other, community, international legal order, international law
There is a built-in paradox in the emergence of international law over the last decade as a core concern of academics and policy-makers. On the one hand, it is difficult to imagine any other period in history that has witnessed such a profusion of attempts to tame the anarchical society by hedging it in a straight-jacket of legalities. Throughout the 1990s, international conferences generated reams of treaties, codes, and agendas for action. International adjudicatory tribunals proliferated, and endeavored to give teeth to ideas and obligations hitherto thought to be essentially aspirational. And yet, the ability of international law to regulate state behavior has rarely been more suspect than it is today. The mono-optic lens through which the United States views the relevance of international law to the regulation of her global conduct – relevant when it confers on her a benefit, and irrelevant when it purports to constrain her – far from being exceptional, is actually illustrative of the approach taken by many members of the international society to international law. From Australia to Denmark, or Spain to Malaysia, and as a response to domestic political forces, unilateralism reigns supreme in the visitation of disabilities on immigrants. International society continues to distinguish substantively and substantially between nationals and “aliens,” citizens and non-citizens, insiders and outsiders, members of the community and the “other.” This essay discusses the role of the idea of the “other” in the construction of international law. It argues that far from existing in antithetical opposition, the frameworks of international legalisms popularized in the 1990s were built upon, and in fact would not be viable without, the explicit understanding that legalities are framed by reference to a constructed “other.” Rather than being aberrational, the tendency and capacity of powerful states to seek to use rules to bind others while exempting the application of such rules to themselves, are integral to international legal order, and notwithstanding the 1990s, this is no less true today than it was previously.