Table Of ContentTHE MISERY OF INTERNATIONAL LAW
The Misery
of International Law
Confrontations with Injustice in the Global Economy
JOHN LINARELLI,
MARGOT E SALOMON,
and
MUTHUCUMARASWAMY SORNARAJAH
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 authors have 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
British Library Cataloguing in Publication Data
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
