What is a third world approach to international law, what does it represent and what does it add to the existing literature of International Law? Is it useful to even ask these questions? This essay is an attempt to shed light of international law seen and perceived by ‘third world scholars’ in order to present a possible alternative that questions and criticizes the practices and beliefs of the existing international law. It is an attempt to understand the history, composition and development of international law from ‘below’.
A critical third world approach is an attempt to re-give sense to international law. A meaning that does not disregard the lives of the ordinary people. An approach that make the lives and experiences of the peoples of the world and the agencies of the subaltern real agents of change and emancipation. My argument here, according to this perspective is that the development of international law since the 16th century is strongly connected to the colonialism which can be seen in important areas, such as laws relating to the acquisition of territory, recognition, state responsibility and state succession. However, any post colonial or third world perspective is only an attempt with a historical critique to produce rather a universal international law.
2. Towards a Critical History
If we consider history as a critical means in this research, we will see how the colonial project is situated at the very heart of international law. This means that it is not possible today to separate modern international law from past doctrines and practices. One of the main obstacles in front of a universal international law from example is the dogma of sources of international law. In the 1970s for instance, third world scholars noticed that the resolutions, adopted by the United Nations General Assembly did not bring any change in the international law.
Paul Kennedy, Yale historian and author of “The Parliament of Man” and “The Rise and Fall of Great Powers,” reminds us in this book that the internal contradictions that exist at the UN today were present at creation, so to speak. Kennedy even notices that “any reform of the UN Charter, such as creating a standing army
or increasing the number of permanent members of the Security Council, must be approved by all five of the existing permanent members. However and over the years there have been endless commissions, reports, and proposals calling for structural reform at the UN, but none have succeeded in persuading the current five to change the status quo. One must concede that if the current
five cannot agree on reform, it would be even more difficult for a larger group.” Steve Bonta, the author of Inside the United Nations: A Critical Look at UN said in his book that “The UN is also promoted by misleading and even deliberately deceptive language, and is based on false and dangerous principle”. (P3)
In his last book he goes further and says that:
The UN founders’ objective was to create an organization that could take effective collective measures for the prevention and remove threats to the peace and suppression of acts of aggression or other breaches of the peace….the United Nations was to be a mechanism for the entire world to gang up on any country thought to be a threat.” Or, in other words, in good Communist fashion, the UN would bring peace to the world through war.
This negative or at least critical view about the workings of the United Nation where International Law is every thing but international is what made third world scholars and other post colonial theorists to present their perspective in an attempt to present an alternative or at least contribute to the making of this universal law that overlooked the subsequent struggles of the poor and marginal sections in the third world.
3. Between today and Tomorrow
Looking at the present of the International law with its divided self gives us a clearer picture although the new capitalist class tries to unify the world market through international law viewing the production of a unified global economic space as a historical task, which is exactly what the European national bourgeoisie did in producing a national economic space in the 18th and 19th centuries.
This divided self illustrates the incapacity of the International Law to deal with the global spread of alienation that underlie contemporary international relations. In his Article, “ l’Organisation des Etats Unis: Quel Avenir?”, Ali Ratsbeen argues that any ambitious reform for the UN and in the International Law is a real challenge to the member states because of the visions of unilateralism.”
To better describe the picture, Karl Marx in one of his early writings indicated four kinds of alienation: the alienation of human beings from nature; the alienation of humans from their own productive activity; the alienation of human beings from their ‘species being’; and the alienation of humans from each other. I think that this categorization illustrates very accurately the injustice of modern international law.
Today, the violence against nature represents is a real crisis: the problem of global warming and other cosmological troubles, man and nature are controlled and manipulated by market fundamentalism. International environmental law is unable to respond to this global ecological crisis. It works with an empty concept of sustainable development that is filled with the greed of global capital. Therefore, International environmental law, is today subordinated to corporate interests.
Alienation is also present in the policy of labour dislocation resulting in the physical and mental destruction of workers and their families especially when the flexibility policy is practiced in third world countries where there is no social security.
International law as it is today promoting the concept of welfare and prosperity that transform producers into commodities in the name of consumer choice which explains the centrality that the WTO has acquired in global life. On the other hand, international law seems incapable to guarantee the basic needs of humanity. The right to health for instance has been subjected to the market.
Now that the present seems not very promising, let us have a look at what we would like the future to be and whether the perspectives of the third worked scholars would make a difference. These scholars think that the fragmentation of international law is a real danger to global justice and peace. What makes it worse is the debate on whether international trade law should promote the free movement of goods and services or environment protection. In addition to that, debates between international lawyers usually with a western education and views on international law that are from making a real integrity for a real universal international law that has only be the specialty of western educated international lawyers.
Post modernity likewise and other similar absurd accounts look at this reality as a condition of a post modern world. However, from the perspective of third world peoples, this reality is the result of an alienated international law, and the narrow perspectives of a few disciplines that seem to ignore the complexity of humans as non-divisible economic, political and social selves. This is exactly what the third world scholars see as threatening and weakening at the same time a more global or universal approach and implementation of Internal Law that is supposed to be rather characterized by solidarity and unity rather than fragmentation.
The third world scholars don’t not stop here or just complain and give rather pessimistic descriptions of reality. They also suggest and give alternatives. They think that there many tasks before international lawyers to do if we are to look for alternatives and to resist the hegemony of international law as it is today. International law that we talked about and criticized before are now called to be more critical. They should revisit the histories of international law looking for a more balanced structure and work and discover how global justice could be achieved through international law.
It is no wander that the future of international law will also depend on the investigations on the imperial nature and colonial heritage of it that should not be let only to political scientists to explore. Global history has proved to be a very useful in both understanding and approaching phenomena and institutions and get better understood.
Historiography is now under investigation of global history and the past practices of international law are very likely to offer lessons, and correct mistakes and fill in lacunas and voids and account for shameful practices or sometimes point with fingers to this or that guilty cultural or political institutions. The link and conspiracy with colonialism have to be recognized and dealt with and re written in addition to all the resisting forces and the subaltern agencies and the everyday people who rejected this form of imperialism and who rather dreamed of and sought for a new history that we can safely call a global Law that does not favor any one to any one.
A democratic global history can only be possible if we revisit and unveil the discursive discriminating practices and the empire of the international law as a law that was not always international or global but rather ethnocentric, repressive and schizophrenic.
In his “International Law from Below: Development, social movements and Third World Resistance” Balakrishnan Rajagopal, MIT Professor presents another advice to international lawyers. His book offers a fundamental critique of twentieth-century international law from the perspective of Third World social movements, examining in detail the growth of two key components of modern international law – international institutions and human rights – in the context of changing historical patterns of Third World resistance. Using a historical and interdisciplinary approach, Rajagopal presents compelling evidence challenging debates on the evolution of norms and institutions, the meaning and nature of the Third World as well as the political economy of its involvement in the international system. At the heart of this investigation he places global justice at the heart of the debate.
4. International lawyers face their discipline
Since the international is rapidly becoming internal, international law student will have to link this discipline into a clear discourse of social justice and global justice. This should be the final aim and the motto of the discipline itself which would teach them about the silenced voices and the voices of the subaltern that always remain the weak voices for justice, equality, and human rights.
These lawyers should start from the belief that we don not live in a just world, what institutions and what ethical standards should we recognize and apply throughout the world?!
These are the questions. Asking these questions would lead an even greater audience to get involved in the issue where global economic relations will have to be redefined as well, the corporate sector will have to be more ethical and the capitalist greed will be obliged to be more transparent and accountable, social rights would be better protected, labour and health and the environment would become at the center of international law agendas. Citizenship will be a real drive to a fair international law, an international law of the people and for the people.
Good life then is not how the global capital defines it. A good life should not be dominated by capitalist and corporate forces that control the life of people and create their desires that are not real needs. International Lawyers are supposed to also take part in the reshaping of the norms and codes of the workings of these corporations and how their employees could be protected.
A good life should be maintained by justice not power where democracy, citizenship and civic engagement can take place. International law in its calls for cooperation should not forget the struggles and endeavors of the poor who live the real consequences of cooperation that they usually did not choose themselves but was rather imposed on them under many names.
Another important huge task for the international lawyers to take into account is to fight violence through international law. If a reform would take place in the capital world and social corporate responsibility will start to real mean what is says, violence would really happen here and there and thus our social relations would become better and more humane. International lawyers should formulate laws that would enforce such behaviours and commands. Having said that, international lawyers should also find ways to organize what I have been calling resistance all along this essay. Secterian violence should thus be dealt with as well as a kind of violence and the image problem that people have of each other and that is the accumulation of many indignations and dissatisfactions and injustices of the international law should also be understood and dealt with accordingly.
International law should learn from the past and history of its long presence not always very useful that violence and wars and sanctions have not really brought about any changes or changed any behaviors but rather aggravated them and created anger and injustice in many regions of the world.
Now that we have developed all these critical tasks and overviewed some third world alternatives and ideas of the functioning of international law, I would like to end by mentioning that this task is not an easy task but that requires participation and cooperation of sovereign states, change in educational curricula and media, participation of civil society that is already playing in the ground with democratization and human rights issues in addition to citizenship and development projects. The change in discipline itself is now clear to be a necessity. The billions of people that have long been victims of the theories and practices of the international law and the united nations resolutions that places like Rwanda, Somalia, Darfur, Sudan, Kosovo, Bosnia, Palestine and Irak proved its inadequacy and inability to bring about real change and justice need now to be remembered. This is what an international law from below would mean.
It is also high time to recognize that African States have contributed to the development of modern international law because despite its apparent marginalization in the international system, Africa can stake a valid claim to being part of the on-going process of shaping new rules and principles of international law while strengthening and democratizing existing ones. Some the results we will expect are the broadening of the refugee definition and the principle of non-refoulement in the area of refugee law; the rights of access and transit to the sea and the concept of the exclusive economic zone in the law of the sea; the principle of uti possidetis; the concept of `peoples’ rights’, as distinguished from that of `human rights’; the very expansion of the traditional categorization of human rights to embrace the so-called third generation rights, such as the right to development and, in general, certain principles in the area of international fluvial law concerning the common management and utilization of shared watercourses.
1. Bederman, D. International Law Frameworks. Thomson West Foundation Press, 2006.
2. Bonta, S. Inside the United Nations: A Critical Look at the UN. The John Birch Society. 2nd edition 2003.
Bonta, S. The UN Unmasked. The John Birch Society, 2005.
Bratton, Michael. “Beyond the State; Civil Society and Associational Life in Africa.”
World Politics 41.2 (1989): 429.
3. Dunnof, J. et al. International Law, Norms, Actors, Process: A Problem-oriented
4. Approach. Aspen Publishers, 2000.
5. Maluwa, T. International Law in Post-Colonial Africa. Kluwer Law International, 1999.
6. Rajagopal, B. International Law from Below: Development, Social Movements and Third World Resistance. Cambridge University Press, 2007.
Armstrong, D. International Law and International Relations. Cambridge University Press, 2007.
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