of the con-
temporary civilization as ‘the institutionalization of a hierarchical, disciplinary, and
materially unequal world order increasingly dominated by capital’.122
Arguments that we have moved from a reified state-centric world view to one
in which ‘individuals are the hub around which international law revolves’123 and
towards global governance based on accountability standards such as a transpar-
ency, participation, and reasoned decisions point to that which we might aspire
rather than what practice tends to demonstrate. In the international realm, state
action fails quite systematically to provide evidence of the actual wishes of most
people and certainly not the people most affected by those decisions.124 There is
neither the appearance of fairness nor is there fair practice when it comes to the
social consequences of economic globalization’s processes and outcomes. The prin-
ciples of best practice in global governance—if they can be said here and there
meaningfully to be exercised—are simply bypassed when edicts of neoliberalism
require it,125 or are directed by those edicts in subtle ways that mask the methods
by which power is retained and reinforced.126 A more accurate description of the
defining feature of global governance under international law today is the absence
of accountability not least of international institutions, their member states, as well
as their staff for the impact of decisions.127
120 D Schneiderman, ‘How to Govern Differently: Neo- liberalism, New Constitutionalism

and International Investment Law’ in Gill and Cutler (n 32) 165, 175–78 (‘Rolling back new
constitutionalism’).
121 ‘[T]‌he power and discipline of capital in social relations.’ Gill (n 119) 29.
122 ibid 30.
123 Dunoff and Trachtman on the ‘Constitutionalization of International Law’ thesis. J Dunoff and JP
Trachtman, ‘The Lotus Eaters’ (Debate) in J Klabbers, A Peters, and G Ulfstein, The Constitutionalization
of International Law (OUP 2011) 369, 370.
124 In contrast here to the point made by Dunoff and Trachtman that ‘[T]‌he best evidence of indi-
viduals’ actual wishes today is still derived inductively from state action’ (ibid 372).
125 For coverage of a recent and egregious example, see ‘The IMF and the Crisis in Greece, Ireland,
and Portugal: An Evaluation by the Independent Evaluation Office’ (8 July 2016); and further
Chapter 6 (‘Global Finance’).
126 See the rich literature on indicators and global governance, for example: SE Merry, ‘Measuring
the World: Indicators, Human Rights and Global Governance’ (2011) 52(S3) Current Anthropology
83; K Davis, A Fisher, B Kingsbury, and SE Merry (eds), Governance by Indicators: Global Power through
Classification and Ranking (OUP 2012).
127 Chimni’s critiques in 2004 of international financial and development institutions could have
equally been written today, thirteen years later, without having changed a word: ‘II’s [international
institutions] are [ . . . ] not accountable to the people who are affected by their decisions . . . It is said that
states establish IIs and therefore remain responsible for their acts of omission and commission . . . There
is, in addition, the problem that IIs are modern bureaucracies that exclude the possibility of ascribing
individual responsibility for acts of omission and commission . . . A myriad small decisions are taken
and advanced for which no one in particular is responsible . . . Structural adjustment policies can have
devastating consequences for the peoples of the country on which they are imposed, yet no one state
or individual or set of individuals can be assigned the authorship of these programmes making IIs the
Stories We Like to Tell 29
The possibility that we have entered an era defined by a process of consti-

tutionalization at the international level that would offer ‘a protected public
realm’, that is, it would ‘put a fence around the public, and protect it as well
as it can’ is but a welcome dream.128 It is no exaggeration to say that what
we have today is the economization of all aspects of life where no realm is
left untouched by neoliberal reasoning;129 globalization is creating pressures
towards common ‘constitutional’ norms such as the right to property and its
protection in international investment and international trade and a contract
model for international economic law that does not require that the interests
of the other party or wider public interests are taken into account. Instead, the
aim of such contracting parties is to extract as much from the bargain as pos-
sible for themselves.130 Governance principles have been subverted such that
what constitutes ‘good governance’ is ensuring the sanctity of private prop-
erty whereas ‘the rule of law’ is meant to provide stability for foreign invest-
ors. These are among the dominant global values today. The rise of norms
and practices meant to shore up private gain, more than any other develop-
ment, explains much of the world today. To recognize constitutionalism as ‘the
philosophy of striving towards some form of political legitimacy typified by
perfect vehicle for the exploitation and dominance of subaltern states and peoples.’ Chimni (n 112) esp
19 and 21–22, emphasis in the original. For a recent account of many of the same legal obstacles,
see ME Salomon and O De Schutter, ‘Economic Policy Conditionality, Socio-Economic Rights and
International Legal Responsibility: The Case of Greece 2010–2015’ legal brief prepared for the Special
Committee of the Hellenic Parliament on the Audit of the Greek Debt (15 June 2015), http://www.
lse.ac.uk/humanRights/documents/2015/SalomonDeSchutterGreekDebtTruth.pdf
128 J Klabbers, ‘Setting the Scene’ in J Klabbers, A Peters, and G Ulfstein (eds), The
Constitutionalization of International Law (OUP 2011) 1, 19. In pointing to these ripostes that consti-
tutionalization offers, that book works from the assumption that constitutionalization ‘is indeed taking
place, however much in fits and starts perhaps’ while the author acknowledges that ‘no miracles should
be expected’ (ibid 4 and 19). As Susan Marks warns us, we need to be aware of ‘the temptation we all
face to analyse events as stories of progress’, ‘Naming Global Administrative Law’ (2005) 37 New York
University Journal of International Law and Politics 995, 997. At the level of the European Union, the
debt, austerity, and social rights crisis, the vociferous efforts by civil society to make transparent the
Transatlantic Trade and Partnership (TTIP) negotiations and to challenge its core terms, along with
the Brexit referendum decision suggests, at a minimum, that Europe is equally engaged in an exercise
of ‘disciplinary neoliberalism’ while necessarily failing to represent the will of the people.
129 See notably Wendy Brown’s recent work on the ubiquity of neoliberal reasoning. Brown
(n 29) 17.
130 As addressed in Chapter 4 on the trade treaty as contract: parties to a contract bargain for the
best result they can obtain. They are free to be self-interested; it is entirely permissible and expected
that they be so. They are not required to be impartial or to take the interests of the other parties into
account. They do not have to comply with the moral conditions of reasonable acceptance by all par-
ties or justify their position to others. Contracting parties, moreover, are free to take full advantage of
disparities in bargaining power or inequalities between the parties. The aim of such contracting parties
is to extract as much rent as possible from the bargain for themselves. As addressed in Chapter 6, in
the area of sovereign debt, the legal system governs seemingly private activities as if those activities are
purely a matter of contract and exchange despite their enormous public significance. In global finance
more generally, the risk is not only between the parties to a transaction. It is not simply risk between
the buyers and sellers of financial products. It is systemic risk. Systemic financial risk imposes ‘negative
externalities’ on persons who have nothing to do with the financial practices causing the risk and who
often have no stake in any potential gains accumulating from these practices.
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The Misery Of International Law:

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International Law and Development in the Global South

The Oxford Handbook of the International Law of Global

The Concept of an International Organization in

The Function of Equity in International Law Catharine

International Business: The Challenges of

The Many Paths of Change in International Law Nico

International Law of Taxation (Elements of

Purging the Odious Scourge of Atrocities: The Limits of

1. The Legal Rendering of Immiseration 1

Select Bibliography 275

Immiseration: the act of making miserable; especially impoverishment

The international economic order is unjust. It continues to reflect the dominance

suggest the broad-​minded reader is limited merely to imagining the possibilities

1. Neoliberal Capitalism: Fact, Fiction, Harms, and Alienations

Neoliberalism represents a distinct ideology emphasizing the importance of some

15 See ME Salomon and C Arnott, ‘Better Development Decision-​Making: Applying International

most progress occurring since 2000’, http://​www.un.org/​sustainabledevelopment/​blog/​2015/​12/​

destruction of non-​market access to food and self-​sustenance.58 As Henrietta

catastrophic losses. It is trite to suggest that globalization was oversold, in many

2. The Determinacy of International Law

3. International Law to the Ends of Justice: NIEO

4. The Stories We Like to Tell

120 D Schneiderman, ‘How to Govern Differently: Neo-​ liberalism, New Constitutionalism

The possibility that we have entered an era defined by a process of consti-

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suggest the broad-minded reader is limited merely to imagining the possibilities

15 See ME Salomon and C Arnott, ‘Better Development Decision-Making: Applying International

most progress occurring since 2000’, http://www.un.org/sustainabledevelopment/blog/2015/12/

destruction of non-market access to food and self-sustenance.58 As Henrietta

120 D Schneiderman, ‘How to Govern Differently: Neo- liberalism, New Constitutionalism