Journal Article

The State and International Law: A Reading from the Global South

Pahuja, Sundhya, Eslava, Luis

2020

Overview

International interventions of all kinds-humanitarian, military, developmental, and financial-are usually predicated on the idea that a state, which has emerged endogenously from \"the people\" \"within,\" is being \"assisted\" from \"outside\"-to develop, to overcome civil war, to govern itself better. Such interventions are neither imagined nor constructed in law as actions that impose and stabilize a legal form, \"the nation-state,\" from \"outside,\" disciplining it from \"within,\" to actualize and maintain that particular form. Indeed, the authority of international law as well as the operation of the international legal order relies on the twin myths that ground this reading: first, that states are independent juridical institutional formations that come into being once they are formed in \"fact\" and which are only later \"recognized\" as a matter of international law; and second, that sovereign states come before a law that they have consensually created.2 A classic textbook statement reflecting this mythic grounding might be, \"In international law ... it is the states themselves that create the law and obey or disobey it.\"3 And yet this predicate is not only mythic but fictional: a fiction that conceals the world-making-via state-making-work of international law and institutions. This work is now intensifying in both scope and violence.In this essay, we redescribe the relationship between international law and the state, reversing the imagined directionality of the flow that sequences nation-states coming first and international law second.5 At its most provocative, our argument is that, rather than international law being a creation of the state, making and remaking the state is a project of international law. We pay particular attention here to the institutionalized project of development in order to illuminate the ways in which international law creates and maintains nation-states, and then recirculates from a multiplicity of points \"within\" them.6 Understanding this process is particularly important when trying to make sense of the pasts and presents of the Global South, but is increasingly relevant to understanding reconfigurations of states in the north, too.

• Publisher: University of Pennsylvania Press
• Subject: 19th century / Civil war / Humanitarianism / International / International law / Intervention / Law / Mythology / Nation states / Politics / Postcolonialism / Predicate / Public finance / Sequences / State