Theorising A ‘Sacrificial’ International: The Persisting Imperial Violence of Law
2.4 The Sacrificial Orientation of Universalism
The concept of a ‘sacrificial’ international law problematizes international law’s universality. A notion of sacrifice offers insight into the role that legal violence plays into what Sundhya Pahuja calls ‘the operationalisation of universality’, by which she refers to ‘how a meaning for the universal is produced through and within international law, both institutionally and conceptually, and how this meaning is held, or stabilised, in that ‘universal’ position.’99 This differs from simply an argument that dismisses the universality of international law as just another particularism. It is a recognition that international law is, in a certain way, universal. The drug laws, with their near total compliance amongst all governments provide an example of this form of universalism. Post-colonial theory has done the necessary work of arguing that the universalism of the West as just another particularism. However, what the theoretical focus of this thesis seeks to address is what sustains this operative universality if it is not an authentic product of a universal, humanitarian consensus as the mainstream liberal history of the twentieth century would suggest. With the emergence of universalism becoming particularly insistent following the post-war dissolution of the colonial division in world ordering, I ask what is the universal figure on which international law, such as the project of drug prohibition, is grounded? This question, particularly when examining the provisions of the drug prohibition treaties, points us towards an idealised human subject that international law invokes as a conceptual grounding. In the legal order of the late twentieth century, an ideal image of humanity informs notions of international human rights law, international humanitarian law and international crimes against humanity. This image of humanity was, in terms of its historical production and defining cultural characteristics, distinctly western, an image of humanity that Frantz Fanon’s describes as ‘homo occidentalis’100 However, it continued to operate as universal in spite of this. Scholars have critiqued the
97 Ibid., p.51.
98 See Judith Butler, Frames of War: When is Life Grievable? (London: Verso, 2015). 99 Pahuja, Decolonising International Law, p.16.
presumption that the claims to universality invoked by international law do in fact capture of something truly universal amongst all humans, cultures and societies; instead they argue that international law is prone to take a specific form of humanity and arrogate it into a condition of universality.101 However, I argue that still under- theorised within this critique is the role the legal violence plays in producing that universality. The concept of sacrifice as I offer it describes the process of legal violence being licensed upon a particular subjectivity-that of the negation of humanity, of the non-human- in order to cohere a universal. As Judith Butler has stated, ‘the problem is not with universality as such but with an operation of universality.’102 The subsequent chapters of this thesis read the history of international drug prohibition as a particular ideal of social relations and social practices developed in the West, specifically by the moral crusaders of the U.S.A, arrogated by international law into the position as universal, all the while taking seriously the question of how prohibition attained operation as a universal truth discourse. The drug war provides a telling narrative setting and a historical backdrop against which to explore these wider fundamental questions about how international law coheres itself. Returning to the specific example of international legal violence that functions as my primary focus, the War on Drugs, I argue, provides a telling instantiation of the relationship between sacrificial violence and international law. A review of the populations who stand as primary victims of the drug war immediately betrays a connection with the former colonial populations and racially subaltern subjects who served as the underside to European modernity. The damage that the drug war has caused to Amerindian, African-American and ‘oriental’ populations encourages a tying-together of Fanon’s account of international order emerging through violence against the colonised, with Girard’s schematic of a sacrificial mechanism hidden underneath communal social order. Girard tells us how ‘the prohibitions that appear arbitrary stem neither from some sort of "neurosis" nor from the resentment of grumpy men eager to prevent young people from having a good time’ but are rather the attempt to ritualise a norm that can be the basis of social order.103 Through this theoretical lens we can understand prohibitions that may immediately appear
101 For scholarship that has focused on how international law’s conceptualisation of humanity can based on exclusion, see for instance Shelly Wright, International Human Rights, Decolonization and Globalization: Becoming Human (London: Routledge, 2001).
102 Judith Butler, Giving an Account of Oneself (New York: Fordham University Press, 2005), p.6. 103 René Girard, I See Satan Fall Like Lightning (trans. James G. Williams) (Macyknoll: Orbis Books, 2001), p.12.
arbitrary, such as the prohibition of specific psychoactive substances, masked attempts to keep the crescendo of mimetic violence at bay. As aforementioned in the introduction, only the most myopic of observers could ignore the asymmetry of the apportioning of the violence of the War on Drugs amongst the peoples of the world. Despite adopting a liberal posture, couched in terms of the impartiality and universality claimed of law, the international laws on drugs have disproportionately impacted specific categories and territories of peoples, and the makeup of its victims recalls the Fanonian category of ‘the damned.’
The international laws on drugs provide an archetypal, yet under-researched instantiation of the West-Non West dichotomy that TWAIL scholars have identified within the universal promise of international law. The impetus behind international law’s prohibition of drugs came from the desire of Western nations to control the fear of a growing demand for psychoactive substances amongst their population, with the treaties drafted so as to discriminate against the interests of producers and suppliers.104 Manderson illuminates the on-going tension between liberalism and drugs, stressing an anxiety inherent in law’s presumptions of “liberal individualism as a baseline of social policy, coupled with an identification of drugs […] as the corporeal manifestation of the virus that threatens it.’105 There are unarticulated binaries operating within the ostensible universality of international drug prohibition- a diametric opposition drawn between civilised human and the barbarous drugs, of rational thought against madness and hysteria, of the triumph of reason over submission to the appetite. These binaries are then pasted onto longer held discursive models of differences between races and regions of the earth. We can also read modernity’s poorly constructed sacred claims about human dominance over nature within these laws that demand the eradication of many naturally occurring substances.106 Yet, the drug laws themselves offer no ostensible indication of the difference that its application would cleave amongst the peoples of the world. Couched in the language of universal humanity, one would not, by merely reading the treaty, be made aware that the drafting process was dominated by hegemonic Western powers, who moulded the law to their own interests and particular notions of ideal
104 William McAllister, Drug Diplomacy in the Twentieth Century (London: Routledge, 2000), p.209. 105 Manderson, ‘Possessed: Drug Policy, Witchcraft And Belief’, p.56.
social ordering.107 Nor do the treaties governing the War on Drugs offer any
indication of the early drug prohibition, so indebted to the explicit racial prejudice that the New York Times would aid the movement for prohibition by printing scare stories of cocaine making ‘the negro’ impervious to bullets.108
2.5 Conclusion
This chapter has built on scholarship on the post-colonial element of international law to theorise its sacrificial structuring. Speaking to the productive force of international legal violence, Jennifer Beard articulates this argument in stating that, ‘international laws operate as a form of sanctioned violence to maintain the Westphalian system of sovereign states with an established order.109 However, moving beyond the post-colonial critique of liberal international law the notion of sacrifice offers an appreciation for the theological underpinnings of racialised legal violence for the cohering the communality of a diffuse international. Anghie focuses of how international law creates a subterranean distinction amongst peoples, critiquing the classical approach to international relations by stating how ‘a focus on the problem of order among sovereign states cannot illuminate the prior question of how certain states were excluded from the realm of sovereignty in the first place.’110 However, as Robert Knox identifies, the myopia within Anghie’s separation of the ‘dynamic of difference’ between the colonising/colonised worlds from the production of coherent order of an international community is that ‘it falsely assumes there is a duality between these two approaches’ when they are in fact ‘part of the same process of imperialism.’111 The theorisation of this process is what I have termed ‘sacrificial’ and it offers a lens through which to read the War on Drugs as a project of international law. My reading of the drug war follows the challenge Oscar Guardiola- Rivera’s sets for legal scholarship to reveal ‘the logic of exclusion and surrogate
107 Julia Buxton, The Political Economy of Narcotics: Production, consumption and global markets (London: Zed Books, 2013), p.2.
108 Williams, Edward Huntington, ‘Negro Cocaine Fiends Are The New Southern Menace’, The New York Times (February 8, 1914).
109 Jennifer Beard, ‘The International Law in Force’, Events: The Force of International Law (London: Routledge, 2011) p.27.
110 Anghie, ‘Finding the Peripheries’, p.6.
111 Robert Knox, ‘Race, Racialisation and Rivalry in the International Legal Order’, Anievas,
Manchanda, and Shilliam (eds.), Race and Racism in International Relations: Confronting the Global Colour Line (London: Routledge, 2015), p.185.
victimage at work in the functioning of the law.’112 The drug addict and drug
trafficker remain within the international community and thereby within the scope of international law, however the immorality attributed to these figures emphasises their complete otherness to any universalising notion of humanity, rendering them an infestation that must be purified for the community of ideal humans to realise itself. I choose to place my focus upon the idea of sacrifice because as concept, it shines a light on the relation between those who are the victims of legal violence- in this instance case exemplified by the victims of the global enforcement of drug prohibition known as the War on Drugs - and the coherence or, better yet, the communality produced through this legal violence.
The following chapters will unpack this history of drug prohibition as an international legal project. As I trace the historical trajectory of drug prohibition moving from a fringe idea to a governing norm over the course of a century, I will highlight the ways in which violence upon the subjectivity of the non-human- often embodied in the figure of the racial subaltern subject- informed the development of international law as its transitioned into a liberal, moral universalist posture. I will engage with the legal context that first birthed drug prohibition at the turn of the twentieth century, examining the liberal understanding of international law that influenced American internationalism, which in turn emboldened prohibitionists in their fledging efforts. This will require reviewing the influence of founding fathers of American international law such as James Brown Scott and Elihu Root, as well as the prohibitionists who worked under them, including Bishop Charles Henry Brent and Dr Hamilton Wright, in order to unpack the political and theoretical context in which drug prohibition was able to blossom as a legal project. However, prior to engaging with this twentieth-century story, the next chapter will unpack the philosophical antecedent that was recovered to anchor early American international law, the sixteenth-century jurisprudence of Francisco De Vitoria. Vitoria’s model of a universal legal framework to account for colonial relation between the Spanish and Amerindians at the start of European colonialism will be re-read as an early model of a ‘sacrificial’ international law that would later be an influence on American international law in the early 1900’s and, therefore, on the juridical context in which drug prohibition emerged. An examination of Vitoria’s key texts will illustrate how,
with his recovery providing the jurisprudential background to the birth of drug prohibition, the asymmetry in the violence of the drug war, becomes no longer arbitrary or contradictory, but reconcilable with a model of imperial violence accommodated within international law at its very conception.