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Article Excerpt
CONTENTS
I Introduction II The Past A History as Foundational Critique III The Present A The Divided Self B Globalisation of Alienation C The Alienation of Discipline IV The Future A Fragmentation versus Unity B Transformation into Internal Law C Character of Emerging Global State and Law D Tasks before International Lawyers 1 Revisiting History of International Law 2 Engaging with Issues of Global Justice 3 Preserving Alternative Notions of 'Good Life' 4 Mobilising Legal Resources against Violence V Final Remarks
I INTRODUCTION
A third world approach to international law, or TWAIL as it has come to be known, represents in general an attempt to understand the history, structure and process of international law from the perspective of third world states. (1) A critical third world approach goes further and gives meaning to international law in the context of the lived experiences of the ordinary peoples of the third world in order to transform it into an international law of emancipation. It has as its primary goal the shaping of an international law that offers a life of dignity for the poor and oppressed in the third world. It is amidst this hope that I take a sweeping look at the past, present and future of international law.
The thread that will bind the disparate fragments, and it cannot be more than this, is the broad theme of the alienation of international law from the peoples of the third world. I use the term 'alienation' to denote aspects of the estranged relationship between individuals, societies and nature, regulated by international law under capitalism as it has evolved since the 16th century. When I speak of the future of international law, I will, besides touching upon the transformation of international law into internal law and the emergence of a Global State, make a few remarks on the role of international lawyers in addressing this alienation. First, however, let me turn to the past of international law.
II THE PAST
The road to the future, it is said, winds its way through the past. It explains why the history of international law has been the subject of uninterrupted examination by third world scholars in the post-colonial period. There is a clear realisation that, in order to transform the present and future of international law, the past must be understood in all its complexity.
As the decolonisation process gained strength in the middle of the last century, third world scholars began to challenge the parochial and celebratory history of international law written by Western scholars. In the 1960s and 1970s, scholars such as R P Anand, Judge T O Elias, Judge Nagendra Singh, S P Sinha, J J G Syatauw and others undertook this invaluable critical task. (2) Some Western scholars such as C H Alexandrowicz, for several years a Professor of International Law at Madras University in India, joined hands and produced pioneering work. His book, An Introduction to the History of the Law of Nations in the East Indies, remains a seminal text to dispel the idea that the non-Western world was unfamiliar with international legal practices in the pre-colonial era. (3) It forms an integral part of the collective project, first, to contest the understanding that international law was simply a product of European Christian civilisation. (4)
The historical task was, second, undertaken to show how the development of international law since the 16th century was linked to the colonial project. The rules of international law in crucial areas, such as laws relating to the acquisition of territory, recognition, state responsibility and state succession, were shaped by the necessities of colonialism. (5) The alienation of international law from the peoples of the third world was epitomised in the civilisation/barbarian divide that made them and their territory into objects of international law. (6) If third world peoples ever metamorphosed into subjects of international law, it was only ever to surrender sovereignty to colonial masters. (7) The moment of empowerment was the moment of complete subjection. It was a time of absolute alienation of third world peoples from international law. Death, destruction, pillage, plunder and humiliation are the key words that best capture the relationship between third world peoples and international law in this period. The relationship between colonialism and nature was no different in essence. Imperialism subjugated both peoples and nature in equal measure.
The historical critique in the early post-colonial period, whether of the provincial history of international law or its complicity with colonialism, was not undertaken simply to repudiate international law. It was part of an effort to produce universal international law. (8) Thus, for example, Judge Weeramantry in his dissenting opinion in the Nuclear Weapons advisory opinion case recorded at length the strong presence of international humanitarian laws in non-Western cultures, arguing that this recognition greatly strengthened their normative pull. (9) A quarter century earlier, in his separate opinion in the Barcelona Traction case, Judge Ammoun noted that '[t]he development of international law cannot ... have as its sole or principal object the protection of ... international economic activities of the industrialized Powers'. (10) He urged a move to 'universalism', with international law adapting itself 'to avoid confrontation between peoples' in order to realise 'common ... ideals of prosperity and peace'. (11) Contrast these sentiments with the fact that, for Western states, 'universality' is a device that is adopted or rejected in relation to the demands of dominance. Be it international humanitarian laws, the latest instance being in Iraq, or international economic laws that codify only the rights of transnational corporations, (12) the Western world embraces a divisive universalism.
A History as Foundational Critique
The dismal experience of the vast majority of third world peoples and states in recasting colonial international law as universal international law in the last six decades has compelled a new generation of scholars to revisit the history of international law in a bid to find answers. The new scholarship offers a foundational critique of the history of international law. In this view, the early scholarship tended to treat the colonial encounter as marginal to the story of international law. (13) In contrast, Anghie, in his recent book Sovereignty, Imperialism and the Making of International Law, situates the colonial project at the very heart of international law. (14) He ably demonstrates how international law continually reproduces a 'dynamic of difference' that characterised the colonial civilised/barbarian distinction. (15) Doctrines ranging from the minimum standard of civilisation to the current idea of good governance all testify to this reality. (16)
It is therefore not easy to rid modern international law of its retrograde doctrines and practices. Thus, for instance, the doctrine of sources of international law poses an insurmountable obstacle to inaugurate a new international law. I recall in the 1970s a sense of bewilderment among third world scholars that resolutions, adopted by the United Nations General Assembly after long deliberation by a predominant majority of states and peoples, could not bring about any change in the body of international law. Judge Bedjaoui consequently termed the doctrine of sources 'legal paganism', observing that it turned 'law into a new religion centred on itself'. (17) Alienation is thus inscribed at the very heart of international law.
The failure of the first generation of third world scholars to capture the intimate relationship between colonialism and international law also meant, on the other side, the omission to critique the post-colonial state as it was only imagined as an agent of emancipation. The early scholarship ignored, to borrow the words of Partha Chatterjee, 'the world of differences, of conflict, of the struggle between classes' in the post-colonial state. (18) It did not, therefore, come to grips with the fact that many post-colonial states soon came to play a comprador role. It also did not notice the linguistic shift in the 1970s, assigning permanent sovereignty over natural resources to states instead of peoples. (9) Nor did this early scholarship understand the significance of the attacks in the 1960s and 1970s by repressive states against working class movements that demanded, among other things, greater democratisation of international relations and law. Unsurprisingly, therefore, it did not protest the subversion of the democratically elected Allende regime in Chile. In short, the failure of early...
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