The Third World and International Order: Law, Politics and Globalization [45, 1 ed.] 9041121668, 9789041121660

Citation preview

THE THIRD WORLD AND INTERNATIONAL ORDER: LAW, POLITICS AND GLOBALIZATION

Developments in International Law VOLUME 45

The Third World and International Order: Law, Politics and Globalization

Edited by

ANTONY ANGHIE BHUPINDER CHIMNI KARIN MICKELSON OBIORA OKAFOR

MARTINUS NIJHOFF PUBLISHERS LEIDEN/ BOSTON

Published by: Brill Academic Publishers P.O. Box 9000, 2300 PA Leiden, The Netherlands [email protected] http://www.brill.nl

A C.I.P. Catalogue record for this book is available from the Library of Congress.

Printed on acid-!ree paper.

ISBN 90-411-2166-8 © 2003 Koninklijke Brill NV, Leiden, The Netherlands Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers. 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, electronic, mechanical, photocopying, microfilming, recording, or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall

Table of Contents

Introduction 1.

vii

A Line in the Sand: International (Dis)Order and the Impunity of Non-State Corporate Actors in the Developing World

1

S. Agbakwa

Human Capabilities and Gender Justice: A South Asian Perspective

19

3. Operation Enduring Freedom: Towards a New International

31

2.

B. Baruah

Law and Order? U Baxi

4. Third World Approaches to International Law: A Manifesto

47

5. Geographical Hegelianism in Territorial Disputes Involving

75

B.S. Chimni

Non-European Land Relations: An Analysis of the Case Concerning Kasikili/Sedudu Island (Botswana/Namibia) J.T. Gathii

6.

Opinion: Illegal Wars and International Criminal Law

M. Mandel

7. The Ground Beneath Her Feet: TWAIL Feminisms V. Nesiah

117 133

International Law and Third World Resistance: A Theoretical Inquiry

145

9. Economic Neo-Liberalism and the International Law on Foreign

173

8.

B. Rajagopal

Investment

M. Sornarajah

191

Notes on Contributors

v

Introduction

For several years now, a group of scholars have been engaged in exploring what might be termed Third World Approaches to International Law (TWAIL). This work seeks to continue and further develop the important work that has been done over many decades, particularly by scholars and jurists from the third world, to construct an international law which is sensitive to the needs of third world peoples. This body of scholarship has attempted to extend and expand the concerns and materials of international law. The essays in this volume are animated by these same motives at a time when unprecedented issues confront third world peoples, particularly since the contemporary international system appears to be disempowering third world peoples, intensifying inequality between the North and the South, and indeed, importantly, within the North and the South. As the different essays in this collection may suggest, TWAIL scholars do not always agree on the content, direction and strategies of third world approaches to international law. However, we are united in the recognition that there is an urgent need to democratize international legal scholarship in that we need to enhance participation by third world voices in debates about international law. Historically, international law has often worked to subordinate third world peoples, and we are concerned to identify the structures of international law that continue to have this effect. The vast preponderance of international law scholarship, which is produced in Europe and North America,

has been relatively indifferent to these issues, which are of such vital significance for the third world. Thus TWAIL attempts to develop further the analyses and perspectives that are important to the third world and to formulate a substantive critique of the politics and scholarship of mainstream international law to the extent it has helped reproduce structures TWAIL scholars attempt to look afresh at the history of colonial international law, engage previous trends in third world scholarship in international law, take cognizance of the dramatic changes which have characterized the body of international law in the last few decades from the perspective of third world peoples, record their resistance to unjust and oppressive international laws, and advance new approaches that address their needs and concerns. These are the broad themes and concerns which animate this collection of essays. While our focus, then, is on third world approaches to international law, we are at the same time eager to promote a constructive dialogue with mainstream international law scholarship, as that is one of the principal means by which Vll

A. Anghie, B. Chimni, K. Mickelson and 0. Okafor (eds), The Third World and International Order: Law, Politics and Globalization, vii © 2003 Koninklijke Brill NV. Printed in Great Britain.

viii

Introduction

we may enrich and further the discipline of international law, and help it make good on its claims to promote international justice. The essays collected in this volume are, for the most part, based on papers presented at the international conference on 'The Third World and International Order: Law, Politics and Globalization' held at Osgoode Hall Law School, York University in October 2001. Funding for this conference was provided by the Social Sciences and Humanities Research Council of Canada, Osgoode Hall Law School, and the Faculty of Law, University of British Columbia. Deanna Maria Santos, Djur candidate at Osgoode served as the conference coordinator. We express our thanks to these institutions, to Deanna, and to all the volunteers and participants who made this conference possible and successful.

SHEDRACK AGBAKWA*

1. A Line in the Sand: International (Dis)Order and the

Impunity of Non-State Corporate Actors in the Developing World

1. INTRODUCTION

Currently, the contemporary international human rights regime is anchored primarily on the perceived imperative of checkmating the excesses of the Westphalian state in its relationship with individuals and sub-state groups within its jurisdiction. 1 In this regard, the international legal order has arguably recorded significant strides in human rights protection. International standards for the protection of human rights have grown exponentially in number over the last five decades, having risen phoenix-like from the ashes of, first, colonialism and, then World War II. These standards have now attained a moral plateau that is largely unprecedented in global terms. 2 Apparently stung to consciousness by the atrocities perpetrated by Nazi genocidaires and their own colonial era excesses, the victorious allied powers galvanized international action to curtail the excesses of the Westphalian state, and punish individuals and other non-state entities for violations of international law. 3 The Nuremberg and Tokyo trials, and the "Never Again" pledge, (implying "a geopolitical

*

SSHRC Doctoral Fellow, Osgoode Hall Law School, Toronto, Canada. LLM (Dalhousie); LLB (Hons), (University of Nigeria). I owe a profound debt of gratitude to my mentor, Professor Obiora Okafor, for his guidance and thoughtful comments. My thanks to Solomon Ukhuegbe for his comments. This paper benefited greatly from my discussions with Professor Upendra Baxi during the TWAIL Conference where an earlier version of it was presented. I am indebted to Nkiru, my jewel of inestimable value, much more than I can ever acknowledge. The usual disclaimers of responsibility apply. See M. Mutua, Looking Past the Human Rights Committee: An Argument for De-Marginalizing Enforcement, 4 Buffalo Human Rights Law Review, 211 (1998). (Notes that "[t]he primary purpose of human rights law is to contain the predatory impulses of the state"). See M. Mutua, Book Review: Theory and Reality in International Protection of Human Rights by Watson 95:255 American Journal of International Law (2001). See R.K. Woetzel, The Nuremberg Trials in International Law chapters 5 (pp. 96-121) and 8 (pp. 190-217) ( 1960) on the responsibility of individuals and 'criminal organizations' for acts committed during WWII.

1 A. Anghie, B. Chimni, K. Mickelson, 0. Okafor (eds.), The Third World and International Order: Law, Politics and Globalization, 1-18 © 2003 Koninklijke Brill NV. Printed in Great Britain.

2

Shedrack Agbakwa

promise" 4 by the so-called civilized world to checkmate impunity) are, hopefully, emblematic of the seeming resolve in some quarters to punish serious violations of human rights. The ongoing trials in Rwanda and Yugoslavia, and, lately, the inchoate permanent International Criminal Court (ICC), are all efforts to constrict the frontiers of impunity. 5 The foregoing, I believe, hopeful spots of light (on the otherwise grave face of contemporary international order) belie the festering reality: the continued selective (in)equity of contemporary international order. Thus, while seasoning the behaviour of states with some "fai;:ade of progressiveness", 6 the North, the repository of effective international law making powers,7 has virtually divided the world into two separate spheres. These are, "spheres where observance of some aspects of human rights and needs (the so-called 'developed countries') happens, and spheres where enslavement, dehumanization, super-exploitation of peoples, labour resources and general denial of right [ ... ](the 'Third World') takes place." 8 Perhaps, nowhere is this fact most evident than in the impunity currently enjoyed by multinational corporations (MNCs), 9 the ubiquitous agents of Northern (neo-) imperialists. By a carefully constructed scheme, MNCs have conveniently, if ineluctably, fallen between the stools of effective (national and international) control, even in this age of rights enunciation. 10 Hence, international law has yet to recognize, and seems to have discounted, as full subjects, MNCs (among other non-state actors) whose activities violate important international legal norms. This is consistent (if tragically so) with its

10

See R. Falk, The Challenge of Genocide and Genocidal Politics in an Era of Globalization in T. Dunne & N.J. Wheeler (Eds.), Human Rights in Global Politics 177, at 183 (1999). But see, M. Mutua, From Nuremberg to Rwanda Tribunal: Justice or Retribution? 6 Buffalo Human Rights Law Review 78 (2000). See also M. Mutua, Never Again: Questioning the Yugoslav and Rwanda Tribunals 11 Temple International & Comparative Law Journal 167-170 ( 1997) (arguing that the Rwanda and Yugoslav tribunals were established to 'achieve neither the abolitionist impulses nor the just ends' trumpeted by the founders, rather they were established for their ablutionary effect 'to assuage the consciences of states which were unwilling to stop the genocide.'). See S. Gutto, Human and Peoples' Rights for the Oppressed: Critical Essays on Theory and Practice From Sociology of Law Perspectives 95 (1993). See W.M. Reisman, International Lawmaking: A Process of Communication 75 Proc. of ASIL 112-113 (1981). See S. Gutto, supra, note 6 at 95. For a critique of this mindset in mainstream international human rights scholarship, education and praxis, see generally, O.C. Okafor & S.C. Agbakwa, Re-Imagining International Human Rights Education in Our Time: Beyond Three Constitutive Orthodoxies 14 Leiden Journal of International Law 563 (2001). The term multinational corporations (MNCs), (also variously known as multinational enterprises (MNEs) or transnational corporations (TNCs)), as used here, depicts corporations, whether large, medium or small, with networks of affiliated units in different countries. See U. Baxi, Voices of Suffering and the Future of Human Rights 8 Transnl. L. & Contemp. Problems 125 ( 1998) [hereinafter, "Voices of Suffering"], states: "No preceding century of human history has been privileged to witness a profusion of human rights enunciations on a global scale.'' See also, L. Henkin, The Age of Rights ix (1990) ("Human rights is the idea of our time, the only political-moral idea that has received universal acceptance").

A Line in the Sand

3

character as "a major super-structural tool for facilitating and justifying the actions of some states and their agents" .11 Since the erection of the Westphalian platform of modern international society as composed exclusively of a community of sovereign states in the Europe of 16th and 17th centuries, 12 international relations has remained, for the most part, inter-state relations, with relatively minor actual, as opposed to normative, application to individuals and other non-state actors. 13 Even as we flag off the 21st century, the situation remains largely unchanged. Admittedly, since Nuremberg and Tokyo, and, more recently, the Yugoslavia and Rwanda tribunals, individuals and some other non-state actors have been held accountable for violations of international law, and international law has become applicable to non-state entities such as international organizations. 14 Yet, individuals, let alone other major non-state actors, are not still recognized as full subjects of international law. 15 Traditional international law, therefore, remains overtly, if obsessively, state centric with grave implications for the protection of human rights. 16 Also, the politics, legal protection, and most philosophical treatments of human rights still regard states as the primary and dominant actors, 17 despite the realities of global corporate power in this age of globalization, an age marked by the shrinking of state power. Ever since MNCs emerged on the international scene in the 15th century, 18 they have moved like poltergeists through the international community, dominating and affecting the lives of people the world over but especially in the 11

12 13

14

15

16

17

18

See S. Gutto, supra, note 6 at 95. See E.B. Weiss, The Rise or The Fall of International Law 69 Fordham Law Review 346 (2000). See R.K. Woetzel, supra, note 3 at 97. As in the Reparations for the Injuries Suffered in the Service of the UN case (Advisory Opinion) [1949] ICJ Reports 174. See I. Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations 48 (1998) states that, "[i]n strict analytical terms it cannot be said that the individual per se is a subject of international law." See also, D.W. Greig, International Law, 2nd edition 115-116 (1976), noting that," ... the fact that rules of international law apply to individuals does not necessarily mean that individuals are legal persons in international law unless 'international personality' is given a definition sufficiently wide to include them.". See M. Lippman, Multinational Corporations and Human Rights in G.W. Shepherd & V. Nanda (Eds.), Human Rights and Third World Development 249, at 252 (1985); W.H. Meyer, infra, note 17 at 369; B.A. Frey, The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights 6 Minnesota Journal of Global Trade Law 153 ( 1997). See W.H. Meyer, Human Rights and MNCs: Theory Versus Quantitative Analysis 18 Human Rights Quarterly 368, at 369 (1996). The origin of MN Cs may be traced to 15th century Fuggers merchant family who were based in Augsburg and operated various businesses throughout Europe. But the origins have also been linked to the pre-19th century companies which were mainly heavy users ofraw materials and sought their supply of materials abroad. See M.B. Baker, Private Codes of Corporate Conduct: Should the Fox Guard the Henhouse? 24 University of Miami Inter-American Law Review 399, at 401 (1993). For a more detailed history of the evolution of modern MNCs see, P. Muchlinski, Multinational Enterprises and the Law 19-33 (1999).

4

Shedrack Agbakwa

Third World. MNCs own and control the majority of production, distribution and exchange, and control other webs of complicated activities with varying complexities. As a result, they wield immense powers that enable them to literally bestride our "global neighbourhood" 19 like a colossus. In spite of their enormous powers (the extent of which largely exceeds that of most sovereign states) MNCs remain largely unaccountable for the adverse use of their powers. Although each state supposedly has rules and regulations governing corporate conduct, MNCs, with the backing of their Northern home states, have become little more than international totems. As untouchables, MNCs have, all too often, become much more powerful than their ostensible regulators, mostly "Third World" 20 states. Notwithstanding, the international legal order subserviently maintains its 'ostrichian' posture in the heap of documented evidence of "a continuing pattern of misbehaviour" 21 by MNCs operating in developing countries. As a result, these MNCs, touted as the hub of the new global economic order, operate "within a virtual legal vacuum" 22 - not subject to any effective regime. 23 At the same time, egregious violations of human and environmental rights by MNCs have been on the rise. In essence, while international efforts to protect individuals against the state (and in some cases against other individuals) have proliferated in the last half a century, MNCs continue to ride roughshod over the human rights of "Third World" peoples, with only the most minimal redress, if at all, available. Yet, international law and institutions remain unwilling and/or uninterested to prescribe and implement effective normative and institutional regimes of accountability for MNCs. It is the contention of this Chapter that the existing

19

20

21

22

23

I borrowed this expression from, and use it in much the same sense as, O.C. Okafor, The Status and Effect of the Right to Development in Contemporary International Law: Towards a SouthNorth 'Entente' 7 African Journal of International and Comparative Law 865 (1995). I use the expression in the same sense it has been used by Rajagopal as a "geopolitical concept" for those specific areas of the world usually distinguishable from the First and Second Worlds. See B. Rajagopal, Locating the Third World in Cultural Geography Third World Legal Studies

1 (1998-1999). See R. Heilbroner, Controlling the Corporation in R. Heilbroner et al., In the Name of Profit 223-224 (1972). For an insight into some recent abuses by MNCs see, G. Kelley, Multilateral Investment Treaties: A Balanced Approach to Multinational Corporations 39 Columbia J. Transnational L. 483, at 510-514 ( 2001 ). See J. Cassels, Outlaws: Multinational Corporations and Catastrophic Law 31 Cumberland Law Review 311, at 314 (2001). See also, R.J. Fowler, International Environmental Standards for Transnational Corporations 25 Envtl. L. 1, at 2 ( 1995); M. Greer, Foreigners in Their Own Land: Cultural Land and Transnational Corporations-Emergent Rights and Wrongs 38 Virginia J. Intl. L. 331, at 335 ( 1998 ). International initiatives addressing the conduct of MNCs are virtually nonexistent, or otherwise, voluntary and non-binding, focussing only on the potential economic impacts of MNCs, while only tersely or indirectly addressing their impact on human rights. See, for instance, Guidelines for Multinational Enterprises, Annex to OECD Declaration on International Investment and Multinational Enterprises of 21 June 1976, reprinted in 15 ILM 969 (1976). See also, W.H. Meyer, supra, note 17 at 369.

A Line in the Sand

5

international regime deficit in curtailing MNC impunity is anything but accidental.24 Rather, the regime deficit is induced and typical of the current Northern-dominated global order. It is also a by-product of interrelated sociopolitical and economic 'global' forces. Without pretending that the sociopolitical and economic factors are the only obstacles to effective regulations of MNCs, this Chapter, in accordance with its limited mandate, will briefly explore how each of these factors has conduced to the current climate of impunity enjoyed by MNCs. The Chapter is a preliminary attempt to think through the conceptual basis of a much more extensive research endeavour in this area, one in which I am currently engaged. Given its modest aims, the remaining part of the Chapter is divided into four short sections. Section II explores the political economy of MNCs' impunity. Section III highlights the social underpinnings of MN Cs' impunity. Section IV examines the self-serving manipulation of international rules, norms and doctrines, to serve the interests of MNCs and their Northern home states. Section V concludes by outlining the relevant points. 2. THE POLITICAL ECONOMY OF IMPUNITY

In this section, I will sketch the intricate political and economic connections existing between MNCs and their usually Northern home states. These connections not only make their home states the direct beneficiaries of impunity but also inextricably entangle them in the gross misconduct of MNCs in Third World states. These mainly Northern home states are, therefore, both accomplices and beneficiaries whose interests are better served by the continued unleashing of the MNCs on the hapless "Third World" population, but not otherwise. One would be presumptuously naive to expect such states to easily relinquish the sanguinary privileges that flow from the current regime of MNC impunity. For a proper insight into the 'whys' and 'wherefores' of MNCs' impunity, it should be noted that generally there is nothing inherent in the nature and character of international law, except of course in its partly hegemonic and (neo-)colonial attributes, 25 to preclude its full application to individuals and 24

25

Given the hideous history and pervasiveness of MNCs' violations on the one hand, and the efforts and recorded progress in the protection of human rights of the last fifty-something years (the most recent being the adoption of the ICC statute) on the other hand, how does one explain the sheer impotence of the mechanisms that have succeeded, to an extent, in blunting the sharp machetes of the Westphalian state while at the same time neglecting the excessively sharp edges of an entity created by states?. See generally, A. Anghie, Francisco de Vitoria and the Colonial Origins of International Law 5 Social & Legal Studies 321 (1996); J.T. Gathii, International Law and Eurocentricity 9 European Journal oflnternational Law 184 (1998); M. Mutua, Why Redraw the Map of Africa: A Moral and Legal Inquiry 16 Michigan Journal of International Law 11-13 (1995); A. Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law 40

Harvard International Law Journal 1 (1999).

6

Shedrack Agbakwa

MNCs where the activities of these non-state entities have the same or similar impacts on the human rights of individuals as the prohibited activities of states. In the bid to protect human rights, international law has progressively, albeit reluctantly, recognized the need to look beyond the state (as an abstract entity) to the real perpetrators of egregious human rights violations. Therefore, extending the application of international law to MNCs will only be a genre of the increasing adaptation of international law to reflect the realities of the contemporary world. But, the sad truth is that international law making (and law making generally) is usually reflective of the wishes, interests and aspirations of the powerful. As I noted elsewhere, international law, and by implication international human rights law, remain constrained by ideological and inherently self-interested prescriptions of the more powerful states. 26 The interests, preferences, and hegemonic ambitions of these states are usually adorned with the toga of universal values. And by flexing their considerable (political, economic, and, sometimes, military) muscles, these states lock in their preferences and use international law to disguise their otherwise naked selfish interests. As far back as the 17th century, MNCs have been Northern agents and instruments of imperialism and colonialism. 27 Usually acting under royal charters and enjoying the utmost protection of their home states' 'Maxims' 28 and 'Seven-Pounders', 29 these MNCs viciously exploited their hostage states politically and economically. According to Gutto, "[t]he whole institution of imperialism is an expression of the union between 'private' corporations or quasi-private corporations with state power to expand outside the territorial boundaries for purposes of exploiting social and economic advantages in other societies." 30 Today, except for the "de-recognition [and de-legitimation] of the rightfulness of formal colonialism," 31 very little indeed has changed both in the protection of MNCs by their home states (a relationship that also shields these entities from the effective reach of the law) and in the exploitative disposition of these MNCs. Thus, in order to unmask the substratum of the impunity enjoyed by MNCs, we must first understand that MNCs are, for all practical purposes, especially in their conducts and relationships with 'other' states, inseparable from their home states. This is notwithstanding the deceptive 26

27

28

29

30 31

See S.C. Agbakwa, Reclaiming Humanity: Economic, Social and Cultural Rights as the Cornerstone of African Human Rights 5 Yale Human Rights & Development Law Journal 177, at 202, fn. 127 (2002). See also, J. O'Manique, Development, Human Rights and Law 14 Hum. Rts. Q. 383, at 405-406 ( 1992). See M.B. Baker, supra, note 18 at 401. See also, L. Turner, Multinational Companies and the Third World 17-28 (1973). First fully automatic water-cooled machine gun (designed in Britain in 1884) widely used in the colonial pacification of Africa and elsewhere. Field artillery guns widely deployed to maximum effect by the colonialists to subdue local resistance. See S. Gutto, supra, note 6 at 104-105. Ibid. at 96.

A Line in the Sand

7

pretensions of law in conferring on these entities independent, if artificial, legal persona. The ultimate objective of both MNCs and home states is the maximization of wealth, translating to increased return on shareholder investments 32 and, perhaps, to an improvement in the quality of life for citizens. Apparently because of the huge economic (and other) benefits accruable to their home states, MNCs have identically entwined interests with their home states. As is notoriously evident in international relations, home states often deploy state power and apparatuses to procure lucrative contracts for MNCs. 33 They also undertake the responsibility of ensuring that the terms of these contracts are kept. 34 Rather interestingly, the governments of these (usually Western) home states have become responsive to the influences of MNCs. 35 As a commentator recently put it, rather bluntly: "[ t] hey [corporations] exercise political power because they are the source of campaign funds." 36 This has effectively problematized the customary distinctions between the behaviour of MNCs and the activities of their home governments. Effective international law making powers are almost entirely exercised by virtually the same groups of states 37 that have become so heavily influenced by MNCs. The strong opposition of this group of states to the enthronement of a New International Economic Order (NIE0), 38 the implementation of the Charter of Economic Rights and Duties of States, 39 and the adoption of the UN Code of Conduct for TNCs, 40 are all painful reminders that law, especially international law, has rarely served the common interests of all of humanity North and South alike. It is, therefore, all too apparent that certain states loathe the idea of devising an effective regime, normative and institutional, likely to abridge their historical privileges. As Gutto persuasively argued, in all relationships, "either at the national or international levels, the dialectic relations between economic structures, institutions and norms, is decisive." 41 32 33

34 35

36

37 38

39

40

41

See, M.B. Baker, supra, note 18 at 432.

For documented instances of the use of state power to fraudulently acquire oil-fields, see generally L. Mosley, Power Play: Oil in the Middle East (1973); A. Sampson, The Seven Sisters: The Great Oil Companies and the World They Made (1976). See S. Gutto, supra, note 6 at 99; P. Muchlinski, supra, note 18 at 535. See L.E. Peterson, A Little Help From Your Friends, The Toronto Star, A22 (January 30, 2002) (instantiating a particular case of deep corporate influence in modern governance and how the increasing availability of Western governmental resources in service of corporate interests is the hallmark of 21st century foreign policy). See R. Gwyn, Era of Trust in Corporations Coming to End, The Toronto Star A27 (March 20, 2002). See M. Reisman, supra, note 7 at 113. See generally, D. Dicke, Public International Law and a New International Economic Order in P. Sarcevi & H.V. Houtte (Eds.), Legal Issues in International Trade 23 (1990). Charter of Economic Rights and Duties of States (12 December 1974) UN Doc. A/RES/3281 (XXIX), reprinted in 14 ILM 251 (1975). The UN Commission on TNCs began work on the code in 1977 and produced a draft code in 1990, which the UN is still grappling with. See M.B. Baker, supra, note 18 at 410. See S. Gutto, supra, note 6 at 100 (emphasis in original). See also W. Rogers, The Demand for Economic Justice 75 Proceedings of ASIL 120 (1981).

8

Shedrack Agbakwa

MNCs are not merely the economic spinal cord of their home states. They often act as the economic (and sometimes political) alter egos of their home states within their "Third World" spheres ofinfluence. 42 As a result, these home states leave no stone unturned in their drive to safeguard the economic, political and legal status quo. 43 Notable steps taken in this regard range from propping up or subsidizing repressive regimes 44 through toppling noncompliant "Third World" regimes, to stifling well-intentioned international initiatives aimed at curbing the excesses of MNCs. Any threat to the business and profits of MNCs is often viewed as a threat to the national (security) interests of these home states. As amply underscored in the cases of Guatemala and Chile, to mention a few, such perceived threats are taken rather seriously and usually attract overt or covert military and non-military responses. In the Guatemalan case, the United Fruit Company (UFC), a US MNC, orchestrated and (through the agency of the CIA) masterminded the overthrow of a legitimate government perceived (by the US) as a threat to the assets of UFC and, by extension, to US national interests. 45 The Chilean case involved a two-pronged military and non-military reaction. In the first instance, ITT (International Telephone and Telegraph) instigated US plans to overthrow the government of Salvador Allende. 46 In the second instance, US copper companies nationalized by Allende's government connived to hinder Chile's economic planning and precipitated economic collapse through a campaign of economic disruption. 47 Other structures and institutions of MNCs' home states also show little or no inclination to "police the operations of their companies abroad." 48 The 42

43

44 45

46

47

48

See S. Gutto, supra, note 6 at 97, describing the linkage between these states and MNCs as "the cornerstones of modern imperialism and neo-colonialism." See also, generally, J. Galtung, A Structural Theory of Imperialism 8 Journal of Peace Research 82 (1971); G. Kolko, The Roots of American Foreign Policy: An Analysis of Power and Purpose (1969); W.A. Williams, The Tragedy of American Diplomacy (1972) (all alluding to the MNC as a device used by the North to impose an imperialist or neo-colonialist regime on less developed states). See S. Gutto, Ibid. at 96-97 (demonstrating the opposition of the industrialized (capitalist) market economies to "provisions designed to provide mechanisms for the control and regulation of hitherto counter developmental activities of foreign investments by transnational corporations"). See also, J.T. Gathii, supra, note 25 at 207 (noting that the failure of the NIEO to attain a level of legality that would have constituted it as hard law is a "typical response to claims to restructure the international political economy" and part of a "liberal strategy for perpetuating an unjust status quo"). See M. Lippman, supra, note 16 at 254. See, A.K. Sachacroff, Multinationals in Host Countries: Can They Be Held Accountable for Human Rights Violations? 23 Brooklyn Journal oflnternational Law 927 (1998). See A. Sampson, The Sovereign State of ITT 259-288 (1973); Bertrand Russell Peace Foundation, Subversion in Chile: A Case Study in US Corporate Intrigue in the Third World 8-35 (1972). See T. Moran, Multinational Corporations and the Politics of Dependence: Copper in Chile 252-253 ( 1975); Bertrand Russell Peace Foundation, Ibid. at 37-47. See J. Cassels, supra, note 22 at 317. For instance, in a judgment imaginatively characterized by Baxi as "Dow-Jones [ ...] jurisprudence", Judge John F. Keenan, in refusing to have the Bhopal case (involving an American MNC) litigated in US, held that the public interest of the US in the disaster was too ephemeral to justify devotion of massive resources to a trial in US.

A Line in the Sand

9

reason for this reluctance is not hard to discern. Part of it lies in the answer to Baxi's rhetorical question: "On what may a judge ground the notion that exportation of hazard [ ...] abroad is unjustified when it, inter alia, sustains economic growth, global capital accumulation, employment at home?" 49 No less pertinent is Lippman's observation. He writes: "Social elites in host[age] countries also may be benefiting disproportionately from [MNCs] through stock ownership, partnership agreements, and consultant executive positions within companies. As a result, such social elites, which monopolize political power, may have an interest in [MNCs] being as unfettered as possible by government regulation." 50 Lippman's very important point is equally apt for the elites of MNCs' home states, whose political powers largely depend on the welter of corporate handouts. 51 The political establishment of the hostage "Third World" states, even if willing and able, usually lack effective power to safeguard the basic rights of citizens. 52 Moreover, the hostage states have been sold on "a mistaken model of development" 53 with overarching, if consuming, beliefs in unregulated movement of global capital. Therefore the hostage states, apparently in a misconceived quest to "develop" like their Northern counterparts, are usually in a contradictory position, either to create wealth or to protect the rights of their citizens. 54 Yet, in the end, 'global' wealth hardly shifts ground from its customary Northern abode. Besides, the extent to which some "Third World" governments are actually in effective control of their states is highly suspect. Eminent scholars have clearly demonstrated how the North, through, inter alia, its Bretton Woods institutions, has effectively assumed a large chunk of "Third World" governance. 55 Indeed, "Third World" sovereignty has become increasingly meaningless, as these states are effectively controlled and manipulated from

49

50 51

52

53 54 55

See U. Baxi, Inconvenient Forum and Convenient Catastrophe: The Bhopal Case 26 (1989) [hereinafter, "Convenient Catastrophe"]. Judge Keenan's response to "sufferings in distant 'Third World' places" caused by "a home MNC" is hardly surprising, for as Baxi eminently underscored, "[a]s long as no harm occurs to Americans, the American legislators remaining vigilant to ensure that their regulatory effort at home is not contaminated by lower standards abroad, how can the public interest of the US be ever adversely affected? Indeed, it is served by dumping dangerous technology on poor countries [ ...]." See, U. Baxi, Ibid. See U. Baxi, Mass Torts, Multinational Enterprise Liability and Private International Law, Recueil des Cours 297, at 311 ( 1999) [hereinafter, "Mass Torts"]. See M. Lippman, supra, note 16 at 255. See E. Drew, The Corruption of American Politics: What Went Wrong and Why (1999). For a critique of Drew, see J.C. Nagle, Book Review: Corruption, Pollution, and Politics 110 Yale Law Journal 293 (2000). See D. Cassel, Corporate Initiatives: A Second Human Rights Revolution? 19 Fordham International Law Journal 1963, at 1984 (1996). See J. Cassels, supra, note 22 at 316. Ibid. at 318-319. See generally, O.C. Okafor, Re-Conceiving 'Third World' Legitimate Governance Struggles in Our Time: Emergent Imperatives for Rights Activism 6 Buffalo Human Rights Law Review 1-37 (2000); A. Orford, Locating the International: Military and Monetary Interventions After the Cold War 38 Harvard International Law Journal 443, at 451-460 (1997).

10

Shedrack Agbakwa

remote centres of authority. For most "Third World" states, governance has become a nominal or symbolic notion, merely fawning their sense of pride in holding the cow, while some of their leaders and Northern MNCs, milk it dry. While there have been local accomplices in the vicious abuses of "Third World" peoples by MNCs, usually the business and/or political elites, and, of course, subsidized "patrimonial" 56 regimes, these local abettors are hardly significant actors at the international level. They lack any real clout to obstruct the evolution of an effective regime of accountability for MNCs. They are, to a large extent, proxy pawns in the high-stake chess game; a game Robert Heilbroner has allegorically branded, the "business version of the principle behind the Vietnam War - the imposition of casualties on other people in the name of some tenet, such as freedom or profit, [and lately, globalization]." 57 Presently, there is nothing in the international socio-economic or political horizon indicating an imminent displacement of the status quo. So long as the North's trend of mostly inflicting casualties on "others" while taking no more than a few casualties itself persists, it will be in no apparent hurry to end, or support the ending of, MNC impunity. This is especially so because, firstly, far too many persons in the North can be described as "refined hedonist[s] whose world revolves, by conscious choice, around private pleasure" 58 while (sometimes deliberately) keeping uninformed about "distant" atrocities committed on their own behalf or behest. Secondly, without the Northern dominated corporate media cheerleading rendition of the graphic horrific images of this "old-new-war'', there is a virtual absence of domestic pressure to induce a change of policy. 3. MNC IMPUNITY: SOCIAL UNDERPINNINGS The pertinent question is: what level of culpability in MNC impunity is ascribable to social forces, whether in Northern or "Third World" societies? Or how is the impunity of MNCs actively, if at all, sustained by these social forces? In response to some of the strictures it received following the "judicial murder" of Ken Saro-Wiwa, Shell, which is widely believed to have abetted the despicable act, reportedly asked in an advertorial: "What if we were to withdraw from the project, with all the employment it entails? The oil extraction would continue and it might not be done better?" 59 Without more, this (and similar) veiled threat is typically the standard cliche usually deployed by MNCs to contain potential disapprobation of their conduct at home. So far, this 56

57 58

59

See J. Nzelibe, When the Multinational Meets the Patrimonial State: Prospects for Improving Transnational Liability 5 Journal oflnternational Law and Practice 417 (1995). See R. Heilbroner, supra, note 21 at 224 [Emphasis supplied]. See C. Filice, On Obligations to Keep Informed About Distant Atrocities 12 Human Rights Quarterly 397 (1990). See Clear Thinking in Troubled Times The Globe and Mail A17 (November 21, 1995), cited in L. Westra, Living in Integrity: A Global Ethic to Restore a Fragmented Earth 117 ( 1998).

A Line in the Sand

11

modus operandi has been largely successful. The effectiveness of such threats lies in the proven belief that, faced with the social costs of MNCs doing "the right thing", the attitudinal architectonic of the average home citizen would be less critical and disapprobatory. 60 This corporate gambit (of social manipulation) would have been far less effective but for the inherently hedonist and individualistic nature of Northern societies. The nature of these societies significantly benumb the self-introspective capacity of individuals to empathize with, or recognize duties to, "distant peoples" or in Midgley's words, "people belonging to quite other communities." 61 Thus, societal "silent complicity" 62 is ingrained in its indulgent "flight to moral minimalism" 63 that distorts the sense of "responsibility towards humans outside [one's] own society". 64 That is probably why a judge of a federal court remorselessly felt able to say that the public interest of the US (in a disaster - "strikingly close to genocide" 65 that killed thousands of people due to the negligence of a US MNC), was too ephemeral. 66

Related to the foregoing, perhaps inseparable therefrom, is the uncritical trust and reliance on profoundly manipulative Northern news media. Because of this uncritical reliance, there is usually no interest in looking beyond the news media for reality checks. Yet, these corporately owned or controlled mainstream news media are known to, perhaps by "general tacit agreement", 67 keep away "inconvenient facts." 68 Society adheres to the belief that anything not reported is generally not newsworthy (or vice versa) and likely to be of little or no relevance to one's immediate or remote interest. Hence, society consciously surrenders its conscience to a few whose interests may not necessarily be coterminous with majority interests. This state of enlightened ignorance renders society culpable (as participes criminis) for things purportedly done in its name for its interest. 69 60

61

62 63 64 65

66 67

68

69

Similar veiled threats are used so often, deployed by proponents of MNCs' self-regulation (ala private codes of conduct) or opponents of effective international regulation. See for instance, M.B. Baker, supra, note 18 at 432; P.Z. Thadhani, Regulating Corporate Human Rights Abuses: Is UNOCALthe Answer? 42 William and Mary Law Review 619 (2000). See M. Midgley, Towards and Ethic of Global Responsibility in T. Dunne & N.J. Wheeler, supra, note 4, 160, at 161. See L. Westra, supra, note 59 at 111. See M. Midgley, supra, note 61 at 162. Ibid. See J. Duke, Enforcement of Human Rights on Multi-National Corporations: Global Climate, Strategies and Trends for Compliance 28 Denver Journal of International Law & Policy 339, at 349 (2000). See, supra, note 48 and authorities cited therein. See N. Chomsky, The United States and the Challenge of Relativity in T. Evans (Ed.), Human Rights Fifty Years On: A Reappraisal, 24 at 27 (1998). Ibid. See also, C. Filice, supra, note 58 at 401, noting that "mainstream national news services, even in 'open' societies, tend to have blind spots concerning stories that would embarrass the fatherland [sic] and harm its perceived interests.". But see, C. Filice, Ibid. at 401-402, arguing that since "the average US citizen lacks the culturalmotivational prerequisites to decide to seek information, he or she cannot really make such

12

Shedrack Agbakwa

By being morally minimalist and selectively cogmtlve, Northern society creates a slippery slope and de-links itself from "global mass justice". 70 It also surrenders its 'will' and perceived interests to be used by its elites, to bestow impunity on MNCs for the atrocities they commit in 'distant' "Third World" places. In effect, Northern society is actively obstructionist to probable solutions to the sufferings of "others" of 'distant' societies. This is especially so because of the fact that it has so far shown uncomfortable disinclination to meaningfully engage with or "interrogate the barbarism of power" 71 and "the barbaric practices of politics" 72 in its domain, and the unjust effects of such activities in 'other' societies. In the next section, I will explore how the convergence of the socio-political and economic forces has sustained a corporately condescending international legal order. 4. INTERNATIONAL LAW AND MNC IMPUNITY To a great extent, law, usually encapsulated in defined rules, norms and doctrines, oils the wheels of the international order. These rules, norms or doctrines, for the most part, shape the conduct of states (so much so that states do not admit breaking the law, even when their actions inform otherwise). Because law supposedly undergirds the international order, the impunity enjoyed by MNCs cannot therefore be dissociated from the fate of existing international rules, norms or doctrines and the age-old quest for a new international order by the disadvantaged. Ordinarily, certain existing rules, norms or doctrines arguably would have effectively served as protective bulwark against MNC impunity. But that is hardly the case. The North still dominates the international order, as well as its rules and regulations, its legal, political, economic and social structures and institutions. This patently asymmetric distribution of power, needless to say, defines or shapes the emergence of new rules and/or the operation of old rules. The pertinent question is: in what ways, if at all, have certain international norms, rules and doctrines facilitated and/or authorized and/or legitimated the impunity of MNCs operating in the "Third World". My aim here is to briefly show the self-serving manipulation of international rules, norms or doctrines to serve Northern and MNC interests. The analysis here is necessarily, if deliberately, cursory. Sovereignty and its attributes (such as jurisdiction and territorial integrity) are well known bedrocks of the Westphalian state. The hallmark of an independent entity is its ability to exercise and assert the plenary and plenitude of its

71

decisions, and thus cannot be morally obligated to seek such information." Yet, it was for similar reasons that "ignorance of the law" was historically discounted in criminal defence. See U. Baxi, Mass Torts supra, note 49 at 311. See U. Baxi, Voices of Suffering supra, note 10 at 127.

72

Ibid.

70

A Line in the Sand

13

'sovereign' authority over entities within its territory or subject to its jurisdiction. For this reason, every independent state jealously guards its sovereignty (with its accoutrements). 73 Like Walter Wriston, I recognize that the concept of sovereignty (together with its attributes) is not etched in stone, but has evolved over time. 74 Yet, the evolution can hardly be said to have impacted equally on all states. So far, it remains largely lopsided against the South. Through the so-called market policies (among others) states, particularly, "Third World" states, have witnessed rapidly incremental (and sustained) erosion of their authority. For instance, Oloka-Onyango and Udagama, in their report to the UN, 75 have perspicaciously shown how the WTO, by pursuing "globalization-from-above" 76 and favouring the agendas of the North and MNCs, severely limited the power of nation-states in the South (the "Third World") to effectively help their citizens. 77 By carefully disguising their hegemonic pretensions in the mantra of global trade, some Northern states have, through the WTO, succeeded in virtually stripping from "Third World" states the powers to regulate MNCs. 78 As Jeffery Atik has demonstrated, The substantive terms of [WTO's] agreements limit the scope of action for national regulation, stripping power away from states. Its enhanced dispute

73

74 75

76 77

78

I agree with Krasner that sovereignty is a multifaceted term. See S.D. Krasner, Compromising Westphalia 20 International Security 115, at 118-119 (1995-1996). But for the purposes of this paper, Gelber's definition suffices. According to Gelber, sovereignty means the "exclusiveness of [a] sovereign's authority within its own territory, a right to non-intervention in the internal affairs of one's state and the equality of states in terms of law and status. It involves the unique right of every independent state entity to control its own destiny without acknowledging any superior secular authority and without undue external pressure." See H. Gelber, Sovereignty Through Interdependence 74 (1997). I, however, disagree with Gelber's main conclusions. W.B. Wriston, Technology and Sovereignty 67 Foreign Affairs 63, at 66 (1998-1999). See J. Oloka-Onyango & D. Udagama, The Realization of Economic, Social and Cultural Rights: Globalization and its Impact on the Full Enjoyment of Human Rights (Preliminary Report), UN Commission on Human Rights, 52d Sess., Provisional Agenda Item 4, UN Doc. E/CN.4/Sub.2/2000/13, (2000). For a commentary on the report see, P. Ala'I, A Human Rights Critique of the WTO: Some Preliminary Observations 33 George Washington International Law Review 537 (2001 ). Ibid. at para. 8-9. Ibid. at para. 44. But see, S. Krasner, Globalization and Sovereignty in D. Smith, et al., States and Sovereignty in the Global Economy 34 ( 1999) (arguing that control and authority of states have been persistently challenged because challenges are an inherent element of any international system. Therefore, the claim that globalization is undermining sovereignty is exaggerated and historically myopic). See also, H.G. Gelber, supra, note 70 at 226. In a sense, Krasner appears to miss the point. The main issue is whether globalization is having the alleged effects on sovereignty and not whether sovereignty has been challenged in the past. See J. Atik, Identifying Antidemocratic Outcomes: Authenticity, Self-Sacrifice, and International Trade 19 University of PA Journal oflnternational Economics Law 229, at 230 ( 1998). (Jeffery's reference was to the effect of WTO agreement on states generally. However, I do not think that there has been any substantial loss of power by the North comparable to the South. The reasons for this view will be made clear shortly).

14

Shedrack Agbakwa

resolution mimics a form of hierarchical supremacy. WTO rules act as a super-constitutional text with a force superior to national enactments. 79 Thus, although the WTO "lacks any articulated pretence of supranationality"so its dispute resolution rules truncate legitimate (democratic) expressions of sovereignty.st A state found to be in violation of its WTO obligation is required to bring its national measures into conformity with the rules.s 2 Albeit not expressly declared void,s 3 any national laws or measures inconsistent with WTO must give way.s 4 In effect, WTO rules, including decisions of panels, have supremacy over national legislation.ss By implication, even national constitutions have no special sanctity. Yet, some scholars do not perceive in this state of affairs any disturbing withering of state authority.s 6 On the surface, it might seem that all states suffer equally from this fundamental diminution of their sovereignty. But that is hardly the case. First, the WTO severely suffers from a democratic deficit,s 7 with its agenda, policies, and authority determined by its most powerful Northern member states.ss Not surprisingly, therefore, as Oloka-Onyango and Udagama noted in their report, the WTO imposes a double standard.s 9 While it forces the "Third World" states to "pry open their markets" ,90 the North continues to retain significant barriers in many significant sectors. 91 Secondly, it is all too clear that the WTO Dispute Settlement Body lacks the necessary magisterial competence to enforce its decisions. The implication is that, as often the case, MNCs will naturally depend on their home states to enforce any favourable "judgments" under the so-called investor-state provisions. Even when no formal ruling has been made or actually in issue, the home states have not relented in bullying the affected

79

80 81

82

83 84 85

86

87

88

89

90 91

See J. Atik, Democratizing the WTO 33 Geo. Wash. Intl. L. Rev. 451, at 452 (2001 ). [Hereinafter, Democratizing"]. Ibid. at 455. See C.E. Barfield, Free Trade, Sovereignty, Democracy: The Future of World Trade Organization 2 Chicago Journal of International Law 403 (2001). See also, A.W. Wolff, Problems with WTO Dispute Settlement 2 Chicago Journal of International Law 417 (2001) (commenting on Barfield). See B. Hoekman & M. Kostecki, The Political Economy of the World Trading System: The WTO and Beyond 88 (2001). Ibid. See J. Atik, Democratizing, supra, note 79 at 452. Ibid. See e.g. J.L. Dunoff, Does Globalization Advance Human Rights? 25 Brooklyn Journal of International Law 125, at 129-132 ( 1999), arguing that all claims that WTO (and globalization) have diminished the autonomy and authority of the state are unfounded. On democratic deficit of WTO, see generally, J. Atik, Democratizing, supra, note 79. See D.W. Drezner, infra, note 93 at 329 (noting the creation of WTO "with a set of dispute resolution rules that largely reflect American preferences"). See J. Oloka-Onyango & D. Udagama, supra, note 75 at para. 14. See P. Ala'I, supra, note 75 at 539. See J. Oloka-Onyango & D. Udagama, supra, note 75 at para. 14.

A Line in the Sand

15

"Third World" state, with threats of sanctions. 92 Daniel Drezner has underscored the widespread use of "unilateral threats" 93 by both the US and the EU (the two major home states of MNCs) in trade issues "as a way of converting their preferences into accepted trade law." 94 Also, both the US and the EU have consistently "displayed an impressive dexterity in using international law to advance their interests on the world stage, even if doing so violates the sovereignty of other nations." 95 In particular, "[a] cross several issue areas, the [US] has mixed treaty, custom, and coercion as means of pushing international law towards desired ends." 96 Thus, in pursuit of its interests, the North has engineered the corrosion of state powers 97 and created a world (dis)order in which MNCs are the main beneficiaries. With a diminished capacity of the "Third World" to effectively protect its citizens from the abuses of MNCs, one does not need a crystal ball to foretell that the concepts of territorial integrity and independence have been rendered virtually illusory. Nor is the concept of non-interference any more integral. All these concepts are still relevant only to the extent that they have not been formally abrogated or denied. That is, to the extent that these "Third World" MNC hostage states have not been formally re-colonized. Northern home states do not stop at engineering corrosive measures that constrict the ability of "Third World" states to offer effective protection and remedies to their citizens. Some have simultaneously manipulated regulatory processes and jurisdictional doctrines to deny effective remedies to foreign plaintiffs. This is achieved in one of several ways. One of such ways is through legislative action or inaction. Prominent examples in this regard include the, now very familiar, licensing of "double standard" 98 for MN Cs operating in the South. 99 Manipulation is also achieved through the failure to harmonize and 92

93 94 95

96 97

98

99

See Bess-Carolina Dolmo, Examining Global Access to Essential Pharmaceuticals in the Face of Patent Protections Rights: The South African Example 7 Buffalo Human Rights Law Review 137, at 157 (2001) (noting the US use of threats of trade sanctions against developing states

to stop them from enacting measures permitting compulsory licensing (of generic drugs) and parallel trade. Yet, such measures exist in some Northern states, including US, EU, and Canada). See also, Blood and Gore: Office of the US Trade Representative Goes Too Far In Promoting of US Drug Companies Abroad The Nation 16 (July 19, 1999). See D.W. Drezner, On the Balance Between International Law and Democratic Sovereignty 2 Chicago Journal oflnternational Law 321 at 329 (2001). Ibid. Ibid. [Emphasis supplied]. Ibid. Ibid. at 332-333. See J. Cassels, supra, note 22 at 317. See also, M.P. Gibney, infra, note 99 at 319, alluding to the "differing standards" under which "a chemical that is known to be dangerous (and is banned in the United States) continues to be manufactured in the United States and sold overseas, oftentimes by U.S. [MNCs].". For instance, "at the time of Bhopal, in the name of free trade and international competitiveness, the US administration was engaged in dismantling what little extraterritorial regulation did exist, liberalizing, for example, the export of hazardous substances to third world countries even though they might be banned in the US." See Cassels, Ibid. at 318. See also, M.P. Gibney, The Extraterritorial Application of U.S. Law: The Perversion of Democratic Governance, the

16

Shedrack Agbakwa

render jurisdictional doctrines foreign-plaintiff friendly. 100 A scenario that predictably gives rise to what Baxi imaginatively dubbed "conflicts apartheid." 101 It is also achieved through Judge Keenan-type "Dow-Jones ... [and Nasdaq] jurisprudence" 102 in Bhopal. The ultimate result is impunity. As Baxi has observed, "foreign plaintiff controlling jurisdictional doctrines (such as victim 'standing',forum non conveniens, limits to application of piercing the corporate veil, especially of mass disaster causing multinational enterprises acting through a network of subsidiaries and alliances) place egregious corporate conduct beyond effective remedies .... " 103 Such was the case in the "convenient catastrophe [s]" 104 of both Bhopal and Delgado. 105 Together, they epitomize the victory of unconscionable legislative and judicial "hands-off approach[es]" 106 for 'distant' atrocities of home MNCs. The manipulative shielding of MNCs from liability is also apparent, perhaps much more so, in the politics of international subjectivity inherent in the continued denial of the (rather obvious) status of MNCs as international actors (subjects). 107 Rather paradoxically, MNCs claim the fullest benefit of access to all basic human rights, including freedom of speech, the right to property and the right to legal personality consistent with corporate will and power, while resisting all claims to accountability and rule of law. 108 Some international treaty rules (such as WTO and the World Bank's ICSID) confer on MNCs the right to directly initiate claims against states 109 without making MN Cs directly accountable (for environmental and human rights abuses) under those treaties. Thus, MNCs are placed in a privileged position that enables them to brazenly

100 101 102 103 104 105

106 107

108

109

Reversal of Institutional Roles, and the Imperative of Establishing Normative Principles 19 Boston College International & Comparative Law Review 297, at 316 (1996) (notes that: "[W]hile the United States has been very quick to regulate a myriad of phenomena in the world that have, or are perceived as having, a negative effect on U.S. interests, the United states has tended to ignore those situations where its government or corporate entities have had negative effect on others. The environmental damage caused by Texaco in its operations in Ecuador is a prime example of this problem"). See U. Baxi, Mass Torts, supra, note 49 at 336-349. Ibid. at 337. See U. Baxi, Convenient Catastrophe, supra, note 48 at 26. See U. Baxi, Mass Torts, supra, note 49 at 340. See U. Baxi, Convenient Catastrophe, supra, note 48. Delgado v. Shell Oil 890 F. Supp. 1324 (S.D. Tex. 1995). For the facts of, and recent commentary on, Delgado see, W. Anderson, Forum Non Conveniens Checkmated? - The Emergence of Retaliatory Legislation 10 Journal of Transnational Law & Policy 183 (2001 ). See J. Cassels, supra, note 22 at 327. See C. Layne, The Multinational Enterprise in the International Political System: A Theoretical Consideration 13 New York University Journal of International Law & Politics 27, at 56-57 (1980) (arguing that MNCs are not major international actors). See U. Baxi, Human Rights Education: The Promise of the Third Millennium? available online at (visited 19 March 2002) [printed copy on file with author]. See P. Muchlinski, supra, note 18 at 112-114 & 534-560.

A Line in the Sand

17

exploit international legal rules 110 by making a "sword and shield" argument (sword to maintain impunity and shield to evade liability). My point here is not necessarily that corresponding obligations must be imposed on third party beneficiaries under a treaty. In fact, as desirable as this may be, it is not usually the case. Human rights treaties (with, perhaps, the notable exception of the African Charter on Human and Peoples' Rights 111 ) are emblematic of treaties conferring benefits on third parties (individuals) without imposing corresponding obligations. However, the fast evolving international criminal law norms (and institutions) have since put it beyond doubt that individuals are equally major actors with international consequence. 112 The same can hardly be said of MNCs.11 3 The only international initiative aimed at imposing a semblance of international obligation on MNCs, the UN Code of Conduct for TNCs, is languishing in the cold chambers of the UN.11 4 It has so far failed to garner the necessary support of the most powerful states - the very exporters of MNCs. It is, therefore, evident that the Northern home states of MNCs are averse to any effective regulation of MNCs by the "Third World" states - those hapless hostages of MNCs. At the same time, these home states are unwilling to allow "Third World" victims unhindered access to justice in their domestic forum. For its (mostly selfish) socio-political and. economic purposes, the North seeks the dismantling of "Third World" territorial borders (by promoting globalization). Likewise, for much the same reasons, MNCs enjoy impunity and are carefully shielded from accountability. 110

111

112

113

114

For a recent account of MNCs' exploitation of international rules see, L.E. Peterson, Public, Not Private, Money Needed The Toronto Star, A20 (Marcill 18, 2002). African Charter on Human and Peoples' Rights, adopted 27 June 1981, O.A.U. Doc. CAB/LEG/67/3 Rev. 5 (entered into force 21 Oct. 1986), reprinted in ( 1982) 21 1.L.M. 58.

One of the legacies of Nuremberg (which animated the lCTY and ICTR as well as the recent ICC) is the increasing recognition of individuals as international actors, even when the act or omission in question is purportedly done in the name of a state. The principle behind internationalization of individual guilt, according to Sharon Williams, is a "deep-rooted need to advance the rule of law and to enhance. the quality of human behaviour at the national and international levels." See S. Williams, Light Out of DarkneSlf> The New International Criminal Court Proc. of the 27th Annual Conference of Canadian Council on Intl. L. 23, at 24 (1998). Shun of its (not-so-hidden) political undercurrents,. the ongoing trial of Milosevic may be regarded as the latest practical example of this ideaL For details of the indictment of Milosevic see, (visited 22 March 2002). On the politics of the trials and of war crimes tribunals generally, see M. Mandel, Politics and Human Rights in International Criminal Law: Our Case Against NATO and the Lessons to be Learned From It 25 Fordham International Law Journal 95 (2001); G.J. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (2000). While post-Nuremberg individual accountability for international crimes has steadily evolved, international corporate accountability ha.s stalled. The prosecution of leaders of large German industries by American Courts (sitting in oci;;upied Germany in the so-called second Nuremberg trials) for crimes against peace, war crimes, and crimes against humanity has turned out to be no more than victor's justice. For a brief insight into these trials see, S.R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility 111 Yale Law Journal 443, at 477-478 (2001 ). See P. Muchlinski, supra, note 18 at 113.

18

Shedrack Agbakwa 5. CONCLUSION

What I have done in this Chapter is to sketch some reasons why the problem of MNCs' impunity in the "Third World" cannot simply be taken on its face value as if it is only a problem between MN Cs and their "Third World" hostage states. I have tried to paint a more holistic picture of the problem by identifying some underlying actors and beneficiaries that must be effectively tackled in the quest to end the impunity of MNCs. I also instantiated the use of international law and organizations by the North as prime stratagems in pursuing state and MNC goals, goals that thrive on impunity. It is up to "Third World" (and likeminded) scholars and activists, already renowned in their unyielding tenacity, to roll up their sleeves, draw a line in the sand, dig in, and more creatively fight the impunity of MNCs. To be successful, such a struggle must relentlessly expose and agonize the myriad of forces sustaining and being sustained by the impunity, including the home state principals (political establishments), sponsors, and the various (direct and indirect) beneficiaries. In the process, this false edifice of privileged impunity will be made radically insecure and, hopefully, dismantled.

BIPASHA BARUAH*

2. Human Capabilities and Gender Justice: A South Asian Perspective

1. A BRIEF HISTORY OF GENDER AND DEVELOPMENT

Women's practical and strategic needs have been emphasized in many different contexts and within different planning frameworks during the relatively short history of gender planning that essentially commenced with the 1975 declaration of the UN Decade for Women. Before the Decade for Women, development planning concerned with women primarily focused on addressing the practical needs surrounding their reproductive role through a welfare approach that concentrated on food delivery, family planning and health care. The Women in Development (WID) school of thought, which grew out of disillusionment with the welfare approach, grounded itself in liberal feminism and actively criticized development theories of the 1970s that perceived men to be primary producers and household heads and viewed women as wives and mothers who were natural recipients of welfare. This approach was profoundly influenced by Ester Boserup's seminal 1970 work on the role of women in the processes of economic and social growth throughout the Third World. 1 The WID approach assumed that everyone would benefit and women would no longer be marginalized if they were brought into the development process along with a concurrent change in policy from welfare provision to equality. Because neoliberal economic approaches were gaining currency at the time, the integration of women into development was also deemed 'efficient' in that it utilized women's previously neglected productive potential. This approach did not challenge existing social structures or the causes of women's subordination. Therefore, the original WID approach, ushered in during the Decade for Women, was initially conceived as an equity approach that recognized women's active role in the development process as reproductive, productive and community workers. However, the political nature of this approach, which emphasized the fulfillment of their strategic needs through direct state intervention, alienated governments and it was soon replaced by the anti-poverty approach

*

Faculty of Environmental Science, York University. E. Boserup, Woman's Role in Economic Development (1970).

19 A. Anghie, B. Chimni, K. Mickelson, 0. Okafor (eds.), The Third World and International Order: Law, Politics and Globalization, 19-29 © 2003 Koninklijke Brill NV. Printed in Great Britain.

20

Bipasha Baruah

that focused on meeting practical needs surrounding women's productive role. Poverty alleviation projects and income-generating schemes for women were the most prominent features of this approach. The efficiency approach, which followed the anti-poverty approach, is currently still the most popular approach in many parts of the developing world, and focuses on the practical needs of women in all three of their roles. The most distinct feature of this approach is that it seeks to enhance women's contribution to the development process in order to ensure the efficiency and effectiveness of project interventions. Understandably, this approach continues to enjoy support in governmental and non-governmental circles because it recognizes quite correctly that a country's development process depends to a large extent on the full social, political and economic participation of women. Its major weakness, stressed among others by Caroline Moser, lies in the implicit conviction that women's time and energy are elastic and, more importantly, that women are merely instrumental to accomplishing grander goals of family welfare, poverty relief and economic growth. 2 The empowerment approach succeeded the efficiency approach and considers women's improved condition and position to be ends in themselves, rather than only helpful for accomplishing development goals. Like its predecessor, this approach continues to focus on meeting women's needs in terms of their triple roles but it departs from the top-down nature of the equity and efficiency approaches by espousing self-reliance and grassroots action towards women's goals. More recently, many activists have envisaged a rights-based approach to the development process in general, and to realizing gender equality in particular. This approach seeks to establish the achievement of human rights as well as the creation of an enabling environment in which human rights can be enjoyed as the main objectives of the development process. Because this approach transcends sectoral concerns, it can potentially encompass concepts of welfare, anti-poverty, equity and empowerment as different facets of the rights of all people. Because the achievement of human rights is the ultimate objective, efficiency arguments are not generally employed in rights-based approaches. However, a few authors like Savitri Gooneskere have deconstructed the rightsbased approach in efficiency terms and explained the benefits of legal enforceability, state responsibility and moral authority pertaining to human rights. 3 In the Asian context, the forging of women's rights and human rights movements has been impeded somewhat by the misinformed but widespread belief that 'Asian values' - based presumably upon the subjugation of individual rights in favor of collective community rights - are incompatible with 'Western' notions of autonomy and individual rights. Additionally, in South Asia strong religious traditions are integrated into state administration and governance, and there is a perception of human rights as a "Western" secular ideology C. Moser, Gender Planning and Development: Theory, Practice and Training (1993). S. Gooneskere, A rights-based approach to realizing gender equality, in M. ul Haq and K. Haq (Eds.), Human Development in South Asia 2000: The Gender Question 75 (2000).

Human Capabilities and Gender Justice

21

antagonistic to the religious and cultural traditions of the region. The Third and Fourth World Conferences on Women in Nairobi and Beijing have helped build consensus on these issues as have the research and writing of individual scholars and activists. The Jakarta Declaration for the Advancement of Women in Asia and the Pacific, for example, notes that it is increasingly being recognized that an unqualified human right to freedom of conscience and religion does not justify the manifestation of religious belief in practice and observance so as to undermine or violate gender equality. 4 The capabilities approach, which will be discussed in detail in the next section, may have evolved out of the rights-based approach and is the newest entrant that is of relevance to women in development discourse. It differs from the previous approach in that it does not explicitly talk about rights but stresses that it is imperative that human beings are afforded the social, political, civic and economic circumstances that allow them to optimally exercise their central human functions and capabilities. While this approach acknowledges the importance of local knowledge in understanding people's problems, it strongly defends universal values, such as the dignity of the person, bodily integrity, basic political rights, liberties and economic opportunities, as appropriate norms in assessing the quality of people's lives anywhere in the world.

2. GENDER JUSTICE IN THE HUMAN CAPABILITIES APPROACH The human capabilities approach, first pioneered in development economics by Amartya Sen, is based on an understanding of central human functions and capacities. 5 At its heart is the conviction that each person is an end and not a mere means to the ends of others. Sen's primary use of the notion of capability is to indicate a space within which comparisons of quality of life between nations and individuals are most fruitfully made. Instead of asking about how much in the way of resources people are able to command, this approach asks what they are actually able to do and be. Sen insists that is in the space of capabilities that questions about social, economic and political inequality are best raised. Further, he stresses that while all people should be able to live with a full menu of opportunities and liberties, economic needs should not be met by denying liberty.

3. HUMAN CAPABILITIES AND WOMEN There are several reasons why the human capabilities approach validates women's claim to economic empowerment and gender justice better than Economic and Social Commission for Asia and the Pacific, A rights-based approach to the empowerment of women, in Human Development in South Asia 2000: The Gender Question 35 (id.).

A. Sen, Development as Freedom (1999).

22

Bipasha Baruah

previous approaches that focused on welfare, income generation, efficiency or, more recently, human capital. This approach is of special relevance to women since in their multiple roles as producers, reproducers, managers and caregivers, women are much more likely to be treated as instruments of the ends of others instead of as ends in their own right. According to the United Nations Development Programme's year 2000 Human Development Report, there is no country in the world that treats its women as well as its men. Developing countries present especially urgent problems since gender inequality is strongly correlated with poverty; the South Asian and sub-Saharan African countries ranked lowest in the gender-adjusted development index (GDI) also rank lowest in the human poverty index (HPl). 6 The capabilities approach recognizes that when poverty combines with gender inequality the result is an acute and certain failure of central human capabilities. Moreover, because the capabilities approach views poverty not merely as shortage of income but as the deprivation of rights, liberties, opportunities, income, wealth, and the social basis for self-respect, it allows for the generation of a less mechanistic and more inclusive approach to economic empowerment and human development. This perception of poverty as the deprivation of basic human capabilities instead of simply as the inadequacy of income is one of the most distinguishing features of the capabilities approach and one that I believe is most valuable to discourse on gender justice. In the next few pages, I will deconstruct the human capabilities approach in the context of the social, economic, political and legal needs of women.

4. INCOME INEQUALITY, DISADVANTAGE AND CAPABILITY

The capabilities approach acknowledges that while income may be used as one of the units to measure inequality or disempowerment, it cannot always be perceived as the means to reduce inequality. Inequality in capabilities may be measured in terms of incomes but it does not necessarily follow that transferring income would be the surest way to counteract inequality. This catholicity of the capabilities approach ensures that not all forms of disadvantage or deprivation are collapsed into income poverty. This perspective meshes well with the concern expressed by others such as Cecile Jackson 7 and Martha Nussbaum 8 who argue that the concept of poverty cannot serve as a proxy for the subordination of women and that antipoverty policies alone cannot be expected to remedy gender disadvantage and disempowerment. The capabilities approach also challenges the instrumental approach employed by many development agencies where the attention to gender is justified in terms of how it facilitates 6

United Nations Development Programme, Human Development Report (2000). C. Jackson, Rescuing gender from the poverty trap, in C. Jackson and R. Pearson (Eds.), Feminist Visions of Development: Gender Analysis and Policy 39 (1998). M. Nussbaum, Women and Human Development: The Capabilities Approach (2000).

Human Capabilities and Gender Justice

23

other objectives such as controlling populations, achieving sustainable development or alleviating poverty rather than as an end in itself. By adopting a principle of each person as an end, the capabilities approach better establishes women as political and economic subjects in their own right than previous approaches driven by equity or efficiency. While the capabilities perspective does not deny that poverty can be a principal reason for a person's capability deprivation, it does stress that inequalities related to other variables such as unemployment, ill health, lack of education and social exclusion can also inhibit optimal functioning of human capability. This allows for better incorporation of the needs of individual women than previous approaches where poor women were perceived as somewhat equally disadvantaged. It also facilitates the understanding of the synergistic effects of disadvantages arising from a combination of factors such as income deprivation and the inability to convert income into capability due to handicaps such as age, infirmity or disability.

5. THE ROLE OF FAMILY, UNIVERSAL VALUES AND POLITICAL LIBERTIES The capabilities approach also addresses distribution of resources within the family quite differently from approaches that primarily concern themselves with family income. If family allocation is biased in favor of the male head of the family and male children, as is quite widespread in South Asia, then the extent of deprivation of the neglected members may not be adequately demonstrated through approaches based on family income. Deprivation can be more usefully checked by looking at capability deprivation in terms of mortality, morbidity, undernourishment, medical neglect, illiteracy and so on than can be done by analyzing income. In addition to exposing the limitations of incomebased approaches, the capabilities approach allows for the exploration of the family not just as an entity of affection and solidarity but also as an active political unit, bargaining ground, and frequently the major site of women's oppression. Another distinguishing feature of this philosophy is the defense of certain universal norms of human capability that transcend differences of culture, class and context. The capabilities approach posits that not all universal approaches are obtuse, simplistic or insensitive to cultural and regional specificity. Indeed, it stresses that universal norms are actually required if we are to protect diversity, pluralism and freedom, treating each human being as an active agent instead of as a means to an end. It proposes that the best way to hold all these concerns together is to formulate universal norms as a set of capabilities for fully human functioning, emphasizing the fact that capabilities protect, and do not erode, different human freedoms. The capabilities approach identifies central human functional capabilities such as life, bodily health and integrity, being able to imagine, think and reason,

24

Bipasha Baruah

being able to emote and have attachments, practical reason, affiliation, recreation, and control over one's political and material environment. Because each capability is deemed to be of central importance and distinct in quality, it also emphatically states that larger amounts of one cannot be substituted for another. While governments cannot hope to make all citizens healthy or emotionally balanced, since some of the determinants of those positive states are natural or governed by luck, the human capabilities approach fully expect that they could aim to deliver the social basis of these capabilities. This assertion enriches women's quest for economic empowerment by validating their entitlement to social services. It also offers less opportunity for the state to neglect its responsibilities since it implies that social opportunities and services must be created or expanded through public education, health care, unemployment insurance and childcare in addition to economic opportunities. Because the capabilities approach focuses on the agency and freedom of individuals, it also offers less scope for people to be perceived as mere recipients to whom benefits must be dispensed through the process of development and who must, in turn, respond in the manner predicted. The emphasis on civil and political liberties in the capabilities approach suggests that although the empowerment of women through employment opportunities, credit, educational arrangements, property rights and so on may give women increased bargaining power within the family and community, it is finally up to the woman herself to choose to exercise that power. 6. HUMAN CAPITAL VERSUS HUMAN CAPABILITY

In recent years, the emphasis of development economics has shifted considerably from seeing growth in purely physical terms to viewing it as a process in which the productive ability of people or 'human capital' is integrally involved. Although both the human capital and the human capabilities approach focus centrally on human well-being, there are subtle but important differences between the two. For the most part, the literature on human capital tends to concentrate on the agency of human beings in enhancing production possibilities. The perspective of human capabilities, on the other hand, focuses on the ability - the substantive freedom - of people to lead the lives that they have reason to value and to enhance the real choices they have. 9 While the two perspectives are related, they appear to measure success in terms of different achievements. In the human capital approach, the value of people is defined in terms of human qualities or resources that can be employed as investments or "capital" in production. The human capabilities approach values people as ends in themselves rather than as means towards ends, economic or otherwise. This crucial difference in values between the two approaches can have significant practical bearing on economic and social policy relevant to women. Sen, supra note 5.

Human Capabilities and Gender Justice

25

While economic prosperity may provide women with more options and means to lead more fulfilling lives, so would higher levels of education, better health care and more social insurance opportunities. These social opportunities must also be given equal value since they help people lead longer, healthier and more rewarding lives. The use of the concept of human capital, which concentrates on one important part of the picture, is a step in the right direction. The human capabilities approach seeks to broaden it, supplement it, and take it beyond economic empowerment into the realm of comprehensive human development.

7. HUMAN CAPABILITIES AND JUSTICE

Finally, the human capabilities approach introduces and links justice and the role of the law into discussions about equality, development and peace in a more forceful and convincing manner than previous approaches that left the law relatively untouched. The human capabilities approach demands legal justice for women in addition to social and economic opportunities. The capabilities approach stresses that actions such as enforcing women's constitutional rights, reviewing and repealing discriminatory laws, applying the principle of affirmative action, and providing gender specific legal education to practitioners, are vital components in the process of achieving gender equality. It asserts that justice should take priority in social reflection and not be relegated to something that, as some economists believe, is mentioned when there are no rational arguments to be made. This focus on the law is especially relevant for a region like South Asia where vast gaps remain between stated principles of gender equality under the law and practices of the state as revealed, for instance, in the deep-rooted pervasive male bias in laws concerning land and property rights. This meshes well with the arguments made by Bina Agarwal, among others, who emphasizes that unless institutionalized forms of discrimination such as women's inability to own and control landed property are eliminated, opportunities offered in lieu of such rights will merely be attempting to "treat cancer with band aids." 10 In the context of South Asia, the lack of a uniform civil code in which fundamental human rights take precedence over gender discriminatory religious customs also remains a major obstacle to the achievement of women's equal rights under the law. The assertion of the capabilities approach that the longevity of a custom does not necessarily make it right and that contributions made by religious traditions must be assessed against the harm they do provide better opportunities for rectification of covert legal injustices against women.

10

B. Agarwal, A Field of One's Own: Gender and Land Rights in South Asia (1994).

26

Bipasha Baruah 8. OPPORTUNITIES AND CHALLENGES PROVIDED BY THE CAPABILITIES APPROACH

A focus on human capabilities lends itself well to assessing quality of life in a country and asking about the role of public policy in meeting human needs. The universal central human capabilities propounded by the approach and discussed in the previous section are quite general to allow room for plural regional specification and further negotiation. The capabilities approach has significant advantages over other current approaches to quality of life assessment. It is quite well established now that an assessment that relies on Gross National Product (GNP) per capita as its sole measure quite clearly fails to concern itself with the distribution of resources, and thus can give high grades to countries with enormous inequalities. Additionally, approaches based on national production do not examine other human aspects that may not reliably correlate with the presence of resources such as infant mortality, access to education, quality of gender or racial relations and presence or absence of political freedoms. For example, while the real per capita GNP of countries like Singapore or the United Arab Emirates may place them at the very top of assessments based on production, factoring in aspects like political freedom for the first country and civil liberties, female literacy, maternal mortality and female-to-male ratios for the latter will reveal very different results. This is very relevant in the South Asian context where countries have made significant gains in per capita GNP every year but have also demonstrated continuing deterioration in the lives of the most vulnerable sections of the population. While globalization has offered the well-educated middle-class populations of South Asian countries an assortment of new career choices and economic opportunities, it has also led to the growing impoverishment of poorer people who are not in a position to reap the benefits of globalization but who have instead lost livelihoods and access to valuable resources as a result of the process. Focusing on capabilities and functioning appears to provide a much better understanding of how women are doing in different parts of the world. For example, a study of female-to-male ratios in countries in which there is no reason to assume gender discrimination in nourishment and health care, such as in European, North American and sub-Saharan African countries, and a comparison of those ratios with those of some societies in South Asia, West Asia, China and North Africa, sheds light upon the terrible phenomenon of "missing women" resulting from unusually high age-specific mortality rates for women. According to some researchers, South Asia itself may account for as many as 79 million missing women.11 This disturbing figure points to the fact that women in this region live shorter lives than men because the biological advantages that women enjoy in other parts of the world that enable them to live longer than men are diminished, if not canceled out, by systemic social, 11

Sen, supra note 5.

Human Capabilities and Gender Justice

27

educational and economic disadvantages. An approach based on human capabilities not only glaringly reveals such inequities and injustices but also unequivocally asserts women's right to work, education, health care and other entitlements that directly impact basic functioning and capability. The capabilities approach also seems to have a clear advantage over approaches that measure quality of life by polling people concerning the satisfaction of their preferences since such approaches frequently overlook the fact that desires and preferences are not always reliable indicators of what a person needs or can aspire to. The poor and deprived frequently adjust their expectations and aspirations to the low level of life to which they are accustomed. Consequently, they may not demand better health care or more education. Writing about the disparity between externally observed health status and self-reports of satisfaction about health, Sen notes that many women in his account of health surveys in India did not even know what it was like to feel healthy. 12 Martha Chen also notes in her study of a literacy project and its impact on the quality of lives of women in rural Bangladesh that many women had never thought about what advantages literacy could offer. 13 People who have been systematically deprived may fully internalize the ideas behind the system of discrimination and may begin to view their deprivation as 'natural.' Therefore, if we rely on conditioned satisfaction or apathy as a measure of quality of life, we may get results that support the status quo and oppose necessary change. If the advantages of the capabilities approach apply to approaches based on expressed satisfaction, they apply all the more pointedly to those based on local-tradition relativism in which the measure of quality of life is perceived to be the satisfaction of certain traditional preferences of a given culture. In the context of South Asia, such approaches are likely to be especially subversive to the quality of life of women who are already discriminated against with the explicit, and sometimes unchallenged, approval of religion, culture and tradition. While the capabilities approach respects diversity and encourages preservation of aspects of traditional life that appear to be rich in spiritual or artistic value, it also reserves the right to question whether people without options really endorse the lives they lead or the choices they make. Finally, the capabilities approach appears to offer more opportunities for justice and inclusiveness over liberal approaches that aim only at equality in the distribution of basic resources. Unlike such approaches, the capabilities approach stresses that human beings have varying needs for resources and any egalitarian assessment must first determine who is better off and who is worse off. To illustrate, women who have traditionally not been educated may well require more of the relevant resources to attain the same capability level justifying, for example, the Bangladesh Rural Advancement Committee's creation of a special female literacy scheme instead of a programme that distributed 12

13

A. Sen, Commodities and Capabilities (1985). M. Chen, A Quiet Revolution: Women in Transition in Rural Bangladesh (1983).

28

Bipasha Baruah

equal resources to all. The capabilities approach encourages affirmative action schemes that are generally frowned upon by liberal approaches. 9. CHALLENGES, AMBIGUITIES AND COMPLICATIONS

The human capabilities approach appears to provide a vastly better foundation for a development ethic than the alternatives of GNP or utility especially with respect to promoting equality in gender and across races, castes and economic strata. Nevertheless, a critical analysis points to some specific shortcomings in the development and operation of this very ambitious foundation. One of the first issues that require clarification is the consistent focus of the capabilities approach on autonomy and 'strong separateness' of the individual as one of the essentials of a good human life. 14 Though in practical terms the inclusion of these items may hold immediate beneficial implications for women, and more generally for groups that have been deprived of autonomy and freedom in the name of a putative common good, it appears to assume a superiority of individualism over communitarianism that threatens to be controversial. This is especially germane to the context of Asian cultures where there is a general deep-rooted acceptance of the greater moral authority of community values over individual rights. Sen, for example, writes that many rural South Asian women will almost invariably offer information about everyone else in the family but themselves when asked about their individual well being. 15 The concept of autonomy may be perceived as foreign and, therefore, undesirable by people who have been conditioned to sacrifice self-interest in the interests of a collective. In some cases the reason for caution may be justifiable since the capability to exercise practical reason and to use one's cognitive powers in the planning, shaping and managing of one's life need not necessarily be channeled into individualistic activities and goals. Practical reason can be carried out in participatory forms as well and aspire to the articulation and achievement of community ends. Therefore, the degree to which separateness is envisaged, or ought to be envisaged, as a demand for individual autonomy needs to be clarified, examined and, perhaps, defended. The next challenge for the implementation of the capabilities approach arises from the assertion that all human capabilities are of central importance and distinct in quality and, therefore, the need for one cannot be satisfied by giving a larger amount of another. There are good reasons for resisting agglomeration of separate values and part of what distinguishes the capabilities approach from utilitarianism is its appreciation of the need to preserve and nurture a variety of human capacities in a suitably complex way. While the provision of all these capabilities to as many people as possible may serve as a long-term 14

15

M. Nussbaum and J. Glover (Eds.), Women, Culture and Development: A Study of Human Capabilities. ( 1995). Sen, supra note 5.

Human Capabilities and Gender Justice

29

goal, limited resources in the face of enormous needs require that trade-offs be made and priorities be set. Where people are faced with starvation and scarcity in the crudest form of too many people and too little food, it may seem absurd to occupy oneself with the recreational opportunities available to people. If the capabilities approach is to become a useful tool for development policy, its advocates will have to face up to the fact that it may be impossible to help all the people in all ways all the time. Priorities do need to be set about which capabilities should be attended to first and although setting priorities does not mean substituting one value for another, trade-offs cannot realistically be entirely avoided either. Priorities, and possibly trade-offs, must be considered not just among various capabilities but also among groups of people in whom they are to be advanced since we cannot, in the short-term at least, hope to benefit all people equally. Additionally, while it may still be premature, given the failure of any society in the world to attain a threshold level for the complete capability set for all persons, the capabilities approach needs to provide some indication of how persistent inequalities between the races or genders will be addressed after threshold levels have been reached. Finally, the major strategic challenge for the human capabilities approach may be the need to urge governments and civil society organizations to understand it and to commit to working towards its principles. Most state interventions in South Asia, for example, regardless of political persuasion, have been preoccupied with employment and income generating schemes as the means of empowering women. As a result, measures of women's empowerment and gender justice continue to revolve around employment and labor force participation and not alleviation of burden of domestic labor, increased political participation or equal property rights. Barring some notable exceptions, NGOs have also shown unwillingness to involve themselves in controversial issues despite continued assertion by scholars and practitioners that in addition to economic opportunities, women need more potent political power and independent and equal rights in land and property ownership to be able to empower themselves to have equal footing with men in society. At least in South Asia, the theoretical vision for human development appears to be more than a few steps ahead of policy and practice.

UPENDRA BAXl 1

3. Operation Enduring Freedom: Towards a New International Law and Order?

l. INTRODUCTION

There is no manner of doubt that visions of world orderings, and the role of international law, stand unalterably transformed by the catastrophic events of September 11, 2001 and the current response of the 'international community.' Perhaps, this period will be recalled and recounted as marking a turning point of post-modern international law. We can only speak to these critical events (in the sense that Lyotard endows) as they unfold before our own eyes, from our own unhappy situatedness; the Clio's couch, the disengagement that only distance may bring, is not for us the gift of time. We have to struggle, as best we can, to make sense of current developments, amidst ever menacing forms of infliction of traumatic human suffering. This struggle is necessary, especially in an emergent global milieu rife with what early Habermas was to name as 'systematically distorted communication.' The grave narrative risks that one runs in writing about September 11, and its aftermath, may not be minimized, even under the massive inhibitory injunctions arising from 'either you are with us or with them' context. The risks are real enough and these are not just those that flow from the carefully contrived devices of silencing any critical discourse. The risks go beyond to any nonadversarial construction of ethical discourse that speaks to the tasks of human justice under conditions and contexts of terror, in ways that while respectful of lived experience of human suffering translates it, with full integrity, to the Professor of Law, University of Warwick. This essay has been long in the making. Initially presented to the University of Goa Political Science Department Seminar (September 12, 2001) and at a seminar at Delhi School of Economics, Department of Sociology (September 14. 2001), it stands now based on a Keynote Address, Osgoode Hall Law school Conference on Third World and International Order: Law, Politics and Globalization (October 13, 2001). I acknowledge the gracious invitations by Peter de Souza (Goa), Deepak Mehta (Delhi), and Obiora Okafor and Karin Mickelson (Osgoode Conference.) The present version [in print: Warwick Electronic Journal on Globalization, Development, and Justice, 2002] further revises this latter text.

31 A. Anghie, B. Chimni, K. Mickelson, 0. Okafor (eds.), The Third World and International Order: Law, Politics and Globalization, 31-46 © 2003 Koninklijke Brill NV. Printed in Great Britain.

32

Upendra Baxi

tasks of devising just and humane futures. By no means unique, the risks and tasks need to be undertaken/performed, in Sisyphean modes, in every generation, endeavouring to preserve the fragile and hard won 'enclaves of justice' amidst the real and virtual destruction of 'justice constituencies. 2' The narrative risks, thus translating individual biographies into social texts, and texts of power into texts for justice, I believe, pale into insignificance when set against the background of ever proliferating justificatory strategies and stratagems, on all sides, for the practices of politics of mass cruelty. The tragic cruelty of September 11, and its still unfolding aftermath, marks the beginning of the end, in more decisive ways than ever before, of hegemonic patterns of force monopoly on which much of modern/contemporary international law 'rests.' Non-state actors have demonstrated an awesome ability even to render the solitary Superpower eminently vulnerable. Most states in the South, but not only these states, have been nearly constantly subject to mass 'terrorism,' no matter how constructed. What makes September 11 poignantly inaugural is that it strikes terror into the very heart of the world's leading Global City and strikes also at the might of the Pentagon, exposing the post Cold War solitary hegemonic superpower to acute crises of nervous rationality. It thus initially, and understandably, leads to mass politics of justice, hysteria, and revenge, which then somehow needs to be translated into a radical renovation of the received international law languages of self-defence, collective security and world peace. Of necessity, this translation remains, as it were, the work of time, inviting acceleration of the future history of humankind. Sovereign equality of all states, including the strong states, now also signifies equality in state vulnerability; that vulnerability also begins to operate as a source of strength. Already new forms of articulation of legitimation of global power are in place: 'North' global patriotism, a species of globalizing neoKantian version of 'cosmopolitanism', now in the making, entails citizen allegiance to 'war against terror,' the ever escalating sharp division between 'global' citizens and violent 'outlaw' human beings. A New Cold War seems now in the making, in which 'constitutional patriotism' (to evoke the phrase regime of Jurgen Habermas) will, yet again, strive to justify global reproduction of rightless peoples in service of 'our' common future. 2. TRANSFORMATIONS OF INTERNATIONAL ILLEGALITY

The critical events disrupt the extant Westphalian notions of international legality, and visions of world order in many precipitate modes. First, performative feats of global diplomacy now aim to produce a resilient consensus, not entirely ephemeral, providing 'justifications' for a global 'war' against 'terrorism.' For well over quarter century (since 1972, when the General See, for these fecund notions, Julius Stone, Human Law and Human Justice (1996; Sydney, Maitland Publication; reprinted 1999, New Delhi, Universal Book Co. Pvt. Ltd.).

Operation Enduring Freedom

33

Assembly placed 'terrorism' as a major concern for the United Nations system) states have, while rhetorically condemning terrorism, failed to produce an operative consensus on its definition. 3 Now, almost overnight conscientious objections to a cooperative production of a definition of international terrorism vanish before our own eyes; what we witness today is the emergence of a regime of instant customary law constructing the notion of "mass international terrorism" and a repertoire of 'appropriate' global responsiveness. 4 Second, unsurprisingly, a 'network' global society now generates 'network' international law. The 'war' is against networks of terror, comprising actors from many different nationalities, dispersed across many state territories and the 'space of flows' 5 that constitute a defining feature of globalization. The global 'war' against terror is a war against de-territorialized agents and agencies, scarcely recognized as subjects, or even objects, of international law. It is also an emerging necrophilic network of 'anthraxic' terrorism, no matter how variously described as being 'endogenous' or 'exogenous'; a truly catastrophic incarnation of a 'world without borders.' Third, all this entails a new kind of networking of orders of state sovereignties, where a large number of national, regional, and global agencies crisscross to fashion unusual, even extraordinarily shifting, yet 'vital' strategic alliances. Ifwe were to understand future histories of terrorism in relation to globalization (especially in terms of accessibility of technologies of mass violence and 'militarization of ethnicity6 ') and to the structural inequities of global trade and production, this is a 'war' that will most likely continue across generations, raising See, for a recent review, Alex Obote-Odora, 'Defining International Terrorism,' 6 Murdoch University Electronic Journal of International Law http://www.murdoch.edu.au/elaw/ issues/v6nl/obote-odora61_text.html( 1999,) visited February 9, 2002). We must qualify the description 'instant customary law' with reference to two important conventions: The International Convention for the Suppression of Terrorist Bombings, 1997,which came into force on 23 May 2001 (with 25 parties, out of 58 signatories, the latter including the United States) and the 1999 Convention for the Suppression of Financing Terrorism (not yet in force.) In a sense, the current near universal agreement concerning the description of the attack on the Global City (New York) and on Pentagon and measures to suppress financial resources for terrorist networks mark the emergence of an 'incipiently' treaty-based custom. See, for the elaboration of this notion. Manuel Castells, The Rise of Network Society 376-428 (1996; Oxford, Blackwell); and Michael Hardt and Antonio Negri, Empire (2000; Harvard, Harvard University Press.) The latter observe, with near prophetic insight, that 'what we are witnessing today is a process of the material constitution of the planetary order, the consolidation of the administrative machine, and the production of new hierarchies of command over global space' (p. 19.) They presciently reach the heart of the current situation when they describe the 'juridical concept' of the Empire as comprising the elucidation of 'a right that is affirmed in the construction of a new order that envelops the entire space of what it considers civilization, a boundless, universal space; and ... a notion of right that encompasses all time within its ethical foundation. Empire exhausts historical time, suspends history, and summons the past and future within its own ethical order. In other words, Empire presents its order as permanent, eternal, and necessary' (p. 11.) See also Note 8, infra, for the 'mirror of production' of a single and singular juridical space. A term first used by Donald Horowitz, Ethnic Groups in Conflict (1985: Berkeley, University of California Press.).

34

Upendra Baxi

a whole menu of intractable international law and policy questions, issues. I randomly name these here, fully aware that they invite ceaseless doctrinal/ normative reformulation: • How, and through what processes of production of legitimate international law normativity, is the notion of 'mass international terrorism' to be constructed? Is cross-border terrorism affecting two states an aspect of 'mass international terrorism'? If so, what regimes of general and specific duties arise, for the community of states, and for the solitary superpower prone to pursue unilateral police action? What duties ensue for the United Nations system? • How do we rework/recontextualize the requirements of reasonableness and proportionality in respect to use of such force? Is 'collateral damage' in acts of self-defence an international tort, attracting duties of restitution, reparation and rehabilitation? In what ways may we refashion the current regime of silences in the ongoing work of the International Law Commission, directed to progressively recode the international law of principles governing State responsibility? • When these networks of terror are concentrated within sovereign state territories, does the use of force against them make the state in turn a 'victim' state? Does then the 'victim' state, configured here as recipient of unilateral or collective military action, have a right to self-defence against 'police' action networks of global terrorism? What may be said to be the scope and nature of this right? • When sites of terrorist acts are authoritatively located (in terms of direction and control, or siege social) in specified sovereign territory of a state, does the right of self-defence extend to selective military operation against specified 'targets' without involving consent of that state? • What peaceful means and due process, by way of exhaustion of local remedies in combating acts of mass terrorism are owed to a state/peoples subjected to 'collective,' whether so 'thinly' or 'thickly' disguised, acts of self-defensive threat or use of force? • Do, 'thinly' or 'thickly' disguised acts of collective self-defence extend to restructuring governance in states that may be said to help/harbour terror networks? If so, what principles of international law and jurisprudence of human rights may be said to arise? • What duties under international humanitarian law arise for relief and rehabilitation for collective/mass exodus? May neighbouring states justly 'seal' their borders during the exercise of individual/collective self-defence? • How may we develop non-discretionary norms in this respect that compel tasks of international development/rehabilitation assistance to human populations actually exposed to destruction of individual and collective orders of hurt/injury/mayhem to their actual/potential life projects? • Is there a collective right of self-defence for a 'victim' state, when terrorist attacks produce preponderant harm to a single state?

Operation Enduring Freedom

35

• In what situations may networks of terror be assimilated to the principles governing state responsibility? How may we construct the categories of 'helping' and 'harbouring', constructed in egalitarian, non-discriminatory modes, to inform such potentially periodic, even endemic now, enactments of 'good governance?' • Does the law of war apply to 'war' against terrorism? How may we refashion the recently adopted Statute of International Criminal Court? • How may we construct an international legal order that disengages reprisal against acts of 'mass international terrorism,' from the potential for their redescription as constitutive of hegemonic, individual or collective, State/UN 'terrorism?' This, to my mind, is an issue of singular importance in any so-called, or 'real' combat against acts of 'mass international terrorism 7 ' These questions need, of course, to be strategically silenced, as is the case now, in the wake of actual episodes of 'mass international terrorism'. Yet any meaningful approach to renovation of the patterns of international legality, even of a global 'rule of law' summons close advertence to these, and related, issues. Even though not constituting any estate of their acts of normative free choice, lawpersons of the early 21st Christian Century thus stand endowed/burdened with a wholly new programschrift. Much of what is left of the future of human rights 8 will depend on the 'daring' with which they address this agendum. See Salman Rushdie, Note 11, infra. See, generally, Upendra Baxi, The Future of Human Rights (2002; Delhi, Oxford University Press.) In the post-September 11 context, anti-terrorist laws and measures have materialized worldwide; indeed there seems to be a competitive scramble to perform 'better.' Already, in many parts of the South (but not only there) any dissent from or protest against their Draconian nature, hitherto unthinkable in peacetime, the laws and measures that enforce the plenitude of jurisdiction of suspicion, is regarded as anti-national, being anti-global. Globalization of internal and transnational security, law and order and order, measures, invite labours of a 'global ethnography,' a la the exemplary genre of Global Ethnography: Forces, Connections, and Imaginations in a Postmodern World (2000; Berkeley, University of California Press, Michael Burawoy et. al. Eds.) The current global wave of anti-terrorism laws and measures include: long preventive/pretrial detention, secret, summary or military tribunals, abbreviated due process, and severe mandatory sentences, including death penalty. The 'sinister overreach' of the 'anti terrorism state machines' has now reached a point when even the European Union is contemplating the Union wide arrest warrant - a 'mighty weapon ... by no means confined to the terrorist emergency that has given it life' but one which will extend to inchoate 'crimes' such as 'racism,' 'xenophobia' and 'swindling'; as proposed, this would also routinely extend to 'every crime carrying a sentence of twelve months and more': see Hugo Young, 'European Justice Demands the Glory of British Liberty,' The Guardian, February 5, 2002, p. 18. In sum, it is this 'sinister overreach' of overall security response that poses a grave challenge to the hitherto not so fragile febrile vitality and resilience of human rights cultures worldwide. Mary Robinson, the United Nations High Commissioner for Human Rights, has highlighted the challenges thus: No one should underestimate the difficulties of dealing with terrorism under the rule of law. As a citizen of Ireland, I certainly do not. The international human rights and humanitarian

36

Upendra Baxi

3. CAUSATION AND AGENCY

The emergent new network of international legality remains based on an ontology of the (violated) Self and the (violating) Other. This initial dichotomy, however, turns out to be unseemly problematic. The problematic here stands furnished by the choice of ways (the privileging) of collective representations of the violating and the violated Self. The World Trade Centre victims comprised diverse nationalities, including persons from the South, co-equally confronted with tragic mayhem. If we were to construct the violated self as a multifarious, multitudinous collective site of hurt, then no one State may non-dialogically collectively personify the violated self. There is room for deep contestation concerning the 'dialogical' processes

that invested the nature and scope of military action against the Taliban regime in Afghanistan. I do not, for reasons of space, address this contestation here. Were one, however, to adopt a fully Habermasian position (or even somehow extend the Rawlsian notion of 'overlapping consensus' to inter-state spheres), there is, one needs to concede, space for discomforting argumentation either way. If, however, we were to construct the violated self as marking instant global birthing of a deeply entrenched localized/glocal community, in terms of mayhem in the World Trade Centre and in relation to the Pentagon, it may emerge as distinctively American, territoriality here constituting the 'essence' of representation. This remains deeply problematic. Nothing in principles attaching to territoriality, as we all know by now, authorizes, manifestly collective selfrepresentations, despite the surfeit of conceptual 'collective' conceits that mark the birth of the practices of global, or globalized, 'we-ness.' The violating Other turns out to be a veritable cornucopia! We know, from experience of histories of non-state terrorism, that while some acts stand acknowledged with the power of authorship, most remain amorphously anonymous. In the latter situation, the violent Other has to be made legible through 'legitimate' acts of global social construction. This legibility/legitimacy issue may be resolved, with a degree of moral authenticity that acknowledges the anonymous agency of the violating 'Other' network self or it may be resolved by the play or dramaturgy of hegemonic global power. This turns out an extremely complex and contradictory realm in situations that overwrite explicit denial by 'named' violating Other into acts

standards allow for flexibility in emergencies but the standards still apply and must be upheld .... States have painstakingly built up the international standards. In these difficult times for human rights we should be seeing a strong affirmation of these standards. If we do not, we are creating a dangerous precedent that will surely come to haunt us. See http://www.independent.co.uk\story.jsp?story = 115264. (I thank Professor Burns Weston for initially drawing my attention to this important statement.).

Operation Enduring Freedom

37

of affirmation/ascription of collective authorship of mass international terrorism. The issue here, beyond the play of power, stands defined as a Derridean undecidable aporia, 9 or Lyotardian dijferend (speaking to us of the incommensurability of discourses) 10 in the sense of ascription of authorship of a terrorist event/happening beyond the 'original' intention, no matter how one may situate the ethic of terrorism generally or in a specific circumstance of international mass terrorism. The non-post/pre-post modernist state or civil society actors may think that the issue of identification is really not at all undecidable or not that undecidable. They think typically in the language of causation; put another way, the issue relates to ways of identification of the source of agency for acts of 'mass international terrorism', even in face of overt denial/contestation by the named agents. In responding to the actual events of terrorism, strategic decision makers need, of course, respond to what (in an Aristotelian sense) constitute the 'immediate' rather than the 'efficient' cause, whereas 'justifications' for terrorist performances stress the efficient or the 'root' cause. Global rhetoric in the 'war' against mass international terrorism needs to straddle this dialectic of causation; 'walking with two legs' is, of course, the current rhetorical answer. That is, this 'war' is both immediately and futuristically both a 'war' against the immediate and structural causation of mass international terrorism, as revealed/exposed by the recent Davos/New York Global Forum discourse and the British Prime Minister's Tony Blair's current intrepid excursus in terms of acts of reading mass impoverishment in sub-Saharan Africa, and elsewhere in this unnamed/ unnameable wide world, as a permanent invitation to the North to do at least some indeterminate something that prevents the translation/spillover of acts of contemporary global injustice into acts of mass terrorism directed against the North. This sort of, however instrumental, discourse has the merit of foregrounding the hitherto ineffectively recognised tasks of global justice, at the very least of the removal of the North hegemonic causes of structural global inequity. Reverting to causation, the obstinate problem of moral mistake/error remains. Logically, we must concede that those who somehow 'justify' mass international terrorism and those who inveigh and act against it may also, perhaps equally, be variously morally mistaken in their grasp of causation. The contemporary networks of terror urging jihad against the United States, no matter how described, may (as much of the 'enlightened' global opinion thinks it is) be morally mistaken, at least on the ground that peoples' sufferings are not wholly as exhaustively caused by 'imperialism,' and that on a deeper analysis may as well be, immediately and efficiently, caused by their own

10

See the illuminating discussion on the 'political limits of logic and the promise of democracy' in Richard Beardsworth, Derrida & The Political 46-97(1996; London, Routledge.). Jean Francois Lyotard, The Differend: Phrases in Dispute (1998; Minneapolis, University of Minnesota Press.).

38

Upendra Baxi

various orders of the Corrupt Sovereign, no matter how aided and abetted by global imperialism. 11 By the same token, we ought to concede that the extraordinary mobilization of the globalizing middle classes throughout the world following September 11 stands currently contrived as avoiding this logic. Official and political constructed rhetoric labels, with extraordinary felicity, those that raise such logic as 'terrorists,' suggesting that the worship of state identified immediate causes is the only way to effectively combat network/hegemonic 'mass international terrorism.' This poses the issue: How may we dis-/re-engage ideological propaga-

tion of 'mass international terrorism' from/with actual authorship of acts of terrorism and ethically grounded global conduct/combat against these?

Given the fact, and the potential of, 'networks' of terror that decentralize and disengage hierarchies in execution, even planning, of such acts, the possibilities, even probabilities, that one may be mistaken even in the identification of immediate agents/executors of mass international terrorism obstinately re-emerge. The question has arisen, even within the epistemic communities of strategic decision-makers, as to how may bright lines in 'hot pursuit' be drawn in the identification of networks of terror. Having named the Taliban ruled Afghanistan a site of mass international terrorism, are they after months of massive and rather ferocious air strikes against its territory and peoples, entitled (and if so with what justifications?) then to name territories of states B, C, D, (in the current situation, the Philippines, Malaysia, the Sudan, Iraq and now even Iran) and other states as zones of hostile 'counter terrorist' operations requiring massive, and when 'necessary' unilateral American military action? If the insignia/marker of source of 'terrorism' remains constituted by the manufacture, and potentiality of use of weapons of mass destruction, where, indeed, may one ethically divide the North/South' bright lines' in this sphere? Not wholly incidentally, we may ask whether these practices of 'naming'/attributing the domicile, whether of choice or necessity, to the South nations mask the emergence of new forms of neo-colonization in a so-called globalizing world. This current discourse of State epistemic communities unfortunately amounts to a revival of the highly, and rightly, discredited 'domino theory' used to justify the American intervention in Vietnam War, with equally, perhaps more, disastrous impacts on the conduct of world politics. Put another way, is the whole South world, all over again, to be made into a battleground against mass terrorism, on a notion of causation that declines to draw sensible limits and boundaries in the 'war' against terrorism? This newly-emergent global, network international law, at the end of the cruel current day, essentialises the identities of the violating and violated Self in a neo-Rawlsian discourse, in which societies of well-ordered peoples remain

11

See, for example, Salman Rushdie, 'Anti-Americanism has Taken the World by Storm,' The

Guardian, February 6, 2002, p. 18.

Operation Enduring Freedom

39

declared to be in permanent hostility against the 'outlaw' peoples. 12 To belong to the global society of well-ordered peoples, States have now a duty to 'stand up and be counted.' States that fail to do so remain inevitably designated as 'helping' and 'harbouring' terrorism and in turn thus invite redescription as being 'outlaw societies.' However, 'helping' and 'harbouring' regimes stand in the contemporary discourse as ineluctably Eurocentrically demarcated; geophysically concentrated bases of international mass terrorism warrant full-scale acts of war; dispersed networks of support for terror (in the international finance and banking markets, for example) need to be handled with gentle, even gracious, persuasion. South State failures in 'curbing' terrorism invite belligerency; North state failures necessitate merely reflexive State policy; the former constitutes the realm of punishment, the latter the realm of discipline. This inaugural discourse marks the production of new contexts for construction of politics of international cruelty, directed against 'causally'/casually identified agents/agencies of terror, and concerted regimes of 'global' response. Non-State epistemic communities (global solidary networks of human rights and New Social Movement communities) need to recover their initial innocence/incoherence in the wake of September 11, and its aftermath, if they are to remain in the 'business' (for, against all nostalgia, everything is now captured in the images of market/business!) of speaking to the possibilities of just human futures. 4. TOWARD A NEW ORDER OF INTER-STATE CONSENSUAL OBLIGATIONS This 'network' conception of the new law of nations in the making incarnates a new version of sovereign equality of states; that value is posited as being under threat, and a common duty of all states is now said to emerge; a terrorist attack against a hegemonic superpower is represented as the very epitome of endangerment of the very basis of contemporary international law and even human 'civilization.' New epistemologies, new 'final vocabularies', in the ironic Richard Rorty genre of pragmatic sense and sensibility, 13 faute de mieux, are now in the making, in ways that subserve as well as threaten the rolled-up values of the doctrine of sovereign equality of states, human rights, and much else besides. This new order of concrete 'consensual' duties seems to make otiose distinctions between the First, Second (or what remains of it) and the Third World, the latter always up, as it were, for 'grabs' by the patterns of One - superpower 12

13

John Rawls, The Law of Peoples ( 1999;Cambridge, Harvard University Press.) The current situation was not quite anticipated by that gifted philosopher but his insistence that peoples of well-ordered societies have a common obligation to use force, when persuasion fails, does provide justificatory framework for the Global Coalition Against 'mass international terrorism'. Richard Rorty, Contingency, Irony, and Solidarity (1989; Cambridge, Cambridge University Press.).

40

Upendra Baxi

hegemony. 14 The 'Third World' hermeneutic horizons of understanding of structural production of global terror need now to be structurally adjusted in terms of the preferred hegemonic Euroamerican construction. The 'war against terrorism' is based on carefully cultivated/manufactured genesis amnesia: discourses concerning the immediate/proximate, as well as final, causes of terrorism remain exposed to the instant indictment of being globally 'politically incorrect.' Distinctions are being reworked (already before September 11,at the dialogical site of the United Nations Durban Conference) between historic forms of 'mass international terrorism' (slavery, apartheid, racism, colonization, and the Cold War) and its new forms. The only history, on the presently constituted hegemonic notions of terrorism, relevant for global action is the history with a specific date: September 11,2001. A new order of politics of global memory now stands swiftly inaugurated. But struggles for visions of a more egalitarian and cosmopolitan world order tend to resist, for weal or woe, this 'new historicism' in the construction of international mass terrorism. And this genesis amnesia marks an incipient distinction between performances of 'mass international terrorism' and geopolitically localized transborder terrorism; the latter, at least for the time being, remain subject to differential constructions of international legality/illegality. The ontological robustness of Realpolitik is already mutating this distinction, for example, by the 'post' - coAfghanistan extension of search and destroy missions in the Philippines or Malaysia. 15 This celebration of war against terrorism must be read as directed to make the North less vulnerable than the South from terrorism because histories and narratives of terrorism have deeper social and political origins than the scripts of September 11, and its aftermath, may suggest. The current 'war against terrorism' ill serves its stated purposes and pursuits when it reads into the attack on the World Trade Centre and the Pentagon the entire history of the origins of the post Second World War and post Cold War terrorism. There are indeed, other histories of 'terrorism' and 'counter terrorism.'

5.

TOWARD A GLOBAL MULTICULTURALISM?

Contemporary forms of mobilization of the newly installed discourse on international terrorism entails deference to forms of multiculturalisms that serve, primarily, the free flow of global capital. The first is symbolized in the archetypal figure of the British Prime Minister taking time off to read the Holy Koran, so as to authoritatively proclaim that an 'Islamic terrorist' constitutes 14

15

See, Lea Brilmayer, American Hegemony: Political Morality in a One-Superpower World (1994; New Haven, Yale University Press), developing the thematic of a 'liberal theory of international hegemony' (p. 176) in ways that may justify, with all attendant ethical/normative complexity and contradiction, 'hegemonic intervention' (pp.153-66). The operational means thus adopted revive some the questions we noted in Section 2 of this essay.

Operation Enduring Freedom

41

an impious oxymoron! Few will disagree. But the delinking of ethnicities and civilizations from constructions of 'mass international terrorism' adds simultaneously value to logics and languages of multiculturalisms, pluralisms, contemporary human rights as well as internal state security programmes. The collective, though conflicted, interests of global capital in the 'war against global terrorism' require no elaboration, given its manifest power to disrupt contemporary economic globalization processes. This 'war' is then posited as historically necessary. But it is difficult even in the moment of current vicissitude to ignore the relation between forms of multiculturalism and global capitalism; Zizeck guides us to the insight that The relationship between traditionalist imperial colonialism and global capitalist self-colonization is exactly the same as the relationship between Western cultural imperialism and multiculturalism. Furthermore, the multiculturalist respect for the Other's specificity is the very form of constructing one's superiority such that practices of multiculturalism may signify "a disavowed, self-referential form of racism, a 'racism with a distance' ..." 16 For these reasons, the diplomacy about this 'war' is indeed, agonizing, and not just for its principal exponents: multiculturalism is the civic religion of globalization and the war diplomacy (as the hapless Italian Prime Minister, vaunting Judeao-Christian traditions as more hospitable to 'democracy,' 'rule of law,' and 'good governance' soon, unconvincingly, discovered) may not explicitly breach the conduct of Euroamerican terms of 'racism at distance.' The Operation Infinite Justice/Enduring Freedom is a complex, even extraordinary, register of representations. Extraordinary because it stands represented not as a war against people; nor as a war against a community of faith; it is rather a 'war' of Reformation, one in which the world's leading religious traditions have secularly to be interpreted as forbidding the use of terror to make a human rights or global justice statement. How this is to be rendered sensible to deeply pious peoples who represent postmodern 'secularists' as 'Satanic' poses profound problems for the construction of the preferred models of global multiculturalisms? 6. THE STRUCTURAL ADJUSTMENT OF THE DOCTRINES OF JUST WAR

All this prepares way for the enunciation of a new doctrine of 'just war' in the halcyon days of globalization. Terrorist acts stand represented as a strike at the heart of globalization, conceived as the 'free flow of space'; 'terrorism' disarrays the global civilization brought about by post-Fordist flexible accumulation, whereby global capital creates and sustains wholly new patterns of 16

Slavoj Zizeck, The Ticklish Subject: the absent centre of political ontology 216 ( 1999; London, Verso).

42

Upendra Baxi

international division of labour, 17 and undermines the much vaunted relationship between development and freedom. 18 People, rightly or wrongly, persuaded to think otherwise, remain denied of any authentic voice. But the pre-modern (though for that reason no less crucial) discursive traditions of 'just' war, in its theological and secular political incarnations, embrace not only the pursuit of just objectives but also of just means to achieve these. 19 On a 'good faith' reading of it, the current discourse of the politics of intergovernmental desires seems, however uneasily, to straddle both the dimensions. Hi tech depersonalisation of the modes and means of delivery of mass violence/violation enact a divorce between just objectives and just means to pursue these. And of necessity the former must remain contested, even in this radically postmodern world, which at the end of the day, cruelly and unconscionably, entertains different and human rights negating measures/indicators of the respect for the value of human life in the North and the South.

7.

GLOBALIZATION AND TERRORISM

However, concerted international action bears an ambivalent potential for contemporary economic globalization. To be sure, new forms of production of global social cooperation directed to combat global networks of criminality will emerge. Thus, for example, fiscal 17

18 19

See, Malcolm Waters, Globalization 65-96 (1995;London, Routledge); Scott Lash and John Urry, The Economies of Sign and Space (1994;London, Sage.). Amartya Sen, Development as Freedom (1999;0xford, Oxford University Press.). 'The traditional concept of just war involves the banalization of war and the celebration of it as an ethical instrument, both of which were ideas that modern political thought and international community of nation-states had resolutely refused. The two characteristics have reappeared in our postmodern world; on the one hand, war is reduced to police action, and on the other, the new power that can legitimately exercise ethical functions through war is sacarlized', Michel Hardt and Antonio Negri, Note 4, supra. I do not address here the important issues of just means; this entails a closer examination, than this essay warrants, of the international law established standards of reasonableness and proportionality of the United States exercise of military might in the current, still ongoing, operations. Nor can I address here the 'justificatory' strategies instrumental to the elaboration of the just means,' except by way of saying, bereft of closer analyses, that a staggeringly vast onus probandi lies, under the extant normative international law regime, heavily on the United States, and the 'allied,' still sustained, use of military force. Post-facto justifications of massive use of force, those that invoke 'good governance (in terms of return to the 'rule of law,' 'democracy,' and a revival of the motto 'Women's' rights are Human Rights' need to be deciphered, an admittedly complex and contradictory exercise, in the context of the unmaking during the very last phase of the Cold War) of contemporary Afghan polity and society. I do not essay this task here; nor do I address the current politics of global aid and assistance in terms of the globalized reconstruction of the constituent power, by which I signify the prowess of global economic constitutionalism, pitted against the 'million mutinies' that, for weal or woe, lie ahead, not just locally but globally. See, Antonio Negri, Insurgencies: Constituent Power and Modern State (1999; Minneapolis, University of Minnesota Press; Muarizia Boscagli, Trans.).

Operation Enduring Freedom

43

and monetary warfare against organized global criminality now assumes a welcome salience. But this current programschrift of global action stands structurally constrained by the crucial defining features of contemporary economic globalization, 'predicated on increasing movement of people, ideas, capital, and objects within and between places.' 20 It is not clear, thus, how the anarchy of hyper-reality of international banking and financial markets may be re-regulated in an epoch of deregulation, in ways that distinguish between the 'legitimate' and 'terrorist' recourse to instant networks of international transactions, the Tom Wolfe Bonfire of Vanities genre, in stocks, bonds, and currencies. 21 Nor are there in sight any prospects of effective regulation of world arms trade (nearly monopolized by the five permanent members of the Security Council) that eventually supply the most crucial hardware for 'terrorism.' Attempts at regulation of bio warfare lie still congealed in the legal life histories of war veterans of the Agent Orange generation. Even today, North State constructed discourses concerning 'mass international terrorism' do not speak to the failed treaty regimes directed at prohibition of biological and chemical warfare. The re-nuclearization of the world, signalled by the United States unilateral denunciation of the Anti-Ballistic Missile Treaty speaks with different voices, in this 'war' against international terrorism, to the scary prospect of nuclear self-help by non-State groups/formations. Understanding globalization in the twenty first century entails a grasp of the state as (in terms of Deluze and Guttari) 'the nomadic war machine.' 22 It will then disserve its manifest intent by ignoring the linkages between organized and illicit arms traffic. Further, the 'war against terrorism' depends a great deal on renovation of dominant world capitalist orders in terms of combating corruption and bribery at home and abroad. A world safe from 'mass international terrorism' will also signify a fashioning of world order that seriously attends to radical evil in defence deals, armaments traffic, mobilization of narcotic drugs cartels, money laundering, dumping of toxic (including nuclear) products and wastes in the South, regardless of security, foreign policy, 'development,' and 'good governance' objectives Manuel Castells describes acutely, though not in these precise 20

21

22

Eve Darian Smith, 'Structural Inequalities in the Global System,' 34 Law & Society Rev. 809, at 810 (2000.). See, David Harvey, The Condition of Postmodernity 161,293-95 (Oxford, Blackwell.) Zygmunt Bauman, in his Globalization: The Human Consequences pp. 66-67 (1998; Cambridge, Polity) recalls for us the estimate of Rene Passant, who calculates that 'purely speculative inter-currency transactions reach a total volume of $1,300 billion a day - fifty times greater than the volume of commercial exchanges and almost equal to the total of $1500 billion to which all the reserves of all the 'national banks' of the world amount ... "No state ... can 'therefore resist for more than a few days the speculative pressures of the 'market'.". The State, as a 'diffuse and polymorphous war machine' is a 'nomos very different from the 'law,' which invests 'the war machine, as a nomad, the abolitionist dream and reality.' Giles Deluze and Felix Guttari, A Thousand Plateaus: Capitalism and Schizophrenia at 360, 385 ( 1987; Minneapolis; The University of Minnesota Press.) .

44

Upendra Baxi

terms, as 'the global criminal economy.' 23 It is as yet not clear how all this may be accomplished within the commanding heights of the theologies of neoliberalism. The Global coalition against 'mass international terrorism' makes historic sense only in terms of re-democratisation of Euroamerican ways of doing national politics. Notions of terrorism invite de-/re-construction in terms of 'organized irresponsibility' and 'organized impunity' (to invoke Ulrich Beck's favourite phrase regime 24 ) of the multifarious agents of contemporary globalization led pre-eminently by the transantional corporations. Although not congenial to current discourse, those traumatized vectors of violated humanity from Bhopal to Ogoniland and beyond construct a structuration of 'mass international terrorism' in ways profoundly different from significations currently under construction. Should they be altogether morally mistaken in this, the new pedagogies of freedom that this 'war' ushers in and symbolizes ought be directed at least to explain to them the ethical error of their ways of thought.

8. CONCEPTIONS OF GLOBAL JUSTICE

The current carnivalistic production of the new, 'network' international law discursivity brings us to a new stage of 'rhetoric and rage' in the production of contemporary international law. 25 It is 'new' at least in the sense that it summons distinctive possibilities of nascent articulations of the possibility of a theory of global justice. Unsurprisingly, contemporary globalization has marginalized this discourse. Insofar as it has attended to it, the result (wholly unintended at least in the case of gentle and good John Rawls) has been the distinction between 'wellordered societies' and its Other, the 'outlaw societies,' with its attendant ethical entailments26 and the severely, and lean and mean, constructed Rawlsian 'duties of assistance' owed by the well-ordered peoples to the 'less' well-ordered ones. 27 This nascent discourse on global justice awaits Foucaldian labours of deconstruction. For example, it is not clear at all whether in the Second Original Position (necessary to construct a theory of justice for inter-state relations or more importantly a Rawlsian Law of Peoples) rational and reasonable contracting parties/peoples may subscribe to the tenets of the current 'war' against 23 24

25

26

27

See his The End of Millennium, pp. 166-205( 1998; Oxford, Blackwell.). Ulrich Beck, The Risk Society (1992; London, Sage.) See also, Upendra Baxi, Mass Torts, Multinational Enterprise Liability, and Private International Law 276 Receuil des Cours 305-423(2000; The Hague, Martinus Nijhoff.). Karin Mickelson, 'Rhetoric and Rage: Third World Voices in International Law,' 16 Wisc. Int'! L.J. 353 ( 1998.). See Note 12 supra at 112-120. See, Charles Jones, Global Justice: Defending Cosmopolitanism ( 1999; Oxford, Oxford University Press); Nomos XLI: Global Justice (1999; New York, New York University Press; Ian Shapiro & Lea Brilmayer eds.).

Operation Enduring Freedom

45

'mass international terrorism.' It is also not abundantly self-evident why conationals (in the current scenario Euroamerican peoples/individual persons) may be said to owe morally altruistic duties of comprehensive assistance to non-nationals. 28 But the 'war' against terrorism is simply inconceivable, even ethically insensible, outside/without an articulation of approaches to global justice that impose, performances/performatives of morally altruistic duties flowing from co-nationals to non-national peoples. This, in turn, invites a whole new difficult discourse concerning 'morals by agreement.' 29 All this summons labours of reflexivity by, at the very least, the South human rights/social movements/communities, not as yet in sight even in a bare outline. This, not the ontological presence of the expanding 'war' against terrorism, constitutes the current global misfortune. Equally urgent, and related, remains the task of revisiting the distinction between misfortune and injustice, memorably enunciated by Judith Shklar. 30 The events of September 11 were not construed as a 'misfortune' but as 'injustice.' Proactive public policy is the response to situations of injustice; in contrast its translation into the languages of misfortune entails reactive public policy response. The range of collective public and social action, and universes of empathy and solidarity, expand and shrink, depending on the way bright lines are drawn between the two. For example, the World Food Summit Declaration and Programme of Action, instituting a right to food security systems, promises concerted global action to halve starvation and malnutrition of 800 million people in the next fifteen years. This discourse does not quite characterize the situation of starving millions across the globe as one of injustice but perceives it as a misfortune to be addressed with 'all deliberate speed.' Much the same may be said of the Istanbul Summit declaration on the human right to shelter and housing. The United Nations Millennium Declaration, in a not dissimilar rhetoric, now proposes to reduce global human immiseration by 2015, measured by ' the proportion of the world's peoples whose income is less than a $1 a day,' those who 'suffer from hunger,' and those 'who are unable to reach, or afford, safe drinking water.' 31 These 'noble' rhetoric of 'progressive realization' languages of the regimes of international economic, social, and cultural rights harbour cognate translations. 28

29

30 31

Of course, a more generous version of 'difference principle' at the level of global justice is possible: see, for example, Charles Beitz, Political Theory and International Relations ( 1979; Princeton, Princeton University Press) and Thomas W. Pogge, Realizing Rawls (1989,lthaca, Cornell University Press.) I have articulated my difficulties with genre of global justice theorizing in my presentation for Documentall (Vienna; March 2001), 'The Failure of Deliberative Democracy and Global Justice,' in press, 2002.). David Gauthier, Morals By Agreement (1986; Oxford, Oxford University Press.) But see, Thomas Donaldson, The Ethics of International Business 155-163 (1989; Oxford, Oxford University Press.). In her Strauss Lecture, Faces of Injustice ( 1990; New Haven, Yale University Press.). See for the full text: http://www.un.org.

46

Upendra Baxi

Bhopal and Ogoni-land represent, in the dominant discourse, situations of misfortune, not injustice. Misfortunes (thus so far narrated) invite glacial pace of global diplomacy; injustice summons the 'war against terrorism.' The issue is not whether the distinction we must draw between injustice and misfortune is unavoidable in a non-ideal world; the issue is one of acts and circumstances of justice of drawing the distinctions, the framing of the grammars of justice entailed in the allocation of critical events on to the one or the other register, the framing of geographies of injustice and misfortune. If there exists at all the possibility of a subaltern voice, it lies in enunciation of Third World perspective on global justice, that helps us adjudge the ethics of the new discursivity of a global war against terrorism, currently named 'Operation Infinite Justice'/'Enduring Freedom.' The vision of a world emancipated from catastrophic practices of politics of cruelty, acts of terror by state as well as non-state actors, indeed, symbolizes a resurgent space for the politics of human hope. The task, however, lies in preventing it from becoming the Christian Twenty First century humankind's early but perenduring worst hazard.

B.S. CHIMNI*

4. Third World Approaches to International Law: A Manifesto

l. INTRODUCTION

The threat of recolonisation is haunting the third world. 1 The process of globalization has had deleterious effect on the welfare of third world peoples. Three billionaires in the North today hold assets more than the combined GNP of all the least developed countries and its 600 million people 2 International law is playing a crucial role in helping legitimize and sustain the unequal structures and processes that manifest themselves in the growing northsouth divide. Indeed, international law is the principal language in which domination is coming to be expressed in the era of globalization. 3 It is displacing national legal systems in their importance and having an unprecedented impact on the lives of ordinary people. Armed with the powers of international financial and trade institutions to enforce a neo-liberal agenda, international law today threatens to reduce the meaning of democracy to electing representatives who, irrespective of their ideological affiliations, are compelled to pursue the same social and economic policies. Even international human rights discourse is *

I would like to thank Antony Anghie for his comments on an earlier draft of the paper. The

usual caveat applies. The word "recolonisation" is being inter alia used to indicate first, the reconstitution of the relationship between State and international law so as to undermine the autonomy of third world States and to the disadvantage of its peoples. Second, the expansion of international property rights which are to be enforced by third world States without possessing the authority to undertake the task of redistribution of incomes and resources. Third, the relocation of sovereign economic powers in international trade and financial institutions. Fourth, the inability of third world states to resist the overwhelming ideological and military dominance of the first world. See UNDP, Human Development Report (1999). We adopt here the definition of domination offered by Thompson: "We can speak of 'domination' when established relations of power are 'systematically asymmetrical', that is, when particular agents or groups of agents are endowed with power in a durable way which excludes, and to some significant degree remains inaccessible to, other agents or groups of agents, irrespective of the basis upon which such exclusion is carried out." See J. Thompson, Ideology and Modern Culture in The Polity Reader in Social Theory (1994) 133 at 136.

47 A. Anghie, B. Chimni, K. Mickelson, 0. Okafor (eds.), The Third World and International Order: Law, Politics and Globalization, 47-73 © 2003 Koninklijke Brill NV. Printed in Great Britain.

48

B.S. Chimni

being manipulated to further and legitimize neo-liberal goals. In brief, the economic and political independence of the third world is being undermined by policies and laws dictated by the first world and the international institutions it controls. Unfortunately, TWAIL (third world approaches to international law) has neither been able to effectively critique neo-liberal international law or project an alternative vision of international law. The ideological domination of Northern academic institutions, the handful of critical third world international law scholars, the problems of doing research in the poor world, and the fragmentation of international legal studies has, among other things, prevented it from either advancing a holistic critique of the regressive role of globalising international law or sketching maps of alternative futures. It is therefore imperative that TWAIL urgently finds ways and means to globalize the sources of critical knowledge and address the material and ethical concerns of third world peoples. 4 This paper seeks to take a small step in that direction. It presents a critique of globalising international law and proposes a set of strategies directed towards creating a world order based on social justice. The aim is to initiate a debate on the subject rather than to make a definitive statement. The paper is divided into five further sections. Section II considers whether it is still meaningful to talk about a "third world". Section III discusses the different ways in which the relationship between State and international law is being reconstituted in the era of globalization to the distinct disadvantage of third world States and peoples. Section IV examines the ideology of globalising international law. Section V looks at the theory and process of resistance to unjust and oppressive international laws. Section VI identifies certain elements of a future TWAIL agenda. Section VII contains brief final remarks.

2. END OF THE THIRD WORLD?

It is very often argued that the category "third world" is anachronistic today and without purchase for addressing the concerns of its peoples. 5 Indeed, from the very inception it is said to have 'obscured specificity in its quest for generalizability'. 6 The end of the cold war (or the demise of the second world) Our political referents "third world" or "third world peoples" is "not there in some primordial, naturalistic sense'" or 'reflect a unitary or homogeneous political object". See H. Bhabha, The Location of Culture, at 26 (1994). There is the class and gender divides, among others, to be reckoned with. See J. Ravenhill, The North-South Balance of Power, 66:4 International Affairs 731 ( 1990). See also M. Berger, The End of the 'Third World', 15:2 Third World Quarterly, 257~275 (1994). See S.N. Macfarlane, Taking Stock: The Third World and the End of the Cold War, in L. Fawcett and Y. Sayigh (Eds.), The Third World Beyond the Cold War: Continuity and Change 15, at 21 (1999).

Third World Approaches to International Law

49

has only strengthened the tendency towards differentiation. 7 According to Walker, the "great dissolutions of 1989" shattered all cold war categories and 'as a label to be affixed to a world in dramatic motion the Third World became increasingly absurd, a tattered remnant of another time .. .' 8 It can hardly be denied that the category "third world" is made up of 'a diverse set of countries, extremely varied in their cultural heritages, with very different historical experiences and marked differences in the patterns of their economies .. .' 9 But too much is often made of numbers, variations, and differences in the presence of structures and processes of global capitalism that continue to bind and unite. It is these structures and processes that produced colonialism and have now spawned neo-colonialism. In other words, once the common history of subjection to colonialism, and/or the continuing underdevelopment and marginalization of countries of Asia, Africa and Latin America is attached sufficient significance, the category "third world" assumes life. In any case, the diversity of the social world has not prevented the consolidation and articulation of international law in universal abstractions. Today, international law prescribes rules that deliberately ignore the phenomena of uneven development in favor of prescribing uniform global standards. It has more or less cast to flames the principal of special and differential treatment. 10 In other words, the process of aggregating in international law a diverse set of countries with differences in the patterns of their economies also validates the category "third world". That is to say, because legal imagination and technology tend to transcend differences in order to impose uniform global legal regimes, the use of the category "third world" is particularly appropriate in the world of international law. It is a necessary and effective response to the abstractions that do violence to difference. Its presence is, to put it differently, crucial to organizing and offering collective resistance to hegemonic policies. Unnecessary importance is often attached to the end of the cold war. The growing north-south divide is sufficient evidence, if any were needed, of the continuing relevance of the category "third world". Its continuing usefulness lies in pointing to certain structural constraints that the world economy imposes on one set of countries as opposed to others. At one point, the arrival of the newly industrializing countries was seen to be a definitive pronouncement on the inadequacy of the category "third world".11 But their fate in the financial crisis of the late nineties reveals that the divide between these countries and the rest is not as sharp as it first appeared. Furthermore, as critics of the Id.

See R.B.J. Walker, Space/Time/Sovereignty, in M.E. Denham and M.O. Lombardi (Eds.),

10

11

Perspectives on Third World Sovereignty: The Postmodern Paradox 13, at 15 (1996). See P. Worsley, The Three Worlds: Culture and World Development 306 (1984). The principle has been replaced in different legal regimes by the idea of transitional periods or its extension to least developed countries. Where special and differential treatment has been granted to all third world countries the obligation has been cast in soft law language. See N. Harris, The End of the Third World: Newly Industrializing Countries and the Decline of an Ideology ( 1987).

50

B.S. Chimni

category "third world" concede, the alternative of multiplying the number of categories to cover distinctive cases, may not be of much help. Worsley himself recognized that 'we can all think of many difficulties, exceptions, omissions, etc. for any system of classifying countries, even if we increase the number of worlds.' 12 Crow has aptly pointed out in this context that 'a typology which has as many types as it has cases is of limited analytical value since it has not made the necessary move beyond acknowledgement of the uniqueness of each individual case to identifying key points of similarity and difference' 13 However, the presence or absence of the third world, it is worth stressing, is not something that is either to be dogmatically affirmed or completely denied. It is not to be viewed as an either/or choice in all contexts. The category "third world" can coexist with a plurality of practices of collective resistance. Thus, regional and other group identities do not necessarily undermine aggregation at the global level. These can coexist with transregional groupings and identities. In the final analysis, the category "third world" reflects a level of unity imagined and constituted in ways which would enable resistance to a range of practices which systematically disadvantage and subordinate an otherwise diverse group of people. This unity can express itself in diverse ways. How the internal unity of the "third world" is to be maintained amidst a plurality of individual concerns and group identities can only be determined through practical dialogue which abandons a damaging a priorism. There is, to put it differently, no substitute for concrete analysis of particular international law regimes and practices to determine the demands, strategy and tactics of the third world. But there is a need to be alert to the politics of critique of the category "third world". To misrepresent and undermine the unity of the Other is a crucial element in any strategy of dominance. From which flows the suggestion that the category "third world" is irrelevant to the era of globalization. It represents the old divide and rule strategy with which third world peoples are exceedingly familiar. Such a policy seeks to prevent a global coalition of subaltern States and peoples from emerging through positing divisions of all kinds. Thereby, the transnational elite seeks to subvert collective modes of reflection on common problems and solutions. r Critique is not the only weapon that hegemonic States deploy against the unity of the third world. Dominant States also take direct measures to weaken the third world coalition. Thus, for example, the North did not take kindly in the past to the Bandung spirit. 14 As Samir Amin writes:

13

See Development" in P.Worsley (Ed.), The New Introducing Sociology 2 (1987). See C. Graham, Comparative Sociological and Social Theory: Beyond the Three Worlds 8

14

In 1955 an Asian African Conference was held in Bandung in Indonesia. "The importance of

12

(1997).

Bandung was that for the first time a group of former colonial territorries [29 States attended] had met together without any of the European powers, and all those taking part ... this was an assertion of their independence" See P. Willets, The Non-Aligned Movement: Origins of a Third World Alliance 3 (1978). Later came the non-aligned movement which had its roots in Bandung.

Third World Approaches to International Law

51

Is it just accidental that a year later, France, Britain, and Israel attempted to overthrow Nasser through the 1956 aggression. The true hatred that the West had for the radical third world leaders of the 1960s, Nasser in Egypt, Sukarno in Indonesia, Nkrumah in Ghana, Modibo Keita in Mali, almost all overthrown at about the same time ( 1965-1968), a period which also saw the Israeli aggression of June 1967, shows that the political vision of Bandung was not accepted by imperialist capital. It was thus a politically weakened non-aligned camp that had to face the global economic crisis after 1970-71. The West's absolute refusal to accept the proposal for a New International Economic Order shows that there was a real logic linking the political dimension and the economic dimension of the Afro-Asian attempt crystallised after Bandung. 15 One could add to the above list names (Lumumba, Che Guevara, Allende) and left movements (Indonesia, Nicaragua, Angola) that have been at the receiving end of Northern subversive strategies. 16 Billions of dollars have been spent to undo regimes and movements not favourable to the dominant States. It has prevented an effective third world coalition from emerging as a counterweight to the unity of the first world. It is left to emphasize that our understanding of the category "third world" diverges sharply from that of its ruling elite. The latter scrupulously overlook the class and gender divides within. Furthermore, in the era of globalization, the ruling elite in the third world is coming to be an integral part of an emerging transnational ruling elite that seeks to establish the global rule of transnational capital on the pretext of pursuing "national interests". The welfare of the peoples of the third world does not have priority in this scheme of things. Thus, there is an obvious dialectic between struggles inside third world countries and in external fora. There can be little progress on one front without some progress in the other. At the same time, a global coalition of the poor countries remains a viable model of collective resistance. For the aspirations of the people, despite the emergence of the non-governmental organizations, is still most effectively represented by the State in international fora. But the third world State has to be compelled through peoples struggles to engage in collective action.

3. STATE AND INTERNATIONAL LAW IN THE ERA OF GLOBALIZATION The State is the principal subject of international law. But the relationship between State and international law continually evolves. Each era sees the 15

16

See A. Samir, The Social Movements in the Periphery: An End to National Liberation, in S. Amin et al. (Eds.), Transforming the Revolution: Social Movements and the World-System 96, at ( 1990). See P. James and V. Steve, The Decline of Revolutionary Politics: Capitalist Detour and the Return of Socialism, 24 Journal of Contemporary Asia 1, at 1 (1994).

52

B.S. Chimni

material and ideological reconstitution of the relationship between state sovereignty and international law. The changes are primarily driven by dominant social forces and States of the time. The era of globalisation is no exception to this rule. Globalisation is not an autonomous phenomenon. It is greatly facilitated by the actions of States, in particular dominant States. 17 The adoption of appropriate legal regimes plays a critical role in this process. 18 The on going restructuring of the international legal system is not entirely dissimilar to the one that saw capitalism establish and consolidate itself in the national sphere. In that case the State 'shaped itself around pre-existing political structures, inserting itself among them, forcing upon them whenever it could, its authority, its currency, its taxation, justice and language of command. This was a process of both infiltration and superimposition, of conquest and accommodation'. 19 In this case what is at stake is the creation of a unified global economic space with appropriate international law and international institutions to go along. Towards this end, international law is coming to define the meaning of a "democratic State" and relocating sovereign economic powers in international institutions, greatly limiting the possibilities of third world States to pursue independent self-reliant development. These developments seek to accommodate the interests of a transnational ruling elite which has come to have unprecedented influence in shaping global policies and law. Mapping the changes which are visiting the relationship between State and international law and grasping the consequences of the metamorphosis is the most crucial task before third world international law scholars. For the transformed relationship between State sovereignty and international law may have far reaching consequences for the peoples of the third world. Attention may be drawn in this regard to some of the major overlapping developments that are redefining and reconstituting the relationship of State and international law and institutions, albeit with differential impact on third world States and peoples. First, international law is now in the process of creating and defining the "democratic State." 20 It has led to the internal structure of States coming under the scrutiny of international law. An emerging international law norm requires States to hold periodic and genuine elections. However, it pays scant attention to the fact that formal democracy excludes large, in particular marginal groups, from decision making power. 21 The task of "low intensity" democracies, from all evidence, is to create the conditions in which transnational capital can 17

18 19 20

21

See B. Jones The World Upside Down? Globalisation and the Future of the State 4 (2000), Carnoy, Martin and Castells, Manuel, Globalisation. the Knowledge Society, and the Network State: Poulantzas at the Millennium, 1 Global Networks 1, at 5 (2001 ). Id., at 63. See F. Braudel, Civilization and Capitalism 15th-18th Century, Vol. II, 513 (1979). See T. Franck, The Emerging Right to Democratic Governance, 86 American Journal of International Law 46, at 46 ( 1992). See J. Crawford and M. Marks, The Global Democracy Deficit: an Essay in International Law and its Limits", in D. Archibugi et al. (Eds.) Re-imagining Political Community: Studies in Cosmopolitan Democracy 72-90, at 80 (1998).

Third World Approaches to International Law

53

flourish. To facilitate this, the State (read the third world State) has seceded, through "voluntary" undertaken obligations, national sovereign economic space (pertaining to the fields of investment, trade, technology, currency, environment etc) to international institutions that enforce the relevant rules. 22 But despite the relocation of sovereign powers in international institutions, international law does not take global democracy seriously. Global or transnational systems of representation and accountability are yet to be established. In brief, international law today operates 'with a set of ideas about democracy that offers little support for efforts either to deepen democracy within nation-states or to extend democracy to transnational and global decision-making'. 23 Second, international law now aspires to directly regulate property rights. A key feature of the new age is the internationalization of property rights. By "internationalization of property rights" is meant their specification, articulation and enforcement through international law or the fact that the change in the form and substance of property rights is brought about through the intervention of international law. There are a series of overlapping legal developments/measures through which international property rights are being entrenched: (a) the international specification and regulation of intellectual property rights; indeed, as one observer notes, 'TRIPS [i.e., Agreement on Trade-Related Aspects of Intellectual Property Rights] marks the beginning of the global property epoch'; 24 (b) the privatization of State owned property through the medium of international financial institutions and international monetary law; (c) the adoption of a network of international laws that lift constraints on the mobility and operation of the transnational corporate sector; 25 ( d) the definition of sustainable development in a manner which implies 22

23

24

25

With respect to the WTO two points need to be made as regards the "voluntary" nature of the obligations undertaken under the Final Act of the Uruguay Round of Trade Negotiations. First, the negotiations leading to the adoption of the agreements constituting the Final Act lacked transparency and the practice of green room consultations left a large number of third world countries effectively out of the negotiations. Second, the entire set of agreements were offered as a single undertaking. Therefore, States could not choose the agreements it wished to accept. This was justified on the ground that the Final Act represented a package deal that would unravel if the pick and choose policy were permitted. However, it is now clear that the third world countries gained little from the Uruguay Round agreements undermining the legitimacy of the single undertaking practice. It explains the launch of the Doha round of trade negotiations as a development round. So far as the system of conditionalities recommended by international financial institutions is concerned their acceptance is voluntary in the most tenuous sense. For the fact of the matter is that third world countries have little choice but to abide by them. Id., at 85. That is, until their absence manifests itself in internal or international wars, and the gross violation of human rights which accompany them, when international law is brought back in to reconstruct formal democracy. See J. Braithwaite and P. Drahos, Global Business Regulation Cambridge: Cambridge 63 (2000). For the text of the Agreement on TRIPS, see WTO The Results of the Final Act of the Uruguay Round of Multilateral Trade Negotiations Geneva 365 (1994). A whole host of international laws seek to free transnational capital of spatial and temporal constraints. This has been achieved, or is in the process of being achieved, first, through hundreds of bilateral investment protection treaties between the industrialized and third world

54

B.S. Chimni

the redistribution of property rights between the first and the third worlds, 26 and also, subject to some conditions, the regulation of process and production methods; 27 and (e) the metamorphosis of the area of common heritage of humankind (be it the domain of knowledge, environment or specific geographical spaces such as the seabed) into a system of corporate property rights. 28 Third, at the level of circulation of commodities, international law defines the conditions in which international exchange is to take place. It is a truism that 'markets cannot exist without norms or rules of some sort, and the ordering of market transactions takes place through layers of rules, formal and informal'. 29 In this regard, international law inter alia lays down rules with regard to the sales of goods, market access, government procurement, subsidies and

26

27

28

29

countries. By 1999, 1857 BITS were concluded (up from 165 at the end of the seventies and 385 at the end of eighties), a predominant number of which were concluded between the industrialized world and the third world countries, see UNCTAD, Bilateral Investment Treaties 1959 to 1999 1 (2000). Second, the Agreement on Trade Related Investment Measures took a number of measures in this direction viz. local content and balancing requirements cannot be imposed on foreign capital. For the text of the agreement see WTO, The Results of the Final Act of the Uruguay Round of Multilateral Trade Negotiations (1994). Third, there are soft law texts such as the World Bank Guidelines on Foreign Investment (1992), which recommend that constraints on the entry and operation of transnational capital be limited. (For text see UNCTAD, International Investment Instruments: A Compendium vol. I - Multilateral Instruments 247 ( 1996). Fourth, there is the proposed negotiation of a multilateral agreement on investment on the agenda of Doha round of trade negotiations. See WTO, WT/MIN (01)/DEC/W/1, 14 November 2001 - Ministerial Conference, Fourth Session, Doha, 9-14 November 2001: Ministerial Declaration. Fifth, a Multilateral Investment Guarantee Agency (MIGA) has been established under the auspices of the World Bank to insure foreign capital against non commercial risks. (For the text of the agreement establishing MIGA see UNCTAD, (1996), at 213). Sixth, there is the September 1997 statement of the IMF Interim Committee endorsing a move towards capital account convertibility despite all evidence showing the grave consequences for the economies embracing it. This is in contrast with original obligations contained in the 1944 Articles of Agreement which called for the "avoidance of restrictions on payments for current transactions" see J. Bhagwati, The Capital Myth, Foreign Affairs 7 (May/June 1998). Finally, mention needs to be made of the fact that the Draft Code of Conduct on Transnational Corporations which imposed certain duties - respect for host country goals, transparency, respect for environment etc. - has been abandoned (for the text see UNCTAD, (1996), above at 161. And the UN Centre for Transnational Corporations which was bringing some transparency to the functioning of TNCs was shut down in 1993. For 'as industrial countries developed, global private rights were granted to polluters; now, developing countries are asked to agree to a redistribution of those property rights without compensation for already depleted resources', see P. Uimonen and J. Whalley, Environmental Issues in the New Trading System 66 ( 1997). See Uimonen and Whalley, id. See also B.S. Chimni, WTO and Environment: The Shrimp-Turtle and EC-Hormone Cases, Economic and Political Weekly 1752-1762 (May 13, 2000), WTO and Environment: Legitimization of Unilateral Trade Sanctions, Economic and Political Weekly 133-140 (January 12-18, 2002). See G. Teeple, Globalization as the Triumph of Capitalism: Private property, Economic Justice and the New World Order, in T. Schrecker (Ed.), Surviving Globalism: The Social and Environmental Challenges 15-38, at 15 ( 1997). See D. Campbell and S. Picciotto, Exploring the Interaction Between Law and Economics: the Limits of Formalism, 18 Legal Studies 249-278, at 265 (1998).

Third World Approaches to International Law

55

dumping. Many of these rules are designed to protect the corporate actor in the first world from efficient production abroad even as third world markets are being pried open for its benefit. Thus, the rules of market access are now sought to be linked to the regulation of process and production methods in order to allow first world States to construct non tariff barriers against commodities exported from the third world. 30 Likewise, the rules on anti-dumping are designed to protect inefficient corporations in the developed home State. 31 On the other hand, some forms of market intervention are frowned upon. Thus, international commodity agreements which seek to stabilise the incomes of third world countries from primary commodity exports are actively discouraged. 32 Fourth, international law increasingly requires the 'deterritorialization of currencies' subjecting the idea of a "national currency" to growing pressure. The advantages of monetary sovereignty are known. It is, among other things, 'a possible instrument to manage macroeconomic performance of the economy; and [ ... ] a practical means to insulate the nation from foreign influence or constraint'. 33 The first world is today using international financial institutions, and the ongoing negotiations relating to the General Agreement on Trade in Services (GATS), to compel third world States to accept monetary arrangements, such as capital account convertibility, which are not necessarily in their interests. 34 Thus, it will not be long before capital account convertibility becomes the norm, despite its negative consequences for third world economies. 35 The loss of monetary sovereignty, as the East Asian crisis showed, has serious fallouts for the ordinary people of the third world. Their standards of living can substantially erode overnight. Fifth, the internationalisation of property rights has been accompanied by the internationalisation of the discourse of human rights. Human rights talk has come to have a pervasive presence in international relations and law. This development has been variously expressed: 'a new ideal has triumphed on the 30 31

32

33

34

35

See B.S. Chimni, (2000) and (2002), supra note 27. See B.M. Hoekman and M. Kostecki, The Political Economy of the World Trading System: from GATT to WTO 174 (1995). See B.S. Chimni, International Commodity Agreements: A Legal Study (1987), Marxism and International Law: A Contemporary Analysis, Economic and Political Weekly 337-349, at 341 (February 6, 1999). See B. Cohen, Money in a Globalized World" in N. Woods (Ed.), The Political Economy of Globalization 77, at 84 (2000). See C. Raghavan, GATS may result in Irreversible Capital Account Liberalization (2002), online < http://www.twnside.org.sg/>: that monetary relations can be used coercively like all other economic instruments should come as no surprise. According to Kirshner,: "monetary power is remarkably efficient component of state power ... the most potent instrument of economic coercion available to states in a position to exercise it" (cited by Cohen, supra note 33, at 87). It is the coercive element that concerns third world states and distinguishes their situation from the relinquishment of monetary sovereignty by States of the European Union (EU). For the text of GATS see WTO 1994: 325. See Bagwati, supra note 25, at 7-12.

56

B.S. Chimni

world stage: human rights'; 36 'human rights discourse has become globalized'; 37 'human rights could be seen as one of the most globalized political values of our time'. 38 The fact that the omnipresence of the discourse of human rights in international law has coincided with increasing pressure on third world States to implement neo-liberal policies is no accident; the right to private property, and all that goes along with it, is central to the discourse of human rights. 39 While the language of human rights can be effectively deployed to denounce and struggle against the predator and the national security state, its promise of emancipation is constrained by the very factor that facilitates its pervasive presence viz., the internationalisation of property rights. This contradiction is in turn the ground on which intrusive intervention into third world sovereign spaces is justified. For the implementation of neo-liberal policies is at least one significant cause of growing internal conflicts in the third world. 40 Sixth, labor market deregulation prescribed by international financial institutions and international monetary law has caused the deterioration of the living conditions of third world labor. Deregulation policies are an integral part of structural adjustment programs. They are based 'on the belief that excessive government intervention in labor markets - through such measures as public sector wage and employment policies, minimum wage fixing, employment security rules - is a serious impediment to adjustment and should therefore be removed or relaxed'. 41 The growing competition between third world countries to bring in foreign investment has further led to easing of labor standards and a "race to the bottom." 42 In the year 2000, nearly 93 developing countries had export processing zones (EPZs), compared with 24 in 1976. 43 Women provide up to 80 per cent of labor requirements in EPZs and are the subject of economic and sexual exploitation. 44 The United Nations Secretary-General himself has pointed to 'adverse labor conditions as a major factor contributing to the 36

37

38

39

40

41 42

43 44

See C. Douzinas, The End of Human Rights: Critical Legal Thought At the Turn of the Century 1 (2000). See G. Teubner, The King's Many Bodies: The Self-Destruction of Law's Hierarchy, 31 Law and Society Review 763, at 770 (1997). See R.A. Wilson, Introduction in R.A. Wilson (Ed.), Human Rights, Culture and Context: Anthropological Perspectives 1 ( 1997). See B.S. Chimni, International Law and World Order: A Critique of Contemporary Approaches 291 (1993). See A. Orford, Locating the International: Military and Monetary Interventions after the Cold War, 38 Harvard International Law Journal 443-485 (1997). See also OAU Report of the International Panel of Eminent Personalities asked to Investigate the 1994 Genocide in Rwanda and the Surrounding Events (2000), online: . L.L. Lim, More and Better Jobs for Women: An Action Guide, Geneva: ILO 19-20. See J. Oloka-Onyango and D. Udigama, The Realization of Economic, Social and Cultural Rights: Globalization and its Impact on the Full Enjoyment of Human Rights Rights, E/CN.4/Sub.2/2000/13, 15 June 2000, Sub-Commission on the Promotion and Protection of Human Rights, Fifty-Second session, para 34. Id., para 35. Id., para 35.

Third World Approaches to International Law

57

increased feminization of poverty.' 45 The position of migrant labor in the first world is not very different from that of working classes in deregulated labor markets of the third world. There are increasing restrictions on their rights within European Union and the United States. 46 Seventh, the concept of jurisdiction is being rendered more complex than ever in the past. Among other things, digital capitalism threatens to make 'a hash of geopolitical boundaries' and reduce the ability of third world States to regulate transnational commerce. 47 There is, in the era of globalization, an intersection of jurisdictions which gives rise to multiple (or concurrent) and extra-territorial jurisdiction to a far greater extent than before. Where international law does not penetrate national spaces, powerful states put into effect Jaws that have an extraterritorial effect; third world States have little control over processes initiated without its consent in distant spaces. 48 There is, therefore, a legitimate fear among third world States of 'a tyranny of sameness' or the 'extension transnationally of the logic of Western governmentality' 49 The fear is accentuated by the fact that international Jaws are being increasingly understood in ways that redefine the concept of jurisdiction. Thus, for example, international human rights Jaw is being interpreted to delimit sovereign jurisdiction in diverse manner, as is reflected in developments ranging from the Pinochet case to armed humanitarian interventions. 50 While these developments have a progressive dimension they can easily be abused to threaten third world leaders and peoples unless they are willing to accept the dictates of the first world. Eighth, there has been a proliferation of international tribunals that subordinate the role of national legal systems in resolving disputes. These range from international criminal courts to international commercial arbitration to the WTO dispute settlement system (DSS). It is not the greater internationalisation of interpretation and enforcement of rules that is problematic but its differential meaning for, and impact on, third world States and peoples. The neglect of the views and legal systems of societies visited by internal conflict in the setting up of ad hoc international criminal tribunals, even as the United States refuses to ratify the Rome Statute, is an instance of such practices. 51 Take also the differential impact of the WTO DSS. It was accepted in the belief that a rule oriented and compulsory DSS would protect the interests of third world 45 46

47 48 49 50

51

Id., para 39.

Id., para 28. See D. Schiller, Digital Capitalism: Networking the Global Market System 72 (1999). See M. Shaw, International Law, 3 ed. ( 1997) and B. Chimni, (2002), supra note 27. See J. Weiner, Globalisation and the Harmonisation of Law 195 and 188 ( 1999). See B.S. Chimni, The International Law of Humanitarian 103 Intervention, in State Sovereignty in the 21st Century 103-132 (2001, New Delhi: Institute for Defense Studies and Analyses). See B. Rajagopal, The Pragmatics of Prosecuting the Khmer Rouge, Yearbook of International Humanitarian Law, Vol. 1, 189-204 (1998) and From Resistance to Renewal: The Third World, Social Movements, and the Expansion of International Institutions, 41 Harvard International Law Journal 531-578 (2000).

58

B.S. Chimni

countries. This expectation has been belied because, among other things, the substantive rules themselves are biased in favour of the first world, and have therefore not yielded the expected gains in terms of market access. 52 Second, the third world countries lack the expertise and the financial resources to make effective use of the DSS. Third, the WTO Appellate Body has interpreted the texts in a manner as to upset the balance of rights and obligations agreed to by third world States. For example, the subject of trade-environment interface has received an interpretation that was never envisaged by third world States. With the result that their exports are threatened by unilateral trade measures taken by first world States. 53 Ninth, the State is no longer the exclusive participant in the international legal process even though it remains the principal actor in law making. The globalisation process is breaking the historical unity of law and State and creating 'a multitude of decentered law-making processes in various sectors of civil society, independently of nation-states'. 54 While this is not entirely an unwelcome development, the "paradigmatic case" of 'global law without the state' is lex mercatoria, revealing that the transnational corporate actor is the principal moving force in decentralised law making. 55 The practices of lex mercatoria include standard form contracts, customs of trade, voluntary codes of conduct, private institutions formulating legal rules for adoption, intra firm contracts and the like. 56 Some of these practices do not raise concerns for third world countries. Others however deserve our attention for several reasons. First, there is the lack of a "public" voice in the emergence of corporate law without a State. Second, corporations take advantage of their "inner legality" to avoid tax and other liabilities. Thus, for example, intra-firm transactions are used to avoid paying taxes and respecting foreign exchange laws of many a third world country. Third, the internal legal order may be used to, among other things, present a picture of law and human rights observance when the contrary is true. Such is, for example, the case with voluntary codes of conducts that are adopted by transnational corporations. 57 52

53

54 55 56

57

See UN A/CONF. 198/3, 1 March 2002: Monterrey Consensus on Financing for Development, paras 26-38 UNGA (2001) A/CONF.191/12, 2 July 200: Brussels Declaration on Least Developed Countries para 6. See B.S. Chimni, supra note 27. On problems relating to international commercial arbitration see M. Sornarajah, The Climate of International Arbitration, 8:2 Journal of International Arbitration 47-86, at 79 (1991) and Power and Justice in Foreign Investment Arbitration, 14 Journal of International Arbitration 103-140, at 103 (1997). See Teunber supra note 37, at xiii. Id., at 3 and 8. In response to criticism that lex mercatoria is still dependent on the sanctions of national courts, Teubner writes that 'it is the phenomenological world construction within a discourse that determine the globality of the discourse, and not the fact that the source of use of force is local'. See Teubner, supra note 37, at 13. Global laws without the State are, more generally, 'sites of conflict and contestation, involving the renegotiation and redefinition of the boundaries between, and indeed the nature and forms, of the state, the market, and the firm'. See S. Picciotto and J. Haines, Regulating Global Financial Markets, 26:3 Journal of Law and Society 351-368, at 360 ( 1999). Thus, for example the work

Third World Approaches to International Law

59

Tenth, there is the refusal to affirmatively differentiate between States at different stages of the development process. International law today articulates rules that seek to transcend the phenomena of uneven global development and evolve uniform global standards to facilitate the mobility and operation of transnational capital. There is no longer space for recognizing the concerns of States and peoples subjected to long colonial rule. Poor and rich states are to be treated alike in the new century and the principle of special and differential treatment is to be slowly but surely discarded. Equality rather than difference is the prescribed norm. The prescription of uniform global standards in areas like intellectual property rights has meant that the third world State has lost the authority to devise technology and health policies suited to its existential conditions. But since capital now resides everywhere, it abhors difference, and globalised international plays along. 58 Eleventh, the relationship between the State and the United Nations is being reconstituted. There is the trend to turn to the transnational corporate actor for financing the organization. The corporate actor also has come to play a greater role within different UN bodies. 59 Its growing influence and linkages is being used by the corporate actor to legitimize its less than wholesome activities. As Onyango and Udigama warn, 'a danger exists of such linkages being exploited by the latter, while only paying lip-service to the ideals and principles for which the United Nations was created and to which it continues to be devoted. Moreover, because the actors who are being linked up with have considerably more financial and political clout, there is a danger that the United Nations will come out the loser'. 60 What may be called the privatization of the United Nations system reduces, among other things, the possibility of the organization being at the center of collective action by third world countries. In sum, the meaning of the reconstitution of the relationship between State and international law is the creation offertile conditions for the global operation of capital and the promotion, extension and protection of internationalised

58

59

60

of the Basie Committee has been crucial in regulating the liquidity and solvency of banks in individual jurisdictions in the United States and the European Union; see J. Wiener, Globalisation and the Harmonisation of Law, Chapter 3 (1999). The work of the Committee led to legislation (the Foreign Bank Supervision Enhancement Act of 1991) being enacted by the US to incorporate the guidelines suggested by it and which may lead to the exclusion of third world banks from operating there. The meaning of the Doha Declaration on the TRIPS Agreement and Public Health adopted on 14 November, 2001 is far from clear. See WTO, WT/MIN (01)/DEC/W/2, 14 November 2001 - Ministerial Conference, Fourth Session, Doha, 9-14 November 2001: Declaration on the TRIPS Agreement and Public Health (2001). Albeit, there is clear recognition that the TRIPS Agreement ignores its impact on public health. See B.S. Chimni, Marxism and International Law: A Contemporary Analysis", Economic and Political Weekly 337-349 (February 6, 1999). See J. Oloka-Onyango and D. Udigama, The Realization of Economic, Social and Cultural Rights: Globalization and its Impact on the Full Enjoyment of Human Rights Rights E/CN.4/Sub.2/2000/13, 15 June 2000, Sub-Commission on the Promotion and Protection of Human Rights, Fifty-Second session (1999).

60

B.S. Chimni

property rights. There has emerged a transnational ruling elite, with the ruling elite of the third world playing a junior role, which guides this process. It is seeking to create a global system of governance suited to the needs of transnational capital but to the disadvantage of third world peoples. The entire ongoing process of redefinition of State sovereignty is being justified through the ideological apparatuses of Northern States and international institutions it controls. Even the language of human rights has been mobilised towards this end. If this trend has to be reversed in terms of equity and justice, the battle for the minds of the third world decision-makers and peoples has to be won. In brief, the changing constellation of power, knowledge and international law needs to be urgently grasped if the third world peoples have to resist recolonisation. 4. IDEOLOGY, FORCE, AND INTERNATIONAL LAW

There is the old idea, which has withstood the passage of time, that dominant social forces in society maintain their domination not through the use of force but through having their worldview accepted as natural by those over whom domination is exercised. Force is only used when absolutely necessary, either to subdue a challenge or to demoralize those social forces aspiring to question the "natural" order of things. The language of law has always played, in this scheme of things, a significant role in legitimizing dominant ideas for its discourse tends to be associated with rationality, neutrality, objectivity and justice. International law is no exception to this rule. It legitimizes and translates a certain set of dominant ideas into rules and thus places meaning in the service of power. International law, in other words, represents a culture that constitutes the matrix in which global problems are approached, analyzed and resolved. This culture is shaped and framed by the dominant ideas of the time. Today, these ideas include a particular understanding of the idea of"global governance" and accompanying conceptions of state, development (or non-development) and rights. The process through which the culture of international law is shaped is a multifarious one. Academic institutions of the North, with their prestige and power, play a key role in it. These institutions, in association with State agencies, greatly influence the global agenda of research. 61 Third world students of international law tend to take their cue from books and journals published in the North. From reading these they make up their minds as to what is worth doing and what is not? Who are good scholars and who are bad, or, which is 61

Thus, it is well pointed out, "the ideas about international law popular at a given moment in some countries are more influential than those popular in others simply because some countries are more powerful; money, access to institutional resources, relationships to underlying patterns of hegemony, and influence-is central to the chance that a given idea will become influential or dominant within the international law profession." See D. Kennedy, What is New Thinking in International Law?, ASIL Proceedings of the 94th Annual Meeting, 104-125, at 121 (April 5-6, 2000).

Third World Approaches to International Law

61

the same, what are the standards by which scholarship is to be assessed? It is therefore important that third world international lawyers refuse to unquestioningly reproduce scholarship that is suspect from the standpoint of the interests of third world peoples. Progressive scholars in particular need to be careful. For, 'cultural imperialism (American or otherwise) never imposes itself better than when it is served by progressive intellectuals (or by 'intellectuals of color' in the case of racial inequality) who would appear to be above suspicion of promoting the hegemonic interests of a country [and one may add system] against which they wield the weapons of social criticism'. 62 International institutions also play an important role in sustaining a particular culture of international law. These institutions 'ideologically legitimate the norms of the world order', co-opt the elite from peripheral countries, and absorb counter-hegemonic ideas. 63 International institutions also actively frame issues for collective debate in manner which brings the normative framework into alignment with the interests of dominant States. This is also done through the exercise of authority to evaluate the policies of member States. 64 The knowledge production and dissemination functions of international institutions are, in other words, steered by the dominant coalition of social forces and States to legitimize their vision of world order. Only an oppositional coalition can evolve counter-discourses which deconstruct and challenge the hegemonic vision. The alternative vision needs to respond to the individual elements that constitute hegemonic discourse. 4.1. The Idea of Good Governance

Today, globalising international law, overlooking its history, and abandoning the principle of differential treatment, legitimizes itself through the language of blame. The North seeks to occupy the moral high ground through representing the third world peoples, in particular African peoples, as incapable of governing themselves and thereby hoping to rehabilitate the idea of imperialism. 65 The inability to govern is projected as the root cause of frequent internal conflicts and the accompanying violation of human rights necessitating humanitarian assistance and intervention by the North. It is therefore worth reminding ourselves that colonialism was justified on the basis of humanitarian arguments (the civilizing mission). It is no different today. 66 The contemporary discourse 62

63

64

65

66

See P. Bourdieu and L. Wacquant, On the Cunning of Imperial Reason, 16 Theory, Culture & Society 41-58, at 51 (1999). See R.W. Cox, Gramsci, Hegemony and International Relations: An Essay in Method", in S. Gill (Ed.), Gramsci, Historical Materialism and International Relations 49-66 (1993). See B.S. Chimni, Marxism and International Law: A Contemporary Analysis, Economic and Political Weekly 337-349 (February 6, 1999). See F. Furedi, The Moral Condemnation of the South", in C. Thomas and P. Wilkins (Eds.), Globalization and the South 76-89, at 79 (1997). See A. Anghie, Universality and the Concept of Governance in International Law, in E.K.Quashigah and O.C.Okafor (Eds.), Legitimate Governance in Africa 21-40, at 25 (1999) and J. Gathii, Good Governance as a Counter-Insurgency Agenda to Oppositional and

62

B.S. Chimni

on humanitarianism not only seeks to retrospectively justify colonialism but also to legitimize increasing intrusiveness of the present era. 67 Indeed, as we have observed elsewhere, 'humanitarianism is the ideology of hegemonic states in the era of globalization marked by the end of the Cold War and a growing North-South divide.' 68 Overlooked in the process is the role played by international economic and political structures and institutions in perpetuating the dependency of third world peoples and in generating conflict within them. 4.2. Human Rights as Panacea

The idea of humanitarianism is framed by the discourse of human rights. Its globalization is a function of the belief that the realm of rights, albeit a particular vision of rights, offer a cure for nearly all ills which afflict third world countries and explains the recommendation of the mantra of human rights to post-conflict societies. 69 Few would deny that the globalization of human rights does offer an important basis for advancing the cause of the poor and the marginal in third world countries. Even the focus on civil and political rights is helpful in the struggle against the harmful policies of the State and international institutions. There is a certain dialectic between civil and political rights and democratic practice that can be denied at our own peril. But it is equally true that the focus allows the pursuit of the neo-liberal agenda by privileging private rights over social and economic rights. Thus, for example, the preamble to the TRIPs text baldly states that 'intellectual property rights are private rights'. It does not, on the other hand, talk of the right to health of individuals or peoples;70 indeed, the Doha declaration on the TRIPs agreement and public health had to be insisted upon for this very reason. 71 The argument here is not rooted in 'an excessively narrow, proprietary conception of rights', 72 but rather on the continuos failure to realize welfare rights. It is this failure that gives rise to the belief that the language of civil and political rights mystifies power relations and entrenches private rights. This belief is strengthened by the fact that official international human rights discourse eschews any discussion of the accountability of international institutions such as the IMF/World Bank combine or the WTO which promote policies with

67 68 69

70

71

72

Transformative Social Projects in International Law, 5 Buffalo Human Rights Law Review 107-177, at 107 ( 1999). Id., at 78. See B.S. Chimni (2000), supra note 27, at 244. See B. Chimni, Post-conflict Peace Building and the Repatriation and Return of Refugees: Concepts, Practices and Institutions (forthcoming in 2002). Even when the question of health is mentioned, as in article 8 of the TRIPs text, it is subject to the rights of the patent holders. For the text of the declaration see WTO, WT/MIN (01)/DEC/W/2, 14 November 2001 Ministerial Conference, Fourth Session, Doha, 9-14 November 2001: Declaration on the TRIPS Agreement and Public Health. (2001). See K. Baynes, Rights as Critique and the Critique of Rights: Karl Marx, Wendy Brown, and the Social Function of Rights, 28 Political Theory 451-468 (2000).

Third World Approaches to International Law

63

grave implications for both the civil and political rights as well as the social and economic rights of the poor. Finally, there are the wages of taking civil and political rights too seriously. There is 'the violence that underpins the desire of rights', of realizing rights at any cost. 73 Wars and interventions are unleashed in its name. 4.3. Salvation Through Internationalisation of Property Rights

In recent years, a particular form of State (the neo-liberal State) has come to be touted as its only sensible and rational form. It has been the ground for justifying the erosion of sovereignty though relocating it in international institutions. What this has permitted is the privatization and internationalization of collective national property. In order to understand the on going process, the State needs to be understood in two different ways. First, 'states are clearly institutions of territorial property'. 74 As Hont explains, 'holding territory is a question of property rights, and states, including 'nation-states', are owners of collective property in land ... ' 75 It explains why third world diplomacy has, through various resolutions relating to "natural resources'', emphasized 'the function of sovereignty as a demarcation of property rights within international society'. 76 This has begun to change under the ideological onslaught which declares that the internationalization of property rights is the surest way to bring welfare to third world peoples. The idea of sustainable development has also been deployed towards this end. Second, the State is to be understood 'as a social form, a form of social relations'. 77 It allows the debunking of the concept of "national interest" and the insight that the third world ruling elite is actively collaborating with its first world counterparts in entrenching the process of privatization and internationalization of property rights in its own interest. This process is legitimised through the ideological discrediting of all other forms of State. Such thinking needs to be contested in a bid to safeguard the wealth of third world peoples. The permanent sovereignty over "natural resources" must vest in the people.

73

74

75

76

77

See C. Douzinas, The End of Human Rights: Critical Legal Thought At the Turn of the Century 315 (2000). See I. Hont, The Permanent Crisis of a Divided Mankind: 'Contemporary Crisis of the Nation State' in Historical Perspective, in J. Dunn (Ed.), Contemporary Crisis of the Nation State? 166-231 (1995). Id., at 173. See D.L. Blaney and N. Inayatullah, The Third World and a Problem with Borders in Mark. E. Denham and Mark Owen Lombardi (Eds.), Perspectives on Third World Sovereignty: The Postmodern Paradox 83-102, at 91 (1996), and N. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (1997). J. Holloway, Global Capital and the National State, in Werner Bonefeld and J. Holloway, (Eds.), Global Capital, National State and the Politics of Money 116-141 (1995) and R. Palan, J. Abbott, and P. Deans, State Strategies in the Global Political Economy 43 (1999).

64

B.S. Chimni 4.4. The Idea of Non-development

In recent years it has been argued that "development" itself is the trojan horse and that the ideology it embodies is responsible for third world peoples and States being willingly drawn into the imperial embrace. 78 It is suggested that the post-colonial imaginary has been colonised allowing the major organising principle of Western culture, that is 'the idea of infinite development as possibility, value and cultural goal' to be implanted in the poor world. 79 If only the third world countries were to choose non-development (of whatever local variety), its people would be spared much of the misery that they have suffered in the post-colonial era. The general idea here is to displace the aspirations of third world peoples and scale down development to more tolerable levels. This would help avoid the burden of sustainable development from falling on the North and help sustain its high consumption patterns. To be sure, the post colonial era has witnessed the massive violation of human rights of ordinary peoples in the name of development. But it is particular kind of development policies that are responsible for these violations and not development per se. It is development through structural adjustment programs or neo-liberal policies that need to be indicted, rather than the aspirations of the people to be able to exercise greater choices and a higher standard of life. The uncritical celebration of all that is non-modern is merely a way of obstructing the development of third world countries. Such celebration also risks romanticising oppressive traditional structures in the third world. It is somehow to be the fate of the poor, the marginal, and the indigenous or tribal peoples to preserve traditional values from destruction, while the elite enjoys the fruits of development, often in the first world. What is perhaps called for is a critical approach that recognises the discontents spawned by modernity without overlooking its attractions over pre-capitalist societies. 80 4.5. The Use of Force

Powerful States, it is being argued, exercise dominance in the international system through the world of ideas and not through the use of force. But from time to time force is used both to manifest their overwhelming military superiority and to quell the possibility of any challenge being mounted to their vision of world order. On such occasions, dominant States do not appear to be constrained by international law norms, be it with regard to the use of force or the minimum respect for international humanitarian laws. The US intervention in Nicaragua and the Gulf War and the NATO intervention in Kosovo are just a few examples of this truth. Thus, peace in the contemporary world is in many ways the function of dominance. 78

79

80

See A. Escobar, Anthropology and Development", 154 International Social Science Journal 497-515, at 497 (1997). See J. Tomlinson, Cultural Imperialism: A Critical Introduction 156 and 163 (1991). Id., at 144.

Third World Approaches to International Law

65

5. THE STORY OF RESISTANCE AND INTERNATIONAL LAW

The critique of dominant ideology is necessary if the interests of third world peoples is to be safeguarded. But it has to go hand in hand with a theory of resistance. The critique has to be integrally linked to the struggles of people against unjust and oppressive international laws. Among other things, it has to be recorded and brought to bear upon the international legal process. A proposed theory of resistance has to avoid the pitfalls of liberal optimism on the one hand, and left wing pessimism on the other. The first view believes that the world is progressively moving towards a just world order. It believes that more law and institutions are steps in this direction, in particular imaginative ways of securing enforcement of agreed norms and principles. The second view completely rejects this narrative of progress. It only sees 'the endlessly repeated play of dominations'. 81 In this view 'humanity installs each of its violences in a system of rules and thus proceeds from domination to domination' .82 This understanding is tied to radical rule scepticism: 'Rules are empty in themselves, violent and unfinalized; they are impersonal and can be bent to any purpose'. 83 This pessimistic understanding is (couched in the vocabulary of political realism) also shared by the 'back to the future' themes that have emerged in the post cold war era. 84 There is room here for a third view that hopes to occupy the vast intermediate space between liberal optimism and left wing pessimism. This view does not subscribe either to the facile view that humankind is inevitably and inexorably moving towards a just world order or the idea that resistance to domination is an empty historical act. A key issue from the perspective of a theory of resistance is the question of agency. More specifically, it is about the role of old social movements (OSMs) in ushering in a just world order. Increasingly today, the story of resistance is coming to be identified with new social movements (NSMs) in the third world. 85 The NSMs arrived on the scene in the North in the 1970s with a focus on individual issue areas: women's movement, ecology movements, peace movement, gay and lesbian movements etc. 86 They began to make their presence felt in the South a decade later. The collapse of 'actually existing socialism' and the subsequent marginalization of class based movements led to a marked presence of NSMs. The rapid growth of non-governmental organisations

81

82

83 84

85 86

See M. Foucault, Nietzsche, Genealogy, History" in Paul Rabinow (Ed.), The Foucault Reader 76-100, at 85 (1984). Id., at 86. Id. See J. George, 'Back to the Future'?" in Greg Fry and Jacinta O'Hagan (Eds.), Contending Images of World Politics 33-48 (2000). See B. Rajagopal From Resistance to Renewal: The Third World. Social Movements. and the Expansion of International Institutions, 41 Harvard International Law Journal 531-578 (2000). See I. Wallerstein, Antisystemic Movements: History and Dilemmas" in S. Amin, et al. (Eds.), G. Transforming the Revolution: Social Movements and the World-System 13-54, at 41 (1990).

66

B.S. Chimni

(NGOs) with their ability to reach out through using modern means of communication contributed greatly to this presence. The NSMs, generally speaking, tend to view with suspicion OSMs with their accent on class based struggles. The OSMs emerged in the nineteenth century when the working class became sufficiently organised to harbour the ambitions of capturing state power. The key date perhaps is 1848 as the 'revolution in France marked the first time that a proletarian-based political group made a serious attempt to achieve political power and legitimise worker's power (legalisation of trade unions, control of the workplace'. 87 The globalisation process with the increased mobility of capital and the intensification of both inter-state and intra-state international trade has meant 'huge movements' into the global labour force. 88 According to Harvey, 'the global proletariat is far larger than ever and the imperative for workers of the world to unite is greater than ever'. 89 There is the growing numbers of unemployed in the North that has been witnessing jobless growth. Of course, ' ... the bulk of the Reserve Army of capital is located geographically in the peripheries of the system'. 90 It is made up of the enormous mass of urban unemployed and semi-employed, as also the large mass of rural unemployed. 91 In other words, never before has the slogan of 'workers of the world unite' has meant so much to so many. It is however not entirely surprising that class-based struggles are coming to be neglected by NSMs as the OSMs have failed to reach out to them. The privileging of non-class struggles is also encouraged by the transnational ruling elite for it prevents effective opposition to its neo-liberal policies. After all, global strategies and concentrated power cannot be fought by decentralised means and forms of resistance. In the circumstances, what we need to do is 'to preserve what has been gained from struggles of the 1850-1950 period (both the concrete institutions and the intellectual understanding) and add to it a strong dash of daring new approaches derived from the post-1945 experience'. 92 It calls for a dialogue between new and old social movements for, as Wallerstein notes, 'all existing movements are in some ghetto'. 93 What is required is 'a conscious effort at empathetic understanding of the other movements, their histories, their priorities, their social bases, their current concerns'. 94 Their need to be strategic alliances not only in the short but also in the medium term. 87 88

89 90

91

92 93 94

Id., at 16. See D. Harvey, Spaces of Hope 42 (2000). And China is not alone in this. The export-oriented

garment industry of Bangladesh hardly existed twenty years ago, but it now employs more than a million workers (80 per cent of them women and half of them crowded into Dhaka). Cities like Jakarta, Bangkok, and Bombay, as Seabrook (1996) reports, have become Meccas for formation of a transnational working class - heavily dependent upon women - living under conditions of poverty, violence, chronic environmental degradation, and fierce repression'. See Harvey at 42. Id., at 45. See Amin, supra note 15, at 99.

Id. See Wallestein, supra note 86. Id., at 53. Id., at 52.

Third World Approaches to International Law

67

Of course, there is also the necessity to think about long term goals. On our part, we would like to revisit the idea of socialism. Socialism should not be seen as a fixed ideal or a frozen concept. It should today be perceived as expressing the aspirations of equality and justice of subaltern peoples. The ideal is to be realised through non-violent means and should exclude all manner of dogmatic thinking and undemocratic practices. The ideal of democratic socialism would be actualised by way of reform and not revolution and would not exclude reliance on market institutions. It would be realised through the collective struggles of different oppressed and marginal groups. The identity and role of these groups, as we have noted above, is not fixed in history. New identities of oppression emerge and vie for space with other groups. If this understanding is accepted then we need 'an international political movement capable of bringing together in an appropriate way the multitudinous discontents that derive from the naked exercise of bourgeois power in pursuit of a utopian neoliberalism'. 95 This calls for 'the creation of organisations, institutions, doctrines, programs, formalised structures, and the like, that work to some common purpose'. 96 There is, in other words, a need to build a movement that cuts across space and time, involving NSMs and OSMs in every struggle, to form a global opposition force that can challenge those transnational social forces which bolster the regime of capital at the expense of peoples interests. Today, from Seattle to Genoa we are witnessing an upsurge of sentiment against the neo-liberal form of globalisation. New forms of struggle have been invented to mobilise people against the injustices of globalisation. There has been adroit and imaginative use of digital space to create a global public sphere in which the evolving international civil society can register its protest. While the sentiments that are expressed have no unified outlook, and are in fact riddled with contradictions, the significance of the protest cannot be disregarded. If these protests can draw in the OSMs, and the latter respond to it and present a united front, there would be much to cheer about. Albeit, in terms of framing a theory of resistance we need to distinguish between those demands that are not so good for third world countries and those that are. Thus, for example, the demand for bringing in labour standards into WTO is inimical to the interests of third world countries as it would be used as a device of protection by the North. 97 From the standpoint of TWAIL, it is necessary first, to make the story of resistance an integral part of the narration of international law. There is perhaps a need to experiment with literary and art forms (plays, exhibitions, novels, films) to capture the imagination of those who have just entered the world of international law. Second, we need to strike alliances with other critics of the neo-liberal approach to international law. Thus, for instance, both feminist and 95

96 97

See Harvey, supra note 88, at 49. Id. See S. Gopal, American Anti-Globalization Movement, Economic and Political Weekly, (August 25, 2001) page3226-3233.

68

B.S. Chimni

third world scholarship address the question of exclusion by international law. There is therefore a possibility of developing coherent and comprehensive alternatives to mainstream Northern scholarship. In other words, we should collaborate with feminist approaches to reconstruct international law to address the concerns of women and other marginal and oppressed groups. Third, we need to study and suggest concrete changes in existing international legal regimes. The articulation of demands would assist the OSMs and NSMs to frame their concerns in a manner as to not do harm to third world peoples. 6. THE ROAD AHEAD: FURTHER THOUGHTS ON A TWAIL RESEARCH AGENDA

Identifying the future tasks of TWAIL is severely constrained by the protocols of what are acceptable goals and what is deemed good academic work. It compels the academia to playing a self-fulfilling role as the protocols, in a manner of speaking, shame individual academics into imagining only certain kind of social arrangements. For those who accept the protocols are held up as models of clear thinking. On the other hand, a variety of social and peer pressures are brought to bear on dissenting academics to neutralize their critical energies. Even eminent personalities are unable to be bold and courageous in evaluating contemporary trends and imagining alternative futures. Thus, for instance, Falk writes of the report Our Global Neighborhood produced by the Commission of Global Governance: 'Its most serious deficiency was a failure of nerve when it came to addressing the adverse consequences of globalization, a focus that would have put such a commission on a collision course with adherents of the neo-liberal economistic world picture'. 98 In contrast, we would urge critical third world scholars to willingly court "irresponsibility" if that is what it takes to boldly critique the present globalization process and project just alternative futures. The commitment to ushering in a just world order has of course to be translated into a concrete research agenda in the world of international law. In addition to the ideological and substantive tasks already identified, we list below some subjects that deserve the attention of third world scholars. 6.1. Increasing Transparency and Accountability of International Institutions

International law, we have argued, does not today promote democracy either within States or in the transnational arena. Those who seek to contest the present state of the relationship between State and international law need to identify the constraints imposed on realizing democracy in the internal and transnational arenas and push forward the global democracy agenda. The steps 98

See R. Falk, Global Civil Society and the Democratic Prospect, in B. Holden (Ed.), Global Democracy: Key Debates 62-179, at 170 (2000).

Third World Approaches to International Law

69

leading to global democracy will not conform to a neat model. Instead, it will be the result of slowly increasing the transparency and accountability of key actors like States, international institutions and transnational corporations. There is much work that needs to be done in this respect. Thus, for example, a correlative of international institutions possessing legal personality and rights is responsibility. It is 'a general principle of international law' concerned with 'the incidence and consequences of illegal acts', in particular the payment of compensation for loss caused. 99 There is a need to elaborate this understanding and develop the law (either in the form of a declaration or convention) on the subject of responsibility of international institutions. This would allow powerful institutions such as the IMF, World Bank and WTO to be made accountable, among others, to the global poor. 100 Towards this end, there is also an urgent need to democratize decision-making within international institutions such as the IMF and the World Bank for they have come to exercise unprecedented influence on the lives of ordinary people in the third world. 101 This calls for solutions that temper the desire for change with a strong dose of realism. 6.2. Increasing Accountability of Transnational Corporations

There are several steps that can be taken to make the transnational corporations (TNCs) responsible in international law. The steps could include: (i) adoption of the draft United Nations code of conduct on TNCs; (ii) the assertion of consumer sovereignty manifesting itself in the boycott of goods of those TNCs that do not abide by minimum human rights standards; (iii) monitoring of voluntary codes of conduct adopted by TNCs in the hope of improving their public image; (iv) the use of shareholders rights to draw attention to the needs of equity and justice in TNC operations; (v) the imaginative use of domestic legal systems to expose the oppressive practices of TNCs; and (vi) critique of bodies like the International Chambers of Commerce for pursuing the interests ofTNCs to the neglect of the concerns of ordinary citizens. 102 All these measures call for the critical intervention of international law scholarship. 99 100

101

102

See I. Brownlie, Principles of Public International Law, 4th ed., 701 and 433 (1990). See A. Anghie Time Present and Time Past: Globalization, International Financial Institutions and the Third World, 32:2 New York University Journal of International Law and Politics 243-290 (2000). To take the case of the IMF, the decision making process in it is based on a system of weighted voting which excludes its principal users, the poor world, from a say in the policy making. The Third World voice is not heard even as the policies of the Fund inflict enormous pain and death on the people who inhabit it. Nearly 4.4 billion people or 78 per cent of the world's 1990 population live in the Third World. Despite constituting an overwhelming majority of the membership the Third World countries as a whole had a voting share of approximately 34 per cent in the IMF in the mid-nineties. See R. Gerster, Proposals for Voting Reform within the International Monetary Fund, Journal of World Trade 121-133 (1993). Without the OPEC countries (who act as creditor states in the institution) this share is reduced to 24 per cent. See the Irene Report, Controlling Corporate Wrongs: The Liability of Multinational Corporations: Legal Possibilites, Strategies and Initiatives for Civil Society, (2000), online:

70

B.S. Chimni

6.3. Conceptualizing Permanent Sovereignty as Right of Peoples and not States

Research needs to be directed towards translating the principle of permanent sovereignty over "natural resources" into a set of legal concepts which embed the interests of third world peoples, as opposed to its ruling elite. In the past, the Program and Declaration of action for a New International Economic Order and the Charter of Economic Rights and Duties of States were statist in their orientation. While it is true that the State is, in terms of international demarcation of territories, an institution of collective property, the ultimate control over this property is to vest with people. From this perspective, there is a need to address the difficult question of how to give legal content to peoples sovereign rights? There is often in this respect the absence of appropriate legal categories and are difficult to implement in practice. Thus, for example, Article 8(j) of the Convention on Bio-Diversity calls for empowering local communities. 103 Yet it has not easy to implement the provision given the absence of clarity about the legal definition of local communities. 6.4. Making Effective Use of Language of Rights

There is the need to make effective use of the language of human rights to defend the interests of the poor and marginal groups. The recent resolutions passed by different human rights bodies drawing attention to the problematic aspects of international economic regimes offers the potential to win concessions from the State and the corporate sector. 104 The implications of these resolutions need to be analysed in depth and brought to bear on the international and national legal process. A second related task is to expose the hypocrisy of the first world with respect to the observance of international human rights law and international humanitarian laws.

103

< http://elj.warwick.ac.uk/global/issue/2000-1/irene.html > See also J. Madeley, Big Business Poor Peoples: The Impact of Transnational Corporations on the World's Poor 169-180 (1999). Article 8(j) of the Convention on Biological Diversity, 1982 states: Each Contracting Party shall, as far as possible and as appropriate:

104

(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices; ... For the text of the Convention see N. Arif, International Environmental Law: Basic Documents and Select References 279 ( 1996). E/CN.4/Sub.2/2000/7, Commission on Human Rights: Sub-Commission on the Promotion and Protection of Human Rights - The Realization of Economic, Social and Cultural Rights: Intellectual Property Rights and Human Rights, 17 August, 2000. Para 3 of the resolution 'reminds all Governments of the primacy of human rights obligations over economic policies and agreements'.

Third World Approaches to International Law

71

6.5. Injecting Peoples Interests in Non Territorialised Legal Orders

From the standpoint of the development of international law, the emergence of global law without the State is both empowering and worrisome. The trend needs to be analysed from a peoples perspective. The process is empowering in as much as it can be used by progressive OSMs and NSMs to project an alternative vision of world order through the production of appropriate international law texts. Much work needs to be done in this direction. At the same time, there is a need to explore 'the tension between the geocentric legality of the nation-state and the new egocentric legality of private international economic agents' in order to ensure that the interest of third world peoples are not sacrificed. 105 6.6. Protect Monetary Sovereignty Through International Law

A great deal of research needs to be directed towards finding ways and means to protecting the monetary sovereignty of third world countries. Third world States are presently doing so inter alia through the creation of capital controls (e.g., Malaysia after 1997), tax on financial transactions (Chile), prescription of a fixed period of stay before departure, a regional monetary fund etc. But there is a need for a new financial architecture that more readily responds to the anxieties of third world States and peoples. This calls for the informed intervention of international law. But the role of the international financial market and institutions in eroding the monetary sovereignty of third world countries is little understood even today. Indeed, few areas cry out for more attention than international monetary and financial law. This situation needs to be immediately corrected. 6.7. Ensuring Sustainable Development With Equity

There is an urgent need to shape an integrated response to global environmental problems. In this context, 'the whole question of constructing an alternative mode of production, exchange, and consumption that is risk reducing and environmentally as well as socially just and sensitive can be posed'. 106 From an international law perspective, the empty concept of sustainable development needs to be filled with legal content that does not stymie the development of the third world countries. 107 At the moment, the North is exploiting all forums to avoid what Jameson calls the "terror of loss." 108 It explains, for example, the approach of the Bush administration to the Kyoto protocol. In other 105

106 107

108

See J. Robe, Multinational Enterprises: The Constitution of a Pluralistic Legal Order in G. Teubner (Ed.), Global Law Without a State 45-79 ( 1997). See Harvey supra note 88, at 223. See B. Chimni, Permanent Sovereignty over Natural Resources: Toward a Radical Interpretation, 38 Indian Journal oflnternational Law 208-217, at 216 (1998). See M. Hardt and K.Weeks, (Ed.), The Jameson Reader 167 (2000).

72

B.S. Chimni

words, there is a need to ensure that the burden of realising the goal of sustainable development is not shifted to the poor world or used as a tool of protection. 6.8. Promoting the Mobility of Human Bodies

While capital and services have become increasingly mobile in the era of globalization, labor has been spatially confined. More significantly, in the realm of forced (as opposed to voluntary) migration the first world has, through a series of legal and administrative measures, undermined the institution of asylum established after the second world war. The post Cold War era has seen a whole host of restrictive practices which prevent refugees fleeing the underdeveloped world from arriving in the North. 109 A sustained critique of these practices is called for. It will, among other things, prevent the first world from occupying the moral high ground. 7. CONCLUSION

International law has always served the interests of dominant social forces and States in international relations. However, domination, history testifies, can coexist with varying degrees of autonomy for dominated States. The colonial period saw the complete and open negation of the autonomy of the colonized countries. In the era of globalization, the reality of dominance is best conceptualized as a more stealthy, complex and cumulative process. A growing assemblage of international laws, institutions and practices coalesce to erode the independence of third world countries in favor of transnational capital and powerful States. The ruling elite of the third world, on the other hand, has been unable and/or unwilling to devise, deploy, and sustain effective political and legal strategies to protect the interests of third world peoples. Yet, we need to guard against the trap of legal nihilism through indulging in a general and complete condemnation of contemporary international law. Certainly, only a comprehensive and sustained critique of present-day international law can dispel the illusion that it is an instrument for establishing a just world order. But it needs to be recognized that contemporary international law also offers a protective shield, however fragile, to the less powerful States in the international system. Second, a critique that is not followed by construction amounts to an empty gesture. Imaginative solutions are called for in the world of international law and institutions if the lives of the poor and marginal groups in the third and first worlds are to be improved. It inter alia calls for exploiting the contradictions that mark the international legal system. The 109

See B. Chimni The Geopolitics of Refugee Studies: A View from the South, 1:4 Journal of Refugee Studies 350-374 (1998) and First Harrell-Bond Lecture Globalization, Humanitarianism and the Erosion of Refugee Protection, 13:3 Journal of Refugee Studies 243-262 (2000).

Third World Approaches to International Law

73

economic and political interests of the transnational elite are today not directly translatable into international legal rules. There is the need to sustain the illusion of progress and maintain the inner coherence of the international legal system. Furthermore, individual legal regimes have to offer some concessions to poor and marginal groups in order to limit resistance to them both in the third world and, in the face of an evolving global consciousness, in the first world. The contradictions which mark contemporary international law is perhaps best manifested in the field of international human rights law which even as it legitimizes the internationalization of property rights and hegemonic interventions, codifies a range of civil, political, social, cultural and economic rights which can be invoked on behalf of the poor and the marginal groups. It holds out the hope that the international legal process can be used to bring a modicum of welfare to long suffering peoples of the third and first worlds.

JAMES THUO GATHII*

5. Geographical Hegelianism in Territorial Disputes Involving Non-European Land Relations: An Analysis of the Case Concerning Kasikili/Sedudu Island (Botswana/Namibia)

1. INTRODUCTION

In the case concerning Kasikili/Sedudu Island, 1 the decision of the International Court of Justice ('ICJ') exemplifies what I refer to here as "geographical Hegelianism." 2 The case involved a dispute between Namibia and Botswana over Kasikili/Sedudu Island. In deciding this dispute, the Court focused on the Anglo-German treaty of 1890 (as Botswana and Nambia in part derived their title from this treaty) and on general principles of international law relating to the acquisition of sovereignty over territory. International law requires any entity which claims sovereignty over territory to establish that it has used and occupied the territory in question. This is the decisive test for establishing sovereignty over territory. In the case of disputed

*

2

LL.B. (Hons.) Nbi; SJD, Harvard; Assistant Professor, Albany Law School, New York. Dedicated to our two wonderful sons, Michael and Ethan Thuo. Thanks to Antony Anghie, Patricia Reyhan and Alex Seita for their comments on an earlier version of this paper. Thanks too to Carol Mwangi for engaging me on arguments pursued in this review with love and affection. I would also like to especially thank Ed Brennan for retrieving a huge section of this document after I had lost it on my hard-drive. Kasikili/Sedudu Island, Judgment of 13 December 1999, 1999 ICJ Rep. 4, also available at http://www.icj-cij.org. I borrow this term from, E. Said, Secular Interpretation, the Geographical Element, and the Methodology of Imperialism, in G. Prakash (Ed.), After Colonialism: Imperial Histories and Postcolonial Displacements 25-26 (1995). As I note in Section 6, below, international law adopts this geographical Hegelianism by treating most non-European peoples as distinct from European ones to the extent, for example, they have nomadic as opposed to settled lifestyles. This sociological observation is then translated into an international legal principle to the effect that a nomadic population would not normally count for purposes of determining territorial sovereignty. The only legal recognition given to non-European use and occupation of territory under international law, since it cannot form the basis of a territorial claim, are rights falling short of territorial sovereignty over land so occupied or held by non-European peoples, see Western Sahara, Advisory Opinion of 16 October 1975, 1975 ICJ Rep. 12, at 63-65, 69.

75 A. Anghie, B. Chimni, K. Mickelson, 0. Okafor (eds.), The Third World and International Order: Law, Politics and Globalization, 75-115 © 2003 Koninklijke Brill NV. Printed in Great Britain.

76

James Thuo Gathii

territory, it is rarely possible for any of the contending states to satisfy this test. Consequently, international law has developed a number of other factors which must then be considered in deciding sovereignty over territory. The crucial issue, then, is which of the contending states can make superior claim on the basis of these other factors-such as a subjective intention to govern that territory, and a manifestation of an intention to exercise sovereignty over that territory. In the Kasikil/Sedudu case, there was decisive evidence, acknowledged by the Court, of the use and occupation of the disputed territory by the Masubia, an African community. The simple application of the basic test outlined above would suggest, then, that sovereignty resided in the Masubian people. This, however, was not a possibility examined by the Court. In dismissing the uncontroverted evidence of Masubian occupation and use, the Court engaged in what I have termed 'geographical Hegelianism' In this review, geographical Hegelianism refers to at least two primary features of the Court's Decision. First, it places more probative value on physical, geographic, scientific and economic evidence at the expense of evidence of the use and occupation of the disputed island by the Masubia, an African community, over the disputed island. In essence, in cases such as the case concerning Kasikili/Sedudu Island, the disputed island - and indeed Africa are treated as an unhistorical and unconscious geographical entity which the colonizing states opened up to commerce and civilization. Second, by prioritizing the subjective requirement (by a European state) of intent to own territory over the traditional requirement of showing superior evidence in terms of continuous and effective control or display of sovereignty in relation to claims by other states, 3 the Court displaces evidence of the Masubia's use and occupation of the contested island as a basis for establishing The Permanent Court of International Justice in the Legal Status of Eastern Greenland Case (Denmark v. Norway), 1933 PCIJ (Ser. A/B) No. 53, 3 Hudson, World Ct. Rep. 148 (1934) observed that it is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has to be satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled areas, id. Under the effective control test, the relative superiority of evidence produced by the parties to disputed territory goes towards establishing title. Besides use and occupation, inaction, acquiescence, recognition, treaties of cession are all elements that could go towards establishing such title. However, none of these elements by themselves go towards establishing title by itself, see discussion in Section 5 below. See also Eastern Greenland Case, supra, at 45-48; the Minquiers and Ecrehos (France/United Kingdom), Judgment of 17 November 1953, 1953 ICJ Rep. 65-67; G. Schwarzenberger, Title to Territory: Responses to a Challenge, 51 AJIL 308, at 315 ( 1957); see also Judge Huber's decision in the Island of Palmas Award (United States v. The Netherlands), Permanent Court of Arbitration, 1928, 2 UN RIAA 831, at 840 ( 1928). For a recent attempt to rehabilitate the effective control test with an overlay of liberal values, see B. Roth, Governmental Illegitimacy in International Law (1999).

Geographical Hegelianism

77

historic title over the island to the Masubia. Ironically, to the extent that Masubian use and occupation of territory is relevant in the case concerning Kasikili/Sedudu Island, it goes to establish territorial sovereignty in a European state - not to a non-European entity. 4 Under the subjective test 5 African occupation is acknowledged as a physical fact, but it does not rise to a legal basis for an African community to acquire title to territory. Instead, it becomes a factor to consider when resolving the dispute between two European states-who are the only states that can claim sovereignty over territory during the nineteenth century and for the most part prior to the independence of non-European states. My analysis of the Court's opinion teases out how these subjective requirements are moored in Eurocentric assumptions to the extent that they foreclose inquiries into the legitimacy of how territory is acquired, such as through the use of force or conquest. I argue that these subjective requirements are just as flawed as, if not worse than, the showing of superior evidence of continuous and effective control. The continuous and effective control test for determining sovereignty over territory emphasizes a showing of effective possession of territory be a European state through exercise of certain sovereign acts within the territory over a period of time, recognition by other states or their acquiescence as a precondition to claiming title where there is another claimant state. The effective continuous and effective control test and the subjective tests analysed are similar to the extent that neither of them acknowledges the agency of formerly colonized peoples. 6 The subjective requirements are based on the disturbing premise that only the consent of European states is necessary to adjudicate nineteenth century claims of title to territory to the exclusion of the consent of non-European peoples. In essence, subjectivity is exclusively European. Hence, in seeking to determine the intent of colonial powers to a sphere of influence treaty, the ICJ in the case concerning Kasikili/Sedudu Island in effect continued a tradition of erasing the subjectivity and agency of nonEuropean peoples in determining disputes to boundaries, since their modes of occupation and use of territory cannot in and of themselves be a basis for establishing title to territory. [Such African modes of occupation and use of territory could only be relevant through the circular route of the extent to which they reflected the belief of their colonizing states that such occupation and use constituted title, and the acquiescence of a challenging colonial state in the fact that such use and occupation was held pursuant to a legitimate claim of title. These subjective requirements arise from two related assumptions. First, that treaties between colonial powers in the nineteenth century extinguished preexisting title to territory based on African use and occupation. Second, that pre-colonial African relations to territory were merely occupation and use and See note 164 infra and accompanying text. See Section 6 infra. See Section 6 infra.

78

James Thuo Gathii

did not constitute a radical title to territory. These presumptions are particularly absurd because the application of a showing of superior evidence - especially that of effective control - would result in positively affirming such evidence of use and occupation without requiring an additional element of subjective intent where the evidence was attributed to a European colonizing state. In essence, the law on title to territory is subtly laced with an implicit evolutionary or hierarchical sub-text that characterizes non-European relations to land as primitive and as such not creating a legal title. Non-European land relations are therefore lower in the evolutionary hierarchy of civilizations, while European land relations are hierarchically superior, and settled as opposed to migratory. Unlike non-European land relations, European land relations are un-problematically characterized as being accompanied by legal title to the land. 7 In addition, the majority decision closely reflects other disturbing Eurocentric assumptions embedded in the international law of title to territory regarding Africans. The Kasikili/Sedudu Island Decision for example frequently refers to the fact that Masubian roaming was so much part of their way of life that even colonial authorities took no note of it! Unlike settled and ordered 'civilization,' such migratory practices, according to the Court, are inconsistent with the only universal viable model of political organization for all peoples. This universal model is embodied in European statehood and its attendant artifacts of bounded territory: fixed populations and effective governance. As a result, the majority debunks this evidence of the Masubia's use and occupation of the island and instead gives more probative value to the economic intentions of the colonizing powers and the geographical and scientific evidence to interpret the 1890 Anglo-German Treaty in determining title to the disputed island. In effect, Africa is treated as an unconscious geographical entity - its occupant's intent and consent remain as irrelevant as they did during the height of colonial rule in the nineteenth century - notwithstanding the adoption of a test that puts the subjective requirement of intention to legally possess territory ahead of mere occupation. In this review, I also argue that although the Court ostensibly interprets the 1890 Anglo-German Treaty on the basis of its ordinary meaning and in the context of its object and purpose in terms of Article 31(1) of the 1969 Vienna Convention on the Law of Treaties, the Court's analysis actually applies the much higher standard of a strict grammatical and logical construction which leads it to mistakenly overstate the significance of the subjective requirements described above. 8 In exploring these claims, I proceed as follows: In Section 2, I outline the S.W. Kan'gara, Rethinking Property: Language, Meaning and Institutions, 13 Hague Yearbook of International Law 35-42 (2000) (debunking simplistic characterizations of non-western notions of property by demonstrating the variety of meanings of property embedded within it and their strategic deployment in an African context that defy simplistic 'colonial' designations of it as collectivist as opposed to private). See Section 6 infra.

Geographical Hegelianism

79

facts of the case, the legal issues and a historical background to the dispute; Section 3 discusses the manner in which the ICJ proceeds to interpret the ambiguities in the 1890 Anglo-German treaty, particularly with regard to the probative value it places on various elements of evidence; Section 4 discusses the legal status of Masubian use and occupation of the island in the majority and dissenting opinions and discusses the implications of the Court's treatment of the 1890 Anglo-German Treaty as boundary as opposed to a sphere of influence treaty particularly for contemporary concerns of international environmental law; Section 5 discusses the mechanistic application of treaty interpretation principles and its consequences in privileging economic, geographical and scientific evidence at the expense of Masubian use and occupation of the island; Section 6 discusses authority in precedent and doctrine for the use of superior evidence of continuous and effective control as the test for proving acquisition of title to territory with respect to occupation. In this Section 6, I therefore show that, under this test, more weight would have been given to Masubian use and occupation to buttress - rather than at the expense of - the economic intentions of the colonial powers and the geographical and scientific evidence before the Court.

2. FACTUAL ABSTRACT, LEGAL ISSUES AND HISTORICAL BACKGROUND

The case revolves around a boundary and territorial dispute between Namibia and Botswana with regard to the Kasikili/Sedudu Island. The Kasikili/Sedudu Island lies between the southern and northern channels of the River Chobe. The island is referred to as Kasikili in Namibia and Sedudu in Botswana, hence Kasikili/Sedudu. 9 The island is located to the south of Namibia and the north of Botswana. The 1890 Anglo-German Treaty which dealt with the legal status of the island was crucial to the resolution of this dispute, as Namiba was in time the successor state to Germany and Botswana the successor state of the United Kingdom. The English version of Article 111(2) of the 1890 Anglo-German Treaty specified the boundary between the British and German spheres of influence to lie in the center of the main channel. The German version of the same clause stated that the boundary lies in the Thalweg des Hauptaufes. The boundary and territorial dispute arose from the fact that neither of these clauses clearly points to either of the channels as the main channel or thalweg. The island is, for three-and-a-half square kilometers, located in what Namibia termed a remote area at the extreme eastern part of the Caprivi Strip. 10 It is

10

Majority opinion, at para. 11. Named after the German Chancellor at the time of the conclusion of the Anglo-German Agreement of 1 July 1890. See Judgment of the Court, at para. 11.

80

James Thuo Gathii

uninhabited [ ... ]for some years [ ... ] [and] is in substantial part under water for almost half of each year. 11 The island is home to an indigenous group, the Masubian people, as well as being a tourist destination. On the Botswana side of the island are the headquarters of the Chobe National Park, "a protected reserve with a wide variety of wildlife." 12 The island will be referred to in this paper interchangeably as Kasikili/Sedudu Island, the island and the Caprivi Strip. For reasons discussed at length in this paper, the Court ruled by eleven votes to four that the boundary between the Republic of Botswana and the Republic of Namibia follows the line of the deepest soundings in the northern channel of the Chobe River around Kasikili/Sedudu Island and, again by eleven votes to four, that Kasikili/Sedudu Island forms part of the territory of the Republic of Botswana. 13 2.1. Historical Background to the Dispute

The case arose from a dispute between Botswana and Namibia regarding the exact location of their international boundary along the River Chobe and the legal status of the Kasikili/Sedudu island, which is surrounded by the southern and northern branches of the River Chobe. Namibia claimed that the southern channel of the River constituted the boundary, while Botswana claimed that the northern channel was the appropriate boundary. The 1890 Treaty between Germany and Great Britain offered unclear guidance. Article III(2) of that Treaty provided that Germany's sphere of influence was bounded by a line which runs eastward along the 18th parallel of south latitude "till it reaches the river Chobe, and descends the center of the main channel of that river to the junction of the Zambezi." 14 It is not evident whether this clause refers to the southern or northern channel. In the German version of the Treaty, the center of the main channel is referred to as Thalweg des Hauptaufes (hereinafter 'thalweg'). It is unclear whether the English and German clauses are synonymous or whether they have different connotations. 15 The 11

12

13 14 15

Para. 5 of the opening overview of Namibia's affirmative case as presented by Prof. Abram Chayes, 15 February 1999 (CR99/l). Majority opinion, at para. 12. These include elephants, hippopotamus, buffalo, lechwe, rhinoceros, giraffe, eland, baboon, lion, zebra and leopard. See Justice Weeramantry's Dissenting Opinion, at para. 5. Majority opinion, at para. 104. Justice Weeramantry's Dissenting Opinion, at para. 7. As Justice Weeramantry observes, this presents a classic case of what the law relating to treaties would class a situation where the ordinary or indeed the legal and scientific meaning of the words used leaves one in considerable doubt as to the correct interpretation. The normal rule of interpretation of documents that words are to be interpreted according to their ordinary meaning is naturally modified if those words also bear a technical meaning in the context in which they are used,

Geographical Hegelianism

81

legal ownership of the Kasikili/Sedudu Island thus largely depended on the interpretation these terms would be given by the Court. Upon such interpretation, if the main channel were determined to be the southern channel of the Chobe River, Namibia would own the island. If the main channel were determined to be the northern channel, Botswana would own the island. 16 This dispute had waited over a hundred years to be resolved. It is layered with a rare richness of oscillating and shifting legal claims over the island. Negotiations between colonial authorities regarding the boundary and territorial claims led to a cold peace between them as a means of pre-empting international legal and political attention to the messy and mutual interests over the island. Hence, in 1951 a Union of South Africa official, writing to a British Bechuanaland official about the dispute urged the British to "let the whole matter lapse into the decent obscurity from which it should never [have been] allowed to emerge." 17 Although the Bechuanaland official was hesitant to acquiesce to such an arrangement for fear that it might be construed against the British, 18 this correspondence is indicative of the insignificance of the island on the part of the British authorities, on the one hand, and the quiet diplomacy with which the Union of South Africa sought to soft-peddle it. The involvement of the Union of South Africa in the dispute as the successor to Germany after its defeat in the World War I is a major part of a complex historical layering of colonial authority over the Kasikili/Sedudu Island. Prior to colonial intrusion, the island was occupied intermittently by the Masubian peoples. This pre-colonial autonomy was displaced by German colonizers. In its case, Namibia claimed that Germany had from 1909 incorporated the local institutions of the Masubian people into the structure of colonial governance, "using them as instruments for exercising their authority." 19 Namibia also contended that subsequent colonial authorities involved the Masubian people Justice Weeramantry's Dissenting Opinion, at para. 12. Similarly, Justice Oda's Separate Opinion notes: The Court does not have to find where the main channel of the River Chobe is located, it merely has to determine which of the two channels around Kasikili Island is or contains the main channel and what forms its thalweg. And the conventional line may leave room for doubt, but that doubt cannot be solved in a reasonable and arguable way by choosing a completely different approach which ignores the terms of the treaty, 16

17

at para. 15. Justice Weeramantry's Dissenting Opinion, at para. 8. Majority opinion, at para. 60. The same official in reply to the Bechuanaland official's reply wrote in a letter dated 13 September 1951: I really feel that the possibility of future 'discussion or controversy' regarding Kasikili is extremely remote. After all the present factual position, to which happily we now return, has existed for generations without any conflict- indeed, in my opinion, even the recent contretemps was unnecessary,

1s 19

id. Id. Id., at para. 71.

82

James Thuo Gathii

through a system of indirect rule. German administration of the Caprivi Strip ended after the outbreak of World War I. From 1914, it was occupied and administered by British forces from Southern Rhodesia. With a mandate from the League of Nations in 1919, South Africa became the administering authority. For part of this period, between 1921 and 1929, South Africa delegated the administration of the Strip to the British Bechuanaland Protectorate authorities. 20 On 27 October 1966, the United Nations General Assembly terminated South Africa's mandate over South West Africa by Resolution 2145 (XXI) of 27 October 1966. The Security Council further approved the measure by Resolution 276 ( 1970) of 30 January 1970. In addition, the ICJ, in its Advisory Opinion of21June1971 on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 ( 1970) declared the continued presence of South Africa in Namibia illegal. It further held that South Africa was under an obligation to withdraw its administration over Namibia immediately, thereby putting an end to its occupation of the territory. 21 Thus South Africa remained in illegal occupation of South West Africa/Namibia and the Caprivi Strip until Namibia's independence on 21 March 1990. These mutations in the status of the Caprivi Strip and the political and international legal questions surrounding them partly reveal the difficulties surrounding any resolution of the territorial and boundary dispute before the case was filed with the ICJ. Accordingly, the majority opinion notes that prior to the independence of Namibia in 1990, notwithstanding contacts between the President of the United Nations Council for Namibia and the Botswana Government (which became independent in 1966 and is successor to the British under the 1890 Anglo-German Treaty) to resolve the dispute, the parties had no competence to conclude an agreement to resolve the dispute in view of South Africa's illegal occupation of South West Africa. 22 These legal difficulties were perhaps what Mr Dickinson, the District Commissioner at Kasana, Bechuanaland, had in mind when he wrote to Major Trollope of the Union of South Africa on 5 July 1951, noting that "the legal complications which are of an international nature, and beset the question of excorporating Kasikili Island from the Bechuanaland Protectorate will involve difficulties disproportionate to the matter at issue." 23 Indeed, under Article 7 of South Africa's Mandate over South West Africa, no territorial modification could have been made to a mandate without the consent of the Council of the League of Nations. Moreover, even after the High Commissioner for Bechuanaland wrote to the Secretary of State for Commonwealth Relations in 20

21 22

23

See id., at para. 14.

1971 ICJ Rep. 16, at 58, para. 133. Majority opinion, at para. 69. The Court further observes that even if the agreement of the parties in 1984-1985 was invalid, no evidence had established that it had not been adopted by Namibia, id., at para. 70. Id., at para. 60.

Geographical Hegelianism

83

London seeking acquiescence to a South African proposal to locate the boundary in the southern channel as long as the northern channel was available to British Bechuanaland for navigation purposes, the High Commissioner rejected such a resolution in the following terms: while the slight alteration proposed [by the South African Government] seem[ed] of little intrinsic importance, an examination of the legal and political aspects ha [ d] revealed that certain difficulties [might] ensue both from the standpoint of international law and as regards possible uncertainty of jurisdiction. 24 In fact, as the Chief Secretary in a subsequent letter to the Bechuanaland High Commissioner explained, a cession of territory however small or nominal, to South West Africa is open to some objection since the publicity involved might arouse curiosity and subsequent criticism on the part of those who dislike the Union Government's refusal to place South West Africa under trusteeship. 25 Hence, although the Chief Secretary treated the issue as one involving a technical difficulty, 26 it is clear that for the British Government there was a significant legal question relating to the Union of South Africa's assertion of jurisdiction over - at the very least - the disputed island. It is therefore remarkable that, while there had not been any significant physical or geographical mutation in the channels of the River Chobe for over 100 years, 27 the island in between its southern and northern channels had undergone enormous changes in its legal status as a result of the colonial exigencies of European interests and of the South African apartheid regime. This is the politically explosive crucible against which Namibia and Botswana inherited the uncertainty of the boundary and territorial dispute they submitted to the ICJ for settlement. It is also part of the context that in October 1984 a shootout occurred between members of the South African soldiers and Botswanan Defence Force, indicating the tensions generated by the uncertainty over the boundary and territorial dispute. 28 In their Special Agreement submitted to the ICJ, both Botswana and Namibia committed themselves to recognizing the ICJ's determination to be final and binding upon them, 29 and further, that they should as soon as possible after the delivery of the Court's judgment take steps necessary to carry out the judgment. 30 24

25

26 27

28 29

30

Letter dated 24 August 1949 from the Chief Secretary for Colonies to the High Commissioner for Bechuanaland. See the majority opinion, at para. 59. Letter dated 20 October 1949 from the Chief Secretary for Colonies to the High Commissioner for Bechuanaland. See the majority opinion, at para. 59. Id. Majority opinion, at para. 31. Id., at para. 64. Art. IX( 1) of the Special Agreement, reproduced at the beginning of the majority opinion. Art. IX( 2) of the Special Agreement, id.

84

James Thuo Gathii

The resolution of the dispute after the formal end of the colonialism in Bechuanaland and the end of South Africa's illegal occupation - and thus the independence of Namibia - raises a quintessentially post-colonial conundrum: given that the episodic controversies over the boundary and territorial claims in respect of the Kasikili/Sedudu Island involved mutual rights of navigation and of use and occupation by African communities on both sides of the controversy, on what basis would the interpretive and substantive rules of international law untangle these messy details to determine with categorical certainty which claims to uphold or reject?

3. THE INTERPRETATION OF THE 1890 ANGLO-GERMAN TREATY BY THE ICJ

3.1. A Common Point of Departure: Ordinary Meaning Should be Given to the Terms of Treaty in Their Context and in the Light of its Object and Purpose

Construing Article 111(2) of the Anglo-German Treaty of 1890 was beset by interpretive ambiguities. The primary ambiguity before the court was whether the terms "center of the main channel," and the German term "thalweg," including its usage, were synonymous or different. However, even if thalweg or main channel were found to have a technical or scientific connotation in addition to their plain and ordinary meaning, neither pointed with certainty to either of the channels of the River Cho be. The traditional approach to treaty interpretation in international law is of strict grammatical and logical construction where there are doubts as to the construction to be given to the provisions of a treaty. 31 That approach is embodied in Article 31(1) of the Vienna Convention on the Law of Treaties, which provides further that a treaty must be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of that treaty in their context and in the light of its object and purpose. 32 Under Article 31(2) of the Vienna Convention on the Law of Treaties, preparatory work of a treaty can only serve as a supplementary means of 31

32

B. Jankovic, Public International Law 302 ( 1984); G. Haraszti, Extensive and Restrictive Treaty Interpretation, in Questions oflnternational Law 37 (1971). The strict grammatical and logical construction approach, involving identifying a rule and applying it, is in tension with an approach that takes context into account and as such a broad range of sources of international law - so that the relationship between law and policy is dealt with systematically and openly in the decision-making process. For a discussion see R. Higgins, Problems and Processes of International Law and How We Use Them, at 1-4 (1994). For an extensive analysis of how the Court's decision applied treaty interpretation principles in this case, see Section 5 infra. 23 May 1969, 1155 UNTS 331; 8 ILM 679 (1969). See the majority opinion, at para. 41, justifying its conclusions that the northern channel of the River Chobe "must be regarded as the main channel," in accordance with the ordinary meaning of the terms. See the majority's statement of the rule in para. 20 of its Judgment. See also J. Gathii, The Legal Status of the Doha Declaration on TRIPS and Public Health Under the Vienna Convention on the Law of Treaties, 15 Harvard Journal of Law and Technology (Spring 2002, forthcoming).

Geographical Hegelianism

85

interpretation. 33 Further, Article 31(3)(a) of the Vienna Convention authorizes any "agreement between the parties regarding the interpretation of treaty or the application of its provisions." 34 Article 31 (3)(b) authorizes "any subsequent practice [ ... ] which establishes the understanding of the parties regarding its interpretation," may be resorted to "where the ordinary meaning of the words used in a treaty is not sufficiently clear." 35 Even in a case such as this, where neither Namibia nor Botswana is a party to the Vienna Convention on the Law of Treaties, to the extent that Article 31 of the Vienna Convention on the Law of Treaties is customary international law, it is still applicable. 36 Both the majority opinion and the Dissenting Opinion of Justice Weeramantry predicate their analysis on this traditional approach. 37 What therefore makes this case interesting is that both the majority opinion and the Dissenting Opinion of Justice Weeramantry proceed from a fidelity to a common interpretive schema that traditionally guides the ICJ's decisionmaking in treaty interpretation. Justice Weeramantry's dissent is therefore not a departure from this traditional interpretive schema to the extent that it is constrained or governed by it. 38 In fact, Justice Weeramantry's dissent is copiously referenced with international legal authority to support its propositions as will be evidenced below. 39 33 34 35

36

Majority opinion, at paras. 20 and 46. See id., at paras. 47, 48, 49, 50, 63, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79 and 80. Justice Weeramantry's Dissenting Opinion, at para. 28. See also id., at para. 19. See the majority opinion, at paras. 47, 48, 49 and 50. In the majority's view, Art. I of the Special Agreement between Namibia and Botswana, reproduced at the beginning of the majority decision), expressly authorized the Court to refer to 'rules of and principles of international law,' in determining the dispute. Majority opinion, at para. 19. Similarly, the majority hold: In the Court's view the Special Agreement, in referring to the 'rules and principles of international law', not only authorizes the Court to interpret the 1890 Treaty in the light of those rules and principles but also to apply those rules and principles independently. The Court therefore considers that the Special Agreement does not preclude the Court from examining arguments relating to prescription put forward by Botswana,

37

id., at para. 93. See also id., at para. 48. This approach is in tension with an approach that takes context into account and as such a broad range of sources of international law - so that the relationship between law and policy is dealt with systematically and openly in the decision-making process. For a discussion see Higgins, supra note 31. See also T.O. Elias, where he argues that treaty interpretation 'is not an exact science but an art,' where three factors are pertinent:

(a) the text of the treaty expressing the agreement of the parties, (b) the intention of the parties, as a subjective element, and (c) the object and purpose of the treaty. While different writers and judges stress the one or the other of these factors as the basic principle of interpretation, it soon becomes clear that none of them is by itself sufficient to supply the solution to a dispute involving treaty interpretation, 38

39

T.O. Elias, The Modern Law of Treaties, at 72 ( 1974 ). S.L. Winter, The Next Century of Legal Thought, 22 Cardozo Law Review 747 (2001). According to Duncan Kennedy, legal interpretation proceeds both from text and "the argumentative tools that legal culture makes available to judges trying to generate the effect of legal necessity," D. Kennedy, A Critique of Adjudication: Fin de Siecle, at 797 (1997).

86

James Thuo Gathii

What distinguishes Justice Weeramantry's Dissenting Opinion from the majority opinion is the probative value it places on the evidence of use and occupation of the Masubian people of the island, relative to the probative value the majority places on evidence based on geographical/scientific, economic criteria. I therefore argue that the probative weight placed on different pieces of evidence in Justice Weeramantry's dissent and the majority, though all constrained and defined within this interpretive schema, arises from two divergent understandings of the historical role of international law with regard to the relationship between European and non-European subjectivity on the law of title to territory. 40 3.2. Analyzing the Difference in the Probative Value Placed on the Various Evidentiary Bases Before the Court

The word 'title' is generally not limited to documentary evidence alone, but comprehends 'both evidence which may establish the existence of a right, and the actual source of that right.' 41 To construe the intention of the parties under Article III(2) of the 1890 Anglo-German Treaty, the parties put before the Court four evidentiary bases: (a) geographical evidence supplemented with scientific knowledge; (b) economic evidence particularly the possibility of navigation for trade on the River Chobe; (c) correspondence, reports and maps as evidence of subsequent practice; (d) evidence of 'open and public' use and occupation of the island by the Masubian people. 42 There are two primary differences between the Court's Judgment and Justice Weeramantry's Dissenting Opinion. I address each in turn. First, the historical period associated with the evidence of most probative 40

Indeed, the training, skill and insight, and the choices she [a judge] makes [ ...] [determine] how[ ...] [she] allocate[s] her intellectual energies and resources. These choices must ultimately turn on political sensibilities and convictions that cannot be derived entirely from the legal materials, since it is often the case that the meaning and constraining power of the legal materials is unknown or uncertain without the intervention of legal work.

41

42

K. Klare, The Politics of Duncan Kennedy's Critique, 22 Cardozo Law Review 1087 (2001). ICJ in the Frontier Dispute (Burkina Faso/Republic of Mali), Judgment of 22 December 1986, 1986 ICJ Rep. 554, at 564, at para. 18; L. Henkin et al. (Eds.), International Law: Cases and Materials, 3rd Ed., at 334, para. 45 (1993). On the map evidence. See notes 48-54 and accompanying text; On evidence of 'open and public' use and occupation of the island by the Masubian, see notes 70-101 and accompanying text. On geographical evidence supplemented with scientific knowledge as well as on economic evidence particularly the possibility of navigation for trade on the River Chobe, see notes 117-138 and accompanying text. On correspondence and reports, see notes 17-26 and accompanying text.

Geographical Hegelianism

87

value that the Court's Judgment is based on as opposed to the Dissenting Opinion of Justice Weeramantry; and Second, the relative merits and demerits associated with each of the four evidentiary bases in the Court's Judgment and the Dissenting Opinion of Justice Weeramantry. 43 3.3. On the Historical Period Arising From the Majority's Choice of the Most Probative Evidence: The Myth of a Dark Continent Underlies the Majority Decision

Once the majority opinion lays out the strict grammatical and logical interpretive approach as the point of its departure in analyzing the evidence, it declares that "in order to illuminate the meaning of words agreed upon in 1890, there is nothing that prevents the Court from taking into account the present-day state of scientific knowledge." 44 The majority then proceeds from the premise that Article 31(3) of the Vienna Convention is the authority for taking into account subsequent practice (and as such the present day state of scientific knowledge) as an element in the interpretation of the 1890 Treaty. 45 Besides the interpretive authority of Article 31 ( 3) of the Vienna Convention, the majority makes the repeated assertion that ignorance about Africa in 1890 when the Anglo-German Treaty was entered into was the source of the underlying uncertainty regarding the intention of the parties. In this section of the review, I contrast the majority's reference to the state of present day scientific knowledge with its comments about uncertainty of where the disputed boundary lay in view of the ignorance about Africa when the treaty was entered into towards the end of the nineteenth century. I argue that this reference to the uncertain knowledge about Africa proceeds from an unacknowledged premise in the majority opinion: the myth of a dark continent. Take the following example, depicting this unacknowledged premise in the majority decision: The contracting powers, by opting for the words 'center of the main channel', intended to establish a boundary separating their spheres of influence even in the case of a river having more than one channel. They possessed only rudimentary information about the Chobe's channels. If they knew that such channels existed, their number, features, navigability [ ...] and their relative

43

44

45

That is confirmed by the observation in the majority opinion that the disagreement between the parties is "the consequences to be drawn from the facts in this case for purposes of the interpretation of the 1890 Treaty," see the majority opinion, at para. 51. Id., at para. 20. To support this proposition, the Court cites as authority the following case: Controversia sobre el recorrido de la traza See also the symposium issue in 16 American University International Law Review (2001). See Doha Declaration on the TRIPS Agreement and Public Health, adopted on 14th November 2001, WT/MIN(Ol)/Dec/2 Paragraph 4. The Doha round was preceded by massive global protests against the exorbitant costs of anti-HIV drugs charged by US and Swiss multinationals and led to a landmark suit in a South African Court. See Legality of the Threat or Use of Nuclear Weapons, I.CJ. Reports ( 1996) (especially the dissent by Justice Weeramantry). For a perceptive analysis of the role played by global civil society in making this case possible, see R.Falk, The Nuclear Weapons Advisory Opinion and the New Jurisprudence of Global Civil Society, in R. Falk (Ed.), Law in an Emerging Global Village 1998) at 165-188. See Business and Human Rights (Human Rights Watch, Human Rights Watch World Report 2001 (2001 ); Human Rights - is it any of your business? (Amnesty International UK Business Group, Prince of Wales Business Leaders Forum (2000). On soft law norms, see D. Shelton (Eds.), Commitment and Compliance: The Role of non-binding norms in the international legal system (2000 ). The Italian Prime Minister is reputed to have remarked in the aftermath of September 11 attacks that the protestors against the World Economic Forum in Genoa were also terrorists.

International Law and Third World Resistance

147

international law 9 as well as raise profound theoretical challenges to the international legal order as it presently stands. In the following five parts, I present the outlines of a broader project to think about international law through social movements rather than through states or individuals. 10 In Part II, I present some of the causes for the inability or unwillingness of international lawyers to engage with social movements, as well as some more recent literature that promises ways to overcome this tendency. In Part III, I frame the outline of a theory of politics for an international law that does take the resistance of Third World social movements seriously, and contrast the difference with traditional international law's approach to politics. I first introduce a series of conceptual tools from social movement literature and link them up with international legal debates, and show how thinking about international law through social movements is much more rewarding than through states (as realists/positivists do) or individuals (as liberals/naturalists do). The central purpose of my inquiry here is, how does one write this resistance into international law? I introduce the concept of 'cultural politics' here and suggest that international law must decenter itself from the unitary conception of the political sphere on which it is based, which takes the state or the individual as the principal political actor. In Part IV, I attempt to articulate some bases for a theory of resistance in international law drawing on the work of Michel Foucault, Antonio Gramsci, Frantz Fanon and Partha Chatterjee. Part V concludes the article.

2. INTERNATIONAL LAW AND SOCIAL MOVEMENTS: SEEING PAST EACH OTHER

Despite the fact that international relations is no stranger to mass action epochal twentieth century developments were after all catalyzed through mass action, whether it is nationalism, anticolonialism, Marxism, identity-based mobilizations or pro-democracy movements - international lawyers have not traditionally attempted to either interpret mass actions or to engage with the rich literature on social movements.11 International lawyers are traditionally interested in governance, not resistance. Domestic lawyers are not too far behind. By professional training, intellectual orientation, political and class alignment and tradition, lawyers focus on institutions of various kinds, whether governmental or private. As such, they tend to ask different sets of questions about social change and the role of law in it. For instance, in domestic law,

10

11

For a detailed argument to this effect, see B. Rajagopal, Locating the Third World in Cultural Geography, Third World Legal Studies (1998-99). The broader project is forthcoming as a book by Cambridge University Press in late 2002. For an anticipation of some of the broad themes and issues in the broader project, see B. Rajagopal, From Resistance to Renewal: The Third World, Social Movements And The Expansion Of International Institutions 41:2 Harvard International Law Journal 529 (2000). For a discussion, see infra section 3 and n. 39 for literature.

148

Balakrishnan Rajagopal

they examine the 'contribution' of courts to the civil rights movement in the US by studying landmark cases such as Brown v. Board of Education. 12 Such 'technical' or 'legal' discussions result in distilling the contribution of the masses out of historical transformations, and highlight the role played by judges and lawyers. In this rather clinical reduction of facts, the 'case' becomes the historical event itself, so that legal history is reduced to a cataloguing of factually abstracted episodes that bear little relation to each other. This traditional tendency in western domestic law to ignore the contribution of the masses is due to many reasons that are too complex to examine here, but I will highlight two that have relevance for international law: they are problems of sources and method.13 First, lawyers tend to have a juro-centric approach that focuses on the texts and languages emanating from public institutions such as the Parliament, courts, the International Court of Justice, United Nations or the World Trade Organization's Dispute Settlement Authority. In this approach, there is no space for 'texts of resistance': 14 that is, either informal or explicitly illegal interpretive acts by individuals and groups that do not share the interpretations of the law by institutions. In this way, the source of normative legitimacy and authority is always the statist institutions. This means, for example, that environmental lawyers are more concerned with the regulatory behavior of the state than with the rise of environmental consciousness or the mass action that may have led to the regulatory behavior of the state. This has the result of ignoring the social origins of legal rules and institutions, and therefore, the role of ordinary people in legal analysis. Second, the method of legal analysis is also focused entirely on the cogency and the internal logical structure of the language of the law. As such, the prescriptive stance of legal analysis is on figuring out the gaps, conflicts and ambiguities in the language of the law, even if to reveal the existence of ideology. 15 But merely revealing the structural flaws in legal reasoning does nothing to ground it in particular social and political contexts and makes the law look surprisingly static. 16 Besides, showing the internal incoherence of law may undermine the authority of law, but it does not indicate how it should be reformed. Incorporating the social dimensions of law in legal analysis - for example, reading the history of the sex discrimination doctrine in US constitutional law as something that arose from a larger women's suffrage movement

12

13

14

15

16

347 U.S. 483 (1954).

I owe the following analysis to Edward Rubin, Passing through the Door: Social Movements Literature and Legal Scholarship, 150 University of Pennsylvania Law Review (2001) at 54-55. I am borrowing this term from R.M. Cover, The Supreme Court, 1982 Term: Forward: Nomos and Narrative, 97 Harvard Law Review ( 1983) at 45-50. This is a classic stance adopted by Critical Legal Studies scholars. See e.g., Duncan Kennedy, A Critique of Adjudication ( 1997), chapter 3. As the title indicates, it is adjudication and not

regulation that is critiqued. For a recent acknowledgement from a leading critical scholar, see M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960, page 2 (2002).

International Law and Third World Resistance

149

rather than the 14th amendment 17 - has vast consequences for legal reasoning, broader social reform and the role that law plays in it. In international law, it leads to a mode of legal analysis that pays much more attention to the consequences of particular legal rules and doctrines on those who do not have voice and power in the legal system 18 and importantly, does not shy away from acknowledging the need to reinterpret international law in their interests. The tendency in western domestic law to ignore the contribution of the masses has been subjected to criticism from at least two directions in recent years. First, in the US, a group of critical race theorists, feminists, and gaylesbian-queer theorists, have subjected this decontextualized, technocratic-rational model of law and legal history to criticism on the ground that it ignores the role that law plays in everyday life and empowerment, and also the role played by ordinary people as agents of legal transformation. 19 To them, the liberal legal model that has remained dominant in the US so far, is fatally flawed due to this, among other, blind spots, and needs to be fundamentally rethought. Nevertheless, though some of these writings allude to social movements, they do not explicitly engage with social movement literature. 20 These draw inspiration, inter alia, from the legal theoretical work of Robert Cover, positing the notion of "interpretive communities" 21 that create law and give it meaning through their own lived action. Second, a small number of socio-legal theorists and comparativists from the US and Europe, and several constitutional scholars from non-western countries, have engaged in important critiques of liberal theories of rights, justice and 17

18

19

20

21

R. Siegal, She The People: The Nineteenth Amendment, Sex Equality, Federalism, And The Family, 115 Harvard Law Review 947 (February 2002). The jurisprudence of Justice C.G. Weeramantry, stands out as a shining example. See in particular, his dissent in the Legality of the Threat or Use of Nuclear Weapons, l.C.J. Reports ( 1996). For examples of critical race scholarship, see P. Williams, The Alchemy of Race and Rights (1991); K. Williams Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Anti-discrimination Law, 101 Harvard Law Review 1331 (1988); K. Crenshaw, Neil Gotanda, Gary Peller and Kendall Thomas (Eds.), Critical Race Theory: The Key Writings that formed the Movement ( 1995). Examples of feminist legal scholarship include A. Scales, The Emergence of a Feminist Jurisprudence: An Essay, 95 Yale Law Journal 1373 (1986); R. West, Jurisprudence and Gender, 55 University of Chicago Law Review 1 (1988); C.A. MacKinnon, Toward a Feminist Theory of the State (1989); M. Minow, Making all the Difference: Inclusion, Exclusion and American Law ( 1990); K. Bartlett, Feminist Legal Methods, 103 Harvard Law Review 829 (1990). For recent gay-lesbian-queer legal scholarship, see K. Thomas, Beyond the Privacy Principle, 92 Columbia Law Review (1992); W. Eskridge Jr., Gaylaw: Challenging the Apartheid of the Closet (1999); J. Halley, "Gay Rights and Identity Imitation: Issues in the Ethics of Representation" in D. Kairys (Ed.), The Politics of Law: A Progressive Critique (1998). Though critical scholarship has not directly engaged with it so far, some recent developments indicate an increasing interest in social movement literature. The LatCrit conference for the year 2002 has taken social movements as its main theme and the University of Pennsylvania Law Review has recently done a symposium issue on Social Movements and Law Reform. See 150 University of Pennsylvania Law Review (2001). See R.M. Cover, The Supreme Court, 1982 Term: Forward: Nomos and Narrative, supra note13 at 40.

150

Balakrishnan Rajagopal

democracy, sometimes by engaging with social movements literature. This includes the works of Joel Handler on civil rights, welfare and other movements in the US; 22 Austin Sarat on identity and rights and cause lawyering; 23 Jurgen Habermas on social movements, democracy and rights; 24 Alan Hunt and Neil Stammers on human rights; 25 Sousa Santos on legal theory and human rights; 26 Upendra Baxi on democracy, rights and justice27 - and more recently, Diane Otto on human rights and postcolonial theory; 28 and Julie Mertus on transnational civil society. 29 These critiques have pointed out the elitist bias of extant rights theories and conceptions of democracy and have attempted to formulate general conceptions of law that would accommodate the role of subaltern communities and individuals. A central aspect of these two streams of literature has been the interrogation of the role that law plays in regulating power in everyday life, and in turn, the impact of everyday practices on the law itself. 30 This study of the dynamic between the institutional and extra-institutional aspects of social life, and the importance of extra-institutional mobilization for the success/failure of institutions, has injected new elements into an understanding of law. Indeed, one of the main distinguishing characteristics of the social movements literature has been this emphasis on the interconnectedness between everyday forms of power struggle and institutional politics, including at the national and global levels. 31 To put it differently, a social movement perspective emphasizes the importance of extra-institutional forms of mobilization for the 'success' or 'failure' of

22

23

24

25

26

27

28

29

30

31

See J. Handler, Social Movements and the Legal System: A Theory of Law Reform and Social Change (1978). See A. Sarat and T. Kearns (Eds.), Identities, Politics and Rights ( 1995); and A. Sarat and S. Scheingold (Eds.), Cause Lawyering (1998). Juergen Habermas, Between Facts and Norms (1996); J.Habermas, New Social Movements Telos 49 (1981) at 33-37. See A. Hunt, Rights and Social Movements: Counter-hegemonic Strategies, 17:3 Journal of Law and Society (1990) at 309-328 and N. Stammers, A Critique of Social Approaches to Human Rights 17 Human Rights Quarterly 488 (1995). See Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition ( 1995). See U. Baxi, "Taking Suffering Seriously: Social Action litigation before the Supreme Court of India" in R.Dhawan et al (Eds.), Judges and Judicial Power ( 1985); Voices of suffering and the Future of Human Rights" 8 Transnational Law and Contemporary Problems 125 ( 1998); 0. Mendelsohn and U. Baxi (Eds.) The Rights of Subordinated Peoples (1994). See D. Otto, Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference, 5 Social and Legal Studies 337 (1996) and Rethinking The "Universality" Of Human Rights Law, 29 Columbia Human Rights Law Review 1 ( 1997). Julie Mertus, From Legal Transplants to Transformative Justice: Human Rights and the Promise of Transnational Civil Society" 14 American University International Law Review 1335 (1999). This is the understanding of power that Michel Foucault has put forward, that power is not confined to the institutional, political arenas, but 'circulates' through all spheres of life as a relational phenomenon. See M. Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972-77 ( 1980). See, e.g., Richard Falk, supra note!.

International Law and Third World Resistance

151

institutional forms. 32 In this sense, these extra-institutional forms of mobilization constitute important arenas of resistance that remain beyond the cognitive boundaries of international law's sole, approved discourse of resistance, viz., human rights. However, very little of this has yet percolated international law, despite recent scholarship in international relations that takes social movements seriously. 33 International law remains trapped in a version of politics that is narrowly focused on institutional practice, and an understanding of the 'social' that takes the unity of the agent as given. This has given international law an artificially narrow outlook. Many leading scholars are aware of this, and have attempted to construct a broader approach to international law, mainly by identifying non-state actors as 'international' actors, 34 and by arguing for a right to personal identity that would allow international law to accommodate the plurality of social agents (on the basis of class, gender, race, ethnie and so

32

33

34

This is what Claus Offe calls "noninstitutional politics'', and Rajni Kothari calls it "non-party political formations". See C. O.ffe, New Social Movements: Challenging the Boundaries of Institutional Politics, 52 Social Research ( 1985) and R. Kothari, Masses, Classes and the State in P. Wignaraja (Ed.), New Social Movements in the South (1993). See for example K. Sikkink and M. Keck, Activists beyond Borders: Advocacy Networks in International Politics ( 1998); J. Smith, C. Chatfield and R. Pugnucco (Eds.), Transnational Social Movements and Global Politics: Solidarity Beyond the State ( 1997); R. O'Brien et al, Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements (2000); R. Burbach et al., Globalization And Its Discontents: The Rise Of Postmodern Socialisms ( 1997); P. Ghils, International Civil Society: International NonGovernmental Organizations in the International System, 44 International Social Science Journal 417 (1992); Ronnie D. Lipschutz, Reconstructing World Politics: The Emergence of Global Civil Society, 21 Millennium: Journal of International Studies 389 (1992); Martin Shaw, Global Society and Global Responsibility: The Theoretical, Historical, and Political Limits of 'International Society', 21 Millenium: Journal of International Studies 421 (1992); Kathryn Sikkink, Human Rights, Principled Issue-Networks and Sovereignty in Latin America, 47 International Organization 411 (1993); Peter J. Spiro, New Global Communities: Nongovernmental Organizations in International Decision-Making Institutions, 18 The Washington Quarterly 45 (1995); and Paul Wapner, Environmental Activism and Global Civil Society, 41 Dissent 389 ( 1994 ). This has a rich pedigree in international law. The first wave of scholarship argued for the recognition of international institutions, and MNCs as legal actors. See Percy Corbett, What is the League of Nations, in British Yearbook of International Law (1924) at 119-148; Wilfred Jenks, The Common Law of Mankind (1958); Wolfgang Friedmann, The Changing Structure oflnternational Law (1964); Philip Jessup, Transnational Law (1956). A second wave argued for recognition of individuals, peoples and liberation movements as legal actors. Hersch Lauterpacht, International Law and Human Rights (1950); Louis Sohn, The New International Law: Protection of the Rights of Individuals Rather than States, 32 American University Law Review 1 (1982); Christopher Quaye, Liberation Struggles in International Law (1991). A third wave has now been arguing for recognition of NGOs as international legal actors. Peter Spiro, Id., Steve Charnovitz, Two Centuries Of Participation: NGOs And International Governance, 18 Michigan J. of Int. Law 183 (1997). Richard Falk has been calling for a post-Westphalian world order based on the emergence of a 'globalization from below'. See R. Falk, Law in an Emerging Global Village (1998).

152

Balakrishnan Rajagopal

on). 35 Despite this, much of what happens in the extra-institutional spaces in the Third World remains invisible to international law. Indeed, it is partly due to the limitations of the liberal categories such as rights, employed to represent social movements that such blind spots continue to exist. While this argument can not be pursued here due to lack of space, it is important to acknowledge that international law has a hard time acknowledging the role of mass action due to its institutionalist bias and jurocentrism, while simultaneously suffering from elitism. Given that most Third World social movements consist of urban poor, peasants, workers in the informal sector, illiterate man and women, and indigenous peoples whose resources are being destroyed, the elitist categories that are used to represent 'voices' of suffering, 36 such as the category "human rights", tend to have inevitable blind spots. 3. RETHINKING THE POLITICAL IN INTERNATIONAL LAW: BEYOND REALISM AND LIBERALISM

Let me begin by providing a contextual introduction to the theoretical challenges that arise when we adopt a social movement perspective towards international law. The current interest in social movements must be traced to the historical context in which forms of popular mobilizations began to transform the Third World. During the 1950s and 1960s, the principal forms of popular mobilizations in the Third World were organized around the 'nation', aimed mainly at national liberation from colonial rule, and around "class", aiming at structural transformation of the colonial/comprador economic and social orders within Third World countries. This mass radicalism lay behind the elite Third World radicalism evinced by calls for the NIEO. This was accompanied and followed by large public mobilizations in Western countries such as the civil rights; black nationalist; women's rights and gay and lesbian rights movements in the US; the green movement in West Germany; and the 1968 student protests in France. However, by the early 1970s, after the engineered 'fall' of Allende in Chile; the splintering of the Third World coalition in the mid-1970s; the containment of nationalist and class movements by the two Super Powers; and the genuine grassroots disillusionment with the violence of the nationbuilding project in many Third World countries, new forms of popular mobilization began to emerge, based on new forms of domination and exploitation (such as the exploitation of migrant labor, urban squatters, and women). Though these forms of mass mobilization were beginning to transform the political, economic and social landscape of many Third World countries, they could not be analyzed within the Marxist paradigm, which had for several decades provided the tools for interpreting radical social change in the Third 35

36

See T. Franck, Clan and Super Clan: Loyalty, Identity and Community in Law and Practice, 90

American J. of International Law 359 ( 1996). See Upendra Baxi, supra note 27.

International Law and Third World Resistance

153

World. The literature on social movements emerged largely as a response to these new forms of mobilizations, even as it attempted to explain the exhaustion of left ideology. This explains the attempt to distinguish the new forms of popular mobilizations as 'new social movements' (based on identity politics) from presumably 'old' social movements such as national liberation movements or the class-based movements. By the end of the 1990s, identity-based movements had themselves run out of steam and come under severe questioning from, among others, post-Marxists. 37 This followed the discovery that the 'move to markets' in development policy in early 1990s conveniently coincided with the move away from class to identity. The whole spectrum of literature that discusses the above political and social developments is what I refer to broadly as social movements literature. This literature is complex, varied and spread across several disciplines including sociology, comparative politics, anthropology and critical development studies. 38 This literature contains a multitude of views about what constitutes a social movement, and what distinguishes a 'new' from an 'old' movement. To take one example, Mario Diani identifies the following general elements in a social movement: 1) they involve networks of informal interactions between a plurality of actors; 2) they are engaged in political or cultural conflicts; 3) they organize on the basis of shared beliefs and collective identities. 39 This definition raises several important issues. First, there is the issue of what causes a movement to mobilize more successfully than another - that is, what kinds of networks of interaction are necessary for converting popular discontent or sporadic disaffection into a viable movement. A general answer that is provided is that 'social movement organization' or NGOs provide the glue to the coordination of actors with multiple motives to join the movement. 40 This does not mean that NGOs lead social movements 41 or that they themselves constitute social 37

38

39 40

41

It is important to recognize that in social sciences, the debate about the newness of the 'new' social movements is by now sterile and ignored. See e.g., David Plotke, Whats so new about new Social Movements? 20 Socialist Review (1990) at 81-102. For recent works on social movements, see Sonia E. Alvarez et al, Cultures of Politics/Politics of Cultures: Re-visioning Latin American Social Movements(1998); Klaus Eder, The New Politics of Class: Social Movements and Cultural Dynamics in Advanced Society (1993); A. Escobar & S.E. Alvarez (Eds.), The Making of Social Movements in Latin America ( 1992); P. Wignaraja (Ed.), New Social Movements in the South (1993); D. Slater (Ed.), New Social Movements and the State in Latin America (1985); A. Oberschall, Social Movements: Ideologies, Interests and Identities (1993); G. Omvedt, Reinventing Revolution: New Social Movements and the Socialist Tradition in India (1993); S.G. Tarrow, Power in Movement: Social Movements, Collective Action and Politics (1994); A. Touraine, Return of the Actor: Social Theory in Post Industrial Society (1988); A. Basu (Ed.), The Challenge of Local Feminisms (1995); R. Guba, The Unquiet Woods: Ecological Change and Peasant Resistance in the Himalayas (1989). M. Diani, The Concept of Social Movement, 40 The Sociological Review 1 ( 1992). S. Tarrow, supra note 38 at 15 and S. Tarrow, Power in Movement: Social Movements, Collective Action, and Politics ( 1994) at 15. As Tarrow asserts, a "bimodal relationship between leaders and followers ... is absent from movements". Id.

154

Balakrishnan Rajagopal

movements. 42 Amnesty International is not a social movement, but may form a part of particular social movements in particular locations, to abolish capital punishment, for example. This basic insight is often lost in most international law and some international relations scholarship that confuses social movements with NGOs 43 or conflates NGOs with civil society.44 One major reason for this is, as noted in Part 2, the institutionalist bias in legal scholarship, which compels it to take note of mass action only when it is institutionalized by being registered as an NGO. While lack of institutionalization is an Achilles heel of social movements - as once noted by Eric Hobsbawm - legal scholarship misses much of social reality when it focuses only on institutions. Second, the plurality of actors in social movements include organizations, groups of individuals and individuals all of whom may have different motivations for joining such social movements. The 'anti-globalization' movement recently witnessed in Washington, DC - is an example of this plurality: it contains Western labor activists worried about loss of jobs but also unions who push for protectionism; environmental activists concerned about the ecodamage of global business practices but also anarchists who throw bombs on Starbucks; human rights activists who worry about the unaccountability of corporations and international organizations but also governments who exploit these fears to promote geopolitical interests; Third World social movements for whom the struggle against globalization is a struggle to live, and a number of other hangers-on who do not have any immediate stake but who just like to be part of the show. Exploring and understanding these different motivations is crucial to a proper appreciation of how international legal norms and processes work in practice. Third, the notion of conflict is understood, as Diani notes, in different ways by different scholars. 45 Some view conflict as primarily an interpersonal and cultural one, 46 while others view it as one directed towards economic and political change. 47 In the context of the Third World, most social movements emerge through a conflict with capitalist development. Adam Barry points out: to ignore the dynamics of capitalist development, the role of the labor markets in reorganizing spatial and familial relations, and the interaction of 42

43 44

45 46

47

Diani, supra note 39 at 13-14. See also W. Fisher, Doing Good? The Politics and Antipolitics of NGOs Practices, 26 Annual Review of Anthropology 436-64 ( 1997). See e.g., Peter Spiro, supra note33. See e.g., Steve Charnovitz, supra note 34. Diani, supra note 39 at 13-14. See also W. Fisher, Doing Good? The Politics and antipolitics of NGOs Practices, 26 Annual Review of Anthropology 436-64 (1997). See A. Melucci, Nomads of the Present: Social Movements and Individual Needs in Contemporary Society (1989). Sidney Tarrow theorizes that movements respond to political opportunity and advance their causes through direct confrontation with formal political spheres. See Tarrow, supra note 38 at 18. Post-Marxists emphasize how movements emerge through their on-going struggles with the state and capital. See Barry Adam, Post-Marxism and the New Social Movements, 30:3 Canadian Review of Sociology & Anthropology 317. (1993).

International Law and Third World Resistance

155

new and traditional categories of people with dis/employment patterns is to ignore the structural prerequisites which have made the new social movements not only possible, but predictable. 48 The literature also points out that how a conflict plays out - the strategies used, the means deployed and shunned, and simply what gets counted as 'political' - will depend on each society's own historical methods of protest what Tarrow calls 'contention by convention'. 49 This calls for a very contextual understanding of resistance, unlike the totalizing category of rights, which presumes that resistance is expressed only in the secular, rational and bureaucratic arenas of the modern state, especially through the judiciary. Thus, Parisians build barricades 50 and Indians stage dharnas and satyagrahas. 'Political culture' as a concept is critical for understanding what gets counted as 'political' when conflicts arise in particular societies. Instead, international law (and law in general) reduce complex conflicts in non-western societies to the "rationalist, universalist and individualist" political culture of the west. 51 The final element of Diani's definition is that movements organize on the basis of shared beliefs and collective identities. This raises the issue of how such identities get formed in the first place. Some suggest that a 'consensus mobilization' is an on-going part of a movement's formation, 52 while others acknowledge that irreconcilable differences lead to a "process of realignment and negotiation between actors". 53 To me, it appears that both these processes occur in many social movements, often simultaneously. As gaps between different actors widen and consensus eludes them, realignment of identities begin to occur. This process is wholly different from the 'right to identity' approach adopted by international law, which looks at identity as merely an individual choice. 3.1. Beyond Liberalism and Marxism: Towards a Cultural Politics It then goes without saying that the new forms of mobilization in the Third

World could not be analyzed using liberal categories such as rights. First, liberal theory assumed a sharp distinction between public and private, privileging only that which belonged to the public sphere for legal protection. As the feminist slogan "personal is political" vividly showed, this simply failed to take account of relations of power in the domestic or private arenas. This was based on a sharply delimited arena of the 'political', which has been shown by feminists among others, as inadequate. 54 Second, liberal theory assumed all 48

49 50 51

52 53 54

Barry Adam, Id., at 322. Sidney Tarrow, supra note 38 at 18. Id., at 19. See Chantal Mouffe, The Return of the Political (1993) at 2. Sidney Tarrow, supra note 38 at 22-23. Diani, supra note 39 at 9. See J.Oloka-Onyango and Sylvia Tamale, The Personal is Political" or Why Womens Rights are indeed Human rights: An African Perspective on International Feminism 17 Human Rights

156

Balakrishnan Rajagopal

legitimate power to be united in a 'sovereign will' and all political activity to be conducted through institutional arenas such as legislatures and through institutions such as political parties. This was revealed in the experience of Third World mass movements to be disciplinary (as it ruled out other arenas of doing politics) and promoting a corrupt version of etatism. European social theorists, especially Jurguen Habermas, Alain Touraine, Claus Offe and Alberto Melucci, had criticized this liberal tendency to unify the political space. Habermas in particular, had theorized about new social movements, drawing on the experience of German Green movements, and postulated the idea of the "public sphere" where he argued, opinion formation takes place, prior to will formation in the sanctioned political arenas. 55 This "public sphere" has been a useful tool for conceptualizing social movements. Third, liberal theory assumed the unity of the social actor (as a consumer, producer, citizen etc) and created formal arenas where the interests of such social actors would be represented. The praxis of social movements in the Third World shows that the heterogeneity and plurality of the social actor is an essential feature of mass mobilization, which the representational model can not accommodate without doing violence to its heterogeneous character. Fourth, liberal theory assumed a harmonious view towards economic growth, as it assumed that the post World War welfare state would shoulder the responsibility of humanizing it. This was based on the Weberian understanding that the contradictions created by the institutions of civil society - property, market, the family and so on - would be 'neutrally' resolved by the state. Instead of achieving this result, the state simply colonized civil society and indeed, all life spaces. This was particularly true in Latin America and Asia, which followed state-led industrialization as part of an import substitution strategy. Social movements in the Third World have arisen then partly as an attempt to liberate these life spaces from the state, and partly to politicize the very institutions of civil society so that it is no longer dependent upon ever more regulation and control. How did Marxist theory figure in this? After all, Marxism had provided the theoretical tools for analyzing the social conflicts in the Third World for almost half a century. The short answer simply is, as I have suggested, social movements in the Third World emerged substantially as a response to the failure of Marxism as a liberatory discourse. This was due to many factors. First, Marxism assumed the identity of social agents (peasant, labor, etc) through fixed social structures that privileged some categories over others (for example, the proletariat as the vanguard). This meant for example, that a struggle that lacks a 'real' class basis - 'bourgeois feminism' or 'kulak farmers' - could not

55

Quarterly 691 ( 1995); Celina Romany, Women as Aliens: A Feminist Critique of the Public/Private Distinction in International Human Rights Law, 6 Harvard Human Rights Journal 87 (1993); and Frances Olson, Constitutional Law: Feminist Critiques of the Public/Private Distinction, 10 Constitutional Commentary 311 (1993). Admittedly, Habermas' theory is entirely domestically focused and not on international politics. But, his theory has been influential in thinking about civil society in democratic transitions and besides, it offers a model for thinking about global civil society.

International Law and Third World Resistance

157

be comprehended. Due to this Marxism was fast becoming irrelevant to the most important social struggles in the Third World that were organized around environmental degradation, oppression of women, and dispossession of labor and assets from farmers. Second, Marxism was wedded to an evolutionary view of society and therefore tended to interpret all social struggles in terms of a move from feudalism to capitalism, for example. In addition to being rigid and essentialistic, this historical determinism missed the real nature of many Third World social movements, which combined struggles over material aspects (economic struggle) with struggles over symbolic meanings (cultural struggle). In addition, this evolutionary view bordered on ethnocentrism as it automatically assumed the superiority of specific forms of western modernity over non-western tradition. This was rejected by several social movements in the Third World such as the Zapatistas, who organized around a particularly strong cultural identity. Third, Marxism shared with liberal theory, the understanding of a unified political space and by consequence, the state as the main agent of social and economic change. Consequently, the purpose of mass mobilization, it was theorized, was the capture of state power. This was reinforced by the etatism of Third World development models in the post World War II period such as import-substitution and export-promotion. Social movements on the other hand, reject the state as the main agent of socio-political transformation and do not seek state power as an end in itself. Instead, they seek to recover their own political space in which they can set the pace and direction of economic change. Fourth, with globalization, Marxism began to get out of touch with the new forms of economic arrangements and new forms of struggles that accompanied them, not only in advanced industrial societies, but also in the Third World. These new economies, revealed most clearly by the emergence of foreign direct investment, trade and capital markets, began to show that the sphere of capital accumulation and its processes were wider than those of commodity production and exchange. It was wider in at least two ways: first, capital accumulation was increasingly on a global scale, whereas commodity production had been theorized within the boundaries of the nation-state; second, capital accumulation was beginning to include substantial amounts of labor (domestic labor, informal immigrant labor in low-wage apparel industries) and wealth (nature itself) that were not included in commodity production and exchange. In short, there was a global economy in the making. Marxism was simply unable to supply the theoretical tools to comprehend and respond to it. The social movements that emerged in the Third World emerged largely as a response to the new, harsh forms of global economy. Indigenous peoples movements, fishworkers' movements, farmers movements, and 'anti-globalization' protests are then a result of the failure of Marxism as a coherent left doctrine. I'll suggest, following Gail Omvedt, 56 that what is needed is a historical materialism 56

Gail Omvedt, supra note 38 at xvi.

158

Balakrishnan Rajagopal

of all groups adversely affected by the new global economy (I do not discuss this more here). Social movements arise, then, as a challenge to liberalism and Marxism, and therefore by extension, of extant theories of international law. These theories extend from the utopian (liberal/western/naturalist) to the apologist (Marxist/Third Worldist/positivist/Realist). 57 The utopians imagine a world without sovereignty (but not necessarily without the state) in which the individual is the primary political actor. The apologists on the other hand, take the political community of the nation-state as the primary political actor and seek to imagine an international legal order that is at the same time created and constrained by their sovereignty. Social movements reverse both these ways of imagining an international order: they seek to preserve the autonomy implied in the positivist vision, but by abandoning the nation-state as the collectivity that would guarantee such autonomy; they also share the naturalists' deep suspicion of the leviathan, but allow a multiplicity of arenas including the community (rather than the individual alone) as political actors. Instead of the unified political space allowed by these extant theories, social movements seek the redefine the very boundaries what is properly 'political'. Indeed, all social movements enact a unique form of politics that I would label "cultural politics". By saying this, I do not mean to privilege those movements that are more clearly cultural as 'authentic'. In the past, this resulted in a false dichotomy between 'new' and 'old' social movements: the former based on identity and new forms of politics (such as human rights, gay, environment etc) while the latter movements struggled for resources and needs to cope with the contradictions of the capitalist economy (such as urban squatters', peasant and fishworkers' movements). Rather, for all these movements identities are strongly associated with survival strategies. This gives rise to a much richer, contextual and relational form of politics. As an important recent collection of essays put it, We interpret cultural politics as the process enacted when sets of social actors shaped by, and embodying, different cultural meanings and practices come into conflict with each other ... Culture is political because meanings are constitutive of processes that, implicitly or explicitly, seek to redefine social power. That is, when movements deploy alternative conceptions of women, nature, race, economy, democracy, or citizenship that unsettle dominant cultural meanings, they enact a cultural politics. 58 This definition makes it clear that politics is much more than a set of actions taken in formal political arenas (such as legislatures); rather, it is a decentered phenomenon that encompasses power struggles, which are enacted in the private, social, economic and cultural arenas in addition to the formal arenas. 57

58

I borrow the apology v.utopia contrast from Martti Koskenniemi's path-breaking book, From Apology to Utopia: The Structure of International Legal Argument (1989). Sonia Alvarez, et al, Cultures of Politics/Politics of Cultures (1998) at 7.

International Law and Third World Resistance

159

By challenging and resignifying what counts as political and who gets to define what's political, social movements foster alternative conceptions of the political itself. To illustrate more clearly what this rich, relational definition of the 'political' means for international law, let me outline its elements: politics goes beyond what we do in formal arenas, and therefore beyond formal voting rights and representation. However, human rights law and mainstream political science continue to focus on what happens in the formal institutions to the exclusion of non-institutional mobilizations. For example, a leading democracy theorist states that political institutionalization is "the single most important and urgent factor in the consolidation of democracy". 59 This narrow outlook governs several areas of international law including peacekeeping and peacebuilding, international economic law, good governance, and humanitarian interventions to save "failed states". 2. Struggles over meanings and values in the domain of culture are also political. The personal is finally political. This reverses a bias against culture, that international law has historically exhibited. 3. Political struggles are relational; they are not individual. This abandons the 'billiard ball' model of politics that has governed liberal rights theory and realist international legal theory. To resignify alternative conceptions of the body or the woman, one needs to look at the way groups and communities mobilize in concrete circumstances. 4. Conflict is at the heart of politics. This element, which is borrowed from Marxism, reverses the liberal theory's presumption in favor of harmony between social classes (and a resultant covering up of underlying conflicts). These conflicts, which arise at both the material and symbolic levels, are not between nation-states, but between classes. This element lends a much needed left-oriented perspective to counter the pro-corporate bias of international law. 5. By positing a cultural politics, social movements effectively foster alternative modernities. As Fernando Calderon puts it, some movements pose the question of how to be both modern and different: 60 by mobilizing meanings that can not be defined within standard paradigms of western modernity, they challenge international law's authority to pronounce on what is modern and traditional. 6. Finally, identities do not result merely from individual choice, but from relational activities among a group of people who come together to achieve a common purpose in the form of a movement. In this sense, the 'rights' 1.

59

6

°

See L. Diamond and M.F. Plattner (Ed.), Capitalism, Socialism, and Democracy Revisited (1993). Fernando Calderon, quoted in Sonia Alvarez, supra note 58 at 9.

160

Balakrishnan Rajagopal

to identity are inherently relational. 61 This is entirely foreign to both the utopian and apologist approaches to international law. It may then appear that the praxis of social movements centrally challenge the very foundations of international law, and provide a more realistic and hopeful way of imagining a post-Westphalian order, as Richard Falk has called it. Instead of the universal categories of sovereignty and rights, social movements offer a pluriversal defense of local communities. In doing that, they reveal the limitations of a Kantian liberal world order based primarily on individual autonomy and rights, and a realist world order based primarily on state sovereignty.

4.

RESISTANCE AS AN ANALYTICAL CATEGORY IN INTERNATIONAL LAW

Traditional international law did not concern itself with mass action unless it was directed at the creation of states in the form of movements that asserted the right to self-determination. Even in such cases, international law usually left the murky terrain and 'returned' only to welcome the victor as the legitimate representative of state sovereignty. 62 This doctrinal position enabled European and American colonial empires to defeat the legal claims of Third World anticolonial nationalist movements for independence under international law. No matter how much 'resistance' the natives posed - for example the Mau Mau rebellion in British Kenya - international law had no vocabulary for understanding and accommodating it. This enabled the colonial authorities to treat anticolonial resistance as criminal acts and deal with them through law enforcement measures, especially through the doctrine of emergency. Indeed, traditional international law was notorious for the ease with which it sanctioned violence against non-western peoples. As Antony Anghie has emphasized so eloquently about 19th century positivism, The violence of positivist language in relation to non-European peoples is hard to overlook. Positivists developed an elaborate vocabulary for denigrating these peoples, presenting them as suitable objects for conquest, and 61

62

Recent rights and property scholarship in North America has moved to articulate a social relations approach. See e.g., J. Nedelsky, Reconceiving Rights as Relationship, 1 Review of Constitutional Studies 1 ( 1993 ); J. Singer, The Reliance Interest In Property, 40 Stanford Law Review 611 (1988); J. Singer & J. Beerman, The Social Origins of Property, 6 Canadian Journal of Law and Jurisprudence 217 (1993); and J. Singer, Entitlement: The paradoxes of property (2000). See Aalands Islands Case, League of Nations O.J. Supp. No. 3, 6 (1920) (stating that when a state undergoes transformation of dissolution, its legal status is uncertain). For a trenchant critique of this case and self-determination doctrine, see N. Berman, Sovereignty in Abeyance: Self-determination and International Law, 7 Wisconsin International Law Journal 51 (1988). See also B.Rajagopal and Anthony Carroll, The Case for the Independent Statehood of Somali/and, 8 American University Journal of International Law and Policy 653 (Spring 1992) at 666-674.

International Law and Third World Resistance

161

legitimizing the most extreme violence against them, all in the furtherance of the civilizing mission-the discharge of the white man's burden. 63 The hope that formal political independence for the colonized territories will quickly lead to the creation of a new international law was dashed as the efforts by the newly-independent countries to create a New International Economic Order in the 1970s was subverted and ground to a halt. 64 During the last couple of decades, it has become increasingly hard to place much hope in the capacity of Third World States to act as real guarantors of the democratic aspirations of the masses in the Third World, as state sovereignty has been parceled out up (to international institutions such as the WTO and Bretton Woods institutions) and down (to market actors and NGOs). The idea of development, with its catching-up rationale, that provided the motivation for nation-building in the post-War period, has come to be seen as an ideological enterprise with profoundly dangerous implications for the most vulnerable and voiceless in society. In addition, the Third World State has come to colonize all life spaces in civil society and has effectively championed the interests of the global elite that runs the world economy. The democratic deficit experienced by global governance processes has been exacerbated due to the democratic deficit of some Third World States that act as the agents of the globalitarian class. The reformist sensibility in international law during the post-War period, which revolved around a commitment to individual human rights, and an expanded concept of international development including the law of 'welfare, also failed to reverse the rot in the system. While the causes for this are too complex to examine here, 65 it can be noted that the idea of human rights has proved to be too western, disciplinary and antipolitical, while the idea of development proved to be associated with the containment of mass resistance (especially anti-communist peasant) and a destructive modernity. The postwar 'settlement' of the colonial question through the grant of political sovereignty did not end mass movements in the Third World. Instead, this resistance took myriad other forms through social movement action that have not been sufficiently understood by international lawyers, partly due to the disciplinary limitations discussed above. It is now becoming obvious that Third World 63

64

65

See A. Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law, 40 Harvard International Law Journal 1 (1999). This took the form of a number of UN General Assembly resolutions and declarations, whose legal status was contested by western international lawyers. See the Charter of Economic Rights and Duties of States G.A.Res. 3281, 29 GAOR, Supp.30, U.N.Doc. A/9030 at 50 (1974)' Declaration on the Establishment of a New International economic Order, G.A.Res. 3201, Sixth Spec.Sess. GAOR, Supp.l, U.N.Doc. A/9559 (1974). On the NIEO, see M. Bedjaoui. Towards a New International Economic Order (1977). For a detailed examination of the encounter between post-War international lawyers's new sensibility to reconstruct international law and the emergence of a new discourse of development to bring growth and reduce poverty in the Third World, see B. Rajagopal, International Law and the Development Encounter: Violence and Resistance at the Margins, American Society of International Law 92nd Annual Proceedings (1999).

162

Balakrishnan Rajagopal

social movements represent the cutting edge of resistance in the Third World to antidemocratic and destructive development. It is important for international lawyers to try to develop a theory of resistance that would enable them to at least partially respond to it. What are the possible ways in which such a theory of resistance can be articulated in international law? We can start with the elements of the new notion of cultural politics outlined in the previous section. If politics goes beyond what we do in representative arenas and encompasses civil society, if struggles over symbolic values and meanings matter as much as those over resources, if political struggles and identities are inherently relational, if conflict is central to politics, and if alternative modernities can be fostered by alternative conceptions of the political, then a theory of resistance must begin by problematizing many elements of the existing theories of international law and relations. It must abandon the fetishism of the state and the ideology of development. It must develop a more flexible and dynamic conception of the dialectic between institutions and extra-institutional mass action. It must pay diligent and honest attention to the social origin of the rules of international law. It must pay much closer attention to the actual working out of norms and institutions by studying the everyday form of power struggles in which they are implicated. It must be reinvigorated by a new Third World identity that allows new and more useful coalitions of states and social movements to be built, for example on issues such as agricultural subsidies or health and trade issues. 4.1. Inspirations for Formulating a Theory of Resistance

A theory of resistance in international law must pay particular attention to the rearticulation of four issues: against what? (the nature of the exercise of power in current international society, including the exercise of power by the modern state); towards what end? (the nature of human liberation that is aimed for, including the relationship between resistance and the psychology of deprivation); using what strategies? (the relationship between reformist and radical resistance); and what should be the role of the postcolonial state in resistance? (state as a plural, fragmented, and contested terrain). While this project has not yet truly begun, some possible inspirations for building such a theory of resistance can be identified. 4.1.1. Michel Foucault

A first such source of inspiration is the notion of governmentality or governmental rationality, expounded by Michel Foucault in a set of lectures in late 1970s.66 This notion helps us in better understanding the nature of particular exercises of power that a theory of resistance must focus on. As he defines it, governmentality means: 66

See G. Burchell, C. Gordon and P. Miller (Eds.), The Foucault Effect (1991).

International Law and Third World Resistance 1.

2.

3.

163

The ensemble formed by the institutions, procedures, analyses and reflections, the calculations and tactics that allow the exercise of this very specific albeit complex form of power, which has as its target population, as its principal form of knowledge political economy, and as its essential technical means apparatuses of security. The tendency which, over a long period and throughout the West, has steadily led towards the pre-eminence over all other forms (sovereignty, discipline, etc.) of this type of power which may be termed government, resulting, on the one hand, in the formation of a whole series of specific governmental apparatuses, and on the other, in the development of a whole complex of savoirs. The process, or rather the result of the process, through which the state of justice of the Middle Ages, transformed into the administrative state during the fifteenth and sixteenth centuries, gradually becomes 'governmentalized'.67

The nature of the exercise of power in the Third World makes it clear that it is a mistake to regard power emerging from the state as the principal one. Rather, most effective power has shifted to apparatuses of government that are both above and below the state as well as to private actors, both domestic and transnational. As such we need a theory of power in the Third World that is broader than that which emerges from state institutions. Also, the form of exercise of power in the Third World has a particular bureaucratic aspect to it, consisting of techniques designed to observe, monitor, shape and control the behavior of individuals situated within the state. This focus on the population is particularly intense with regard to the poor who constitute a main domain of the exercise of governmental rationality. This is nothing new, of course. As a mid-19th century French author puts it, "assisting the poor is a means of government, a potent way of containing the most difficult section of the population and improving all other sections". 68 In addition, Foucault's definition is useful for developing a theory of resistance that moves away from a fetishism of the state. Traditional state theory in the Third World, influenced by Marxism, holds that the modern activities of government must be deduced from the properties and propensities of the state. 69 Foucault reverses that presumption and suggests that the nature of state institutions is a function of changes in the practice of government. This has the salutary effect of moving the focus of political theory from an excessive attention on institutions to practices. 7° Finally, Foucault's definition allows for a focus on the micropolitics of power relations and their strategic reversibility. The former permits a theory of resistance to take into account how individuals and groups experience power 67

68

69 10

Michel Foucalt, Governmentality in Id., at 102-103.

See Firmin Marbeau, cited in Giovanna Procacci, Social economy and the government of

poverty, in Id., at 151. Colin Gordon, Governmental Rationality: An introduction in G. Burchell supra note 66 at 4. Id.

164

Balakrishnan Rajagopal

relations, thus enabling international law to accommodate the feminist slogan 'the Personal is Political' without theoretical discomfort. 71 The strategic reversibility of power relations essentially shows the contestability of seemingly entrenched power structures by showing how governmental practices themselves can be turned around into a focus on resistance, in what Foucault calls the "history of dissenting 'counter-conducts'." 72 This focus on micropolitics and strategic reversibility offers a richer basis for articulating a theory of resistance that focuses on social movements. 4.1.2. Frantz Fanon: A second question in the articulation of a theory of resistance is towards what end the resistance must aim. In two of his well-known essays, "Concerning Violence" and the "Pitfalls of National Consciousness", 73 Fanon lays out the psychological aspects of colonialism as well as that of anticolonial resistance. There are three themes that arise from his work that are relevant to the articulation of a theory of resistance that engages with Third World social movement action. The first theme is that human liberation cannot be confined within the nationalist paradigm. As Amilcar Cabral stated, "national liberation is an act of culture." 74 This basic lesson is amply illustrated by the emergence of thousands of social movements of farmers, peasants, urban poor, indigenous peoples, women and workers, who have felt let down by the specific kinds of nation-building projects that were conceived of and prosecuted during the postcolonial period. The idea that nationalism is a total response to colonialism has proved inadequate. As Fanon says, "history teaches us that the battle against colonialism does not run straight away along the lines ofnationalism". 75 Instead, he advocates a range of measures that can be adopted to avoid the dangers of nationalist consciousness, including that of that singular postcolonial institution, the political party, which rests on the western assumption that the masses are incapable of governing themselves. 76 These views have profound importance for articulating the ends of mass resistance in already-independent nation states as they move us away from the ends that are traditionally postulated for mass movements in international law, such as secession. Indeed, the practice of several social movements such as the Zapatistas in Mexico and the National Alliance for Tribal Self Rule (NATSR) in India, have moved away from nationalist framings of their demands. Nevertheless, these movements often see their strategies as contributing to a vision of human liberation that is as profound as anticolonial nationalism. As Pradip Prabhu, one of the 71

72 73 74

75 76

For an example of discomfort with feminist approaches to international law, see Fernando Teson, Feminism and International Law: A Reply, 33 Virginia Journal of International Law 647 (1993). Colin Gordon, Governmental Rationality: An introduction in G. Burchell supra note 66 at 5. Frantz Fanon, The Wretched of the Earth (1963), at 35-106 and 148-205. Amilcar Cabral, National Liberation and Culture (1970) at 6. Frantz Fanon, supra note 73 at 148. Id. at 188.

International Law and Third World Resistance

165

conveners of the NATSR remarked about the passage ofa law in India in 1996 that extended village self-rule to so-called tribal areas, "it is the first serious nail in (sic) the coffin of colonialism". 77 A second theme that emerges from the work of Fanon relates to resistance and economic power. A traditional understanding of mass action holds that to be viable, mass action must rest on economic strength. This economic theory of violence is derived from Marxist theory, which holds that economic substructure determines all social outcomes. As Engels states, "to put it briefly, the triumph of violence depends upon the production of armaments, and this in turn depends on production in general, and thus ... on economic strength, on the economy of the State and in the last resort on the material means which that violence commands." 78 It is this logic that drives accumulation of economic power by nation states and that forms the core of the catching-up rationale in the development paradigm. It is also this logic behind the traditional Third World lawyers' response to colonialism as a peculiar economic exploitation (as opposed to racial or religious domination) that could, they believed, be reversed through important doctrines such as Permanent Sovereignty Over Natural Resources. 79 But, as I suggested above, mass action in the Third World is often a combination of struggles over material resources and symbolic meanings. It is simultaneously cultural and economic. Fanon recognizes the importance of this aspect. On the one hand, he bluntly states that in the colonies, "the economic substructure is also the superstructure. The cause is the consequence; you are rich because you are white, you are white because you are rich". 80 In the postcolonial context, the intersecting relation between caste, racial, ethnic or religious dominance with economic dominance is a fact of life. It is also a fact of life in international relations. On the other hand, Fanon also notes that even economic and military dominance has not historically assured colonial countries of victories over the colonized peoples partly due to tactics such as guerilla warfare. 81 Fanon's theory helps us avoid the underestimation of mass resistance in a non-hegemonic context, which includes most social movement action. A third theme that is relevant to a theory of resistance is Fanon's understanding that the new forms of capitalism in the Third World have transformed the political space for governance and resistance. Though he was writing well before the advent of the new global economy, Fanon notes that as the colony is transformed from a sphere of exploitation to a market for goods, blind domination of the natives based on slavery is replaced by a desire to protect

77 78 79

8

°

81

Personal communication, Fall 1997. Cited in Frantz Fanon, supra note73 at 64. G.A.Res. 1803, U.N. GAOR, 17th Sess., Supp.No. 17 at 15, UN.Doc. A/5217 (1962). See also Kamal Hossain and Subrata Roy Chowdhury (Eds.), Permanent Sovereignty Over Natural Resources ( 1984 ). Frantz Fanon, supra note 73 at 148. Id. at 64 ~65.

166

Balakrishnan Rajagopal

the market including the 'legitimate interests' of the colonial business elite. 82 This creates, in his view, a sort of "detached complicity" between capitalism and anticolonial resistance. 83 In addition, the creation of a worker force in the colony leads to a politics of reformism wherein strikes and boycotts take the place of anticolonial rebellion. 84 This analysis has much to offer to understand how global capitalism works and in how resistance to it is structured. On the one hand, global capitalism works to create and protect markets and increasingly, the 'rights' of the consumers. Its presence in Third World societies creates workers and others who directly benefit from it and whose politics is for the most part aimed at reformism. This analysis reveals how the spread of free markets is so often equated with the spread of freedom in general. Before articulating a theory of resistance under conditions of globalization, there must be an acute understanding of how globalization structures opportunities for resistance. Fanon's work offers some clues as to how to proceed. 4.1.3. Antonio Gramsci:

A third inspiration for a theory of resistance in international law is the wellknown work of Antonio Gramsci in the "Prison Notebooks".85 Though eurocentric86 like his contemporaries, Gramsci postulates three ideas that are of enormous value for articulating a theory of resistance that focuses on the practice of social movements. The first is his notion of 'hegemony', which he defines as The spontaneous consent given by the great masses of the population to the general direction imposed on social life by the dominant fundamental group; this consent is "historically" caused by the prestige (and consequent confidence) which the dominant group enjoys because of its position and function in the world of production; 2. The apparatus of state coercive power which "legally" enforces discipline on those groups who do not "consent" either actively or passively. This apparatus is, however, constituted for the whole of society in anticipation of moments of crisis of command and direction when spontaneous consent has failed. 87 1.

Hegemony to him, then, is an active process involving the production, reproduction and mobilization of popular consent, which can be constructed by any "dominant group" that takes hold of it and uses it. This meaning is different from the more common understanding of 'hegemony' as domination 82 83 84 85

86

87

Id., at 65. Id. Id., at 66. See Q. Hoare and G.N. Smith (Ed. And Trans.), Selections from the Prison Notebooks of Antonio Gramsci (1971). Id., at 416 (noting the 'hegemony of western culture over the whole world culture' and certifying that European culture is the only 'historically and concretely universal culture'). Id., at 12.

International Law and Third World Resistance

167

through force, and corresponds realistically to the global process of governance that does not rest only on brute military force but on the confluence between force and moral ideas. Thus, it is the case that great power interests are sought to be justified by the language of 'humanitarian intervention' and containment of mass resistance is justified through 'poverty alleviation'. As such, the 'consent' given by the international society of states to the general direction imposed on world affairs is a function of the domination of the force and ideas of the west. Until recently, this hegemony was unshakeable. However, after decolonization and the rise in the economic power of Asia, as well as the emergence of multiple voices of dissent from within western societies, political opportunities have existed for some decades for creative political and legal strategies for the Third World. Social movements, including those directed at corporate accountability for environmental and human rights abuses and single-issue movements such as those for banning anti-personnel landmines, have attempted to manufacture the consent of the population for alternative paths of sustainable development, peace or democracy. While these movements continue to lack the state's coercive apparatus for enforcing discipline on those who not consent, it is arguable that this part of Gramsci's definition does not apply, and has never applied to international affairs as it has always lacked an enforcement mechanism. It is plausible to argue that in international law and relations, the conditions under which 'spontaneous consent' can be manufactured are as, if not more, important than the existence of forceful enforcement mechanisms. One could see this idea in the disciplinary sensibility that states obey most rules of international law most of the time even in the absence of enforcement, 88 or in the recognition of the increasingly important role that transnational advocacy networks play in international politics. 89 A second theme articulated by Gramsci relates to the definition of 'passive revolution' and the distinction between 'war of position' and 'war of movement/maneuver'. This theme is critical for understanding the relationship between civil society and the state broadly, and for theorizing about the tactical efforts of social movements to influence global law and policy. He defines passive revolution in two ways: as a revolution without mass participation and as a "molecular" social transformation that takes place beneath the surface of society where the progressive class cannot advance openly. 90 The latter meaning, for which he cites Gandhi's non-violent movement against the British rule as an example, 91 helps to introduce the everyday forms of resistance to economic 88

89

90

91

See Louis Henkin, How Nations Behave (1979). Admittedly, the reason given for this does not rest on a Gramscian framework, but on an understanding of legal process. Nevertheless, this perspective sees the value of maintaining western 'hegemony' through the application of a legal process that produces consent. See also Harold Koh, Why do Nations Obey International Law? 106 Yale Law Journal 2599 (1997). See Margaret Keck and Kathryn Sikkink, supra note 33. Selections from the Prison Notebooks of Antonio Gramsci, supra note 85 at 46. Though Gramsci is critical of passive revolution. Id., at 107.

168

Balakrishnan Rajagopal

and political hegemony into political theory. Although he is critical of passive revolution as a political program, he uses the term ambiguously enough to indicate that when frontal attack may be impossible, a passive revolution may be taking place: that despite the surface stability of particular regimes or indeed, the global order, class and other forms of struggle continue even if at an interpersonal level. 92 This perspective is important for expanding the analysis of international law and politics to include thick descriptions of the micropolitics of change. Without engaging with social movement literature and the tools of anthropological analysis that it provides, international law and relations cannot hope to accomplish this. It is important to note the distinction between 'war of position' and 'war of movement/maneuver' in Gramscian thought. Gramsci uses 'war of position' to mean a muted form of political struggle that alone is possible during periods of relatively stable equilibrium between fundamental classes. 93 In particular, he emphasizes that this struggle takes the form of winning over civil society before taking on the state. As he puts it, "a social group can, and indeed must, already exercise "leadership" before winning governmental power (this indeed is one of the principal conditions for winning of such power)." 94 A 'war of movement/maneuver' on the other hand, is a frontal attack that aims to take over the institutions of hegemony. Boycotts are a form of war of position, strikes of war of movement. 95 The same struggle can constitute both a war of position and war of movement at the same time. Thus he notes that Gandhi's passive resistance is a war of position, which at certain times becomes a war of movement and at others, underground warfare. 96 Social movement action is mostly a passive revolution, which can, at times be a war of position (as when transnational movements press demands for boycotts of brands or insist on eco-labeling) or a war of movement (as when ethical investors divest stocks of companies that are deemed by social movement actors to be unfriendly to environmental or human rights concerns). A political theory of international law that ignores the role of passive revolution or war or position is in danger of becoming irrelevant or worse, being blind to the role of non-state groups that do not qualify as NGOs. A third issue that is important to a theory of resistance is the relationship between the masses and intellectuals. Several social movements that arose during the 1990s have revealed the existence of a symbiotic relationship between mass action and movement intellectuals who act as mediators between the movements and the global cosmopolitan class. Some intellectuals have assumed leadership positions themselves in social movements. Examples include Gustavo 92

93

94

95 96

Id. at 47. Partha Chatterjee suggests that passive revolution is in fact the general framework of capitalist transformation in societies where bourgeois hegemony has not been accomplished in the classical way. See P. Chatterjee, The Nation and its Fragments (1993) at 212. Id., at 206. Id., at 57. Id., at 229. Id.

International Law and Third World Resistance

169

Esteva (Zapatistas), Pradip Prabhu (NATSR), Vandana Shiva (ecological feminism) and Arundhati Roy (Narmada Bachao Andolan in India). However, there are few, if any, international lawyers who are associated with social movements. This fact, which is highly regrettable, makes even progressive international lawyers rather clubby and elitist with no real connection with the most important mass struggles of our time. This is especially the case in the Third World, where international lawyers have an ethical responsibility to the masses, but remain committed to highly formalistic and statist analyses of the international order. This leads them to take positions on international legal issues that reflect state positions while entirely ignoring social reality. An example would be the ready acceptance by Third World international lawyers in the 1970s of the developing countries' position that environmental concerns were those of the rich while poverty was the greatest polluter, while entirely overlooking the existence of peoples' movements around the environment in their own societies. 97 Gramsci's analysis helps us formulate a theory about the proper relationship between international lawyers (as intellectuals) and social movements. He explains that the supremacy of the social group manifests itself in two ways, as "domination" and as "intellectual and moral leadership." 98 As such, it is imperative for a struggle to encompass the capture of intellectual and moral leadership and this opens a role for intellectuals. Agreeing with Lenin that the division of labor between intellectuals and the working class is false, 99 he suggests that the working class is capable of developing from within itself 'organic intellectuals' who have a dual role: that of production and organization of work and of a 'directive political' role. 100 This approach has the salutary effect of drawing attention to the class character and other ruling characteristics of international lawyers while recognizing the connection between their role in 'producing' legal knowledge and the dominant group of which they are a part. It is imperative that a theory of resistance in international law pay close attention to these aspects of elite-non elite and law-social interaction to remain effective and credible. 4.1.4. Partha Chatterjee One of the most important issues for articulating a theory of resistance in international law concerns the role of the state. Human rights, now the sanctioned language of resistance in international law, is generally thought to be

97

98 99 100

See e.g., R.P. Anand, Development and Environment: The Case of the Developing Countries, 24 Indian Journal of International Law 1 (1980). Several environmental movements such as Chipko had been already on going in India since the early 1970s. See Ramachandra Guha, supra n. 38. Selections from the Prison Notebooks of Antonio Gramsci, supra note 85 at 57. Id., at 3-4. Id., at 4.

170

Balakrishnan Rajagopal

an anti-state discourse, though this is now increasingly recognized as an inaccurate description. 101 Given that many social movements arose as a result of the pathologies of the developmental state, as I suggested above, 102 what is and should be the relationship between resistance and the state? Should the state be a target or an ally? It is impossible to answer this question in the abstract as it depends on the particular relationship between states and social movements on particular issues. Nevertheless, some clues can be drawn from the work of Partha Chatterjee 103 about the nature of the postcolonial state in order to develop some understanding of how social movements relate to Third World states. A first theme that Partha Chatterjee develops is the centrality of the ideology of development for the very self-definition of the postcolonial state. 104 This directly resulted from an economic critique of colonial rule, that it was illegitimate because it resulted in the exploitation of the nation. 105 The state represents the only legitimate form of exercise of power because it is a necessary condition for the development of the nation. In this view, the legitimacy of the state does not come merely from elections; rather it comes from its rational character to direct a program of economic development for the nation. 106 As such, the challenge posed by social movements to the developmental ideology of the state, whether it be through environmental or human rights critiques of its developmental activities, is seen as anti-national. 107 What is required instead, is a theory of resistance that questions the development ideology of the state and seeks to build alternative sources of legitimacy for the state. A second theme relates to the supposed neutrality of the state in the development process. The postcolonial goal was to establish a Hegelian rational state that would engage in planning for and implementation of development. This soon proved to be difficult as the state itself proved to be a contested terrain where the power relations that it seeks to reorder through development planning are already shaping the very identity of the state 108 and that of civil society. This means that the objects and subjects of planning merge into each other and politics is never just an external constraint on the state in the

101

102 103

104 105 106 107

108

This is due to the increasing salience of economic, social and cultural rights which require an active role for the state, as well as the recognition that effective protection of human rights and rule of law sometimes requires state-building. On the first, see UNDP, Human Development Report: Human rights and Human development (2000). On the second, see G. Fox, Strengthening the State, 7 Indiana Journal of Global Legal Studies 35-77 (Fall 1999). See supra note 65 and 65 and the accompanying text. See Partha Chatterjee, supra note 92. Id., at 202-205. Id., at 202. Id. For example, the critics of the Narmada dam project in India have been dubbed by its Home Minister as foreign elements. See Balakrishnan Rajagopa/, The Supreme Court and Human Rights (Opinion), The Hindu (6 December 2000). Partha Chatterjee, supra note 92 at 207-208.

International Law and Third World Resistance

171

development process. 109 Rather, politics deeply interpenetrates the state even as the state constitutes itself as the chief agent of development. This insight has deep implications for international law, as it too assumes a neutral state that undertakes to execute legal obligations in a technical-rational manner, regarding objects of intervention that are located in politics. A theory of resistance in international law must allow for the inter-penetrability of state and society, of domestic and international, and of law and politics. In fact, social movement practice shows that this has already been happening. For example, the leaders of social movements and the state agencies in Latin America in areas such as environment and women's rights constantly switch jobs and blur the lines between the state and the objects of its intervention. Often, social movements and the states have complex, inter-penetrating relationships, such as SERNAM in Chile, 110 which is a National Women's Bureau, or the Venezuelan ecology movement that began with a state Organic Law on the Environment in 1976. 111 This complexity shows that a theory of resistance in international law must treat the state as a plural, and fragmented terrain of contestation rather than a monolith.

5.

CONCLUSION

The call for a theory of resistance that addresses a need to understand social movement action should not be misunderstood as a call for a rejection of international legal order. Rather, international law and institutions provide important arenas for social movement action, as they expand the political space available for transformative politics. For international lawyers, the ability to engage with social movement literature and developing the sensibility as concerned activists who are motivated by the best cosmopolitan ideals of the discipline, awaits. Mass action is a social reality in contemporary society and international lawyers cannot remain either ignorant of, or disengaged from, it. A new Third World approach to international law, best exemplified by the establishment of this journal, will have to engage with social movements to transcend the impasse in which it finds itself. This new international law has the potential to contribute to a new understanding of not only the doctrines and ideas of international law, but also the very ethical purpose of the discipline. In this article, I have traced some theoretical challenges faced by international lawyers as they try to understand their encounter with social movements. I have also suggested some preliminary considerations for articulating a theory 109

110

111

Id., at 208. See V. Schild, New Subjects of Rights? Women's Movements and the Construction of Citizenship in the "New Democracies", in Sonia Alvarez et al, supra note 38, pages 91-117 at 101. Maria Pilar Garcia, The Venezuelan Ecology Movement: Symbolic Effectiveness, Social Practices and Political Strategies in Arturo Escobar and Sonia Alvarez, supra note 38 pages 150-170 at 151.

172

Balakrishnan Rajagopal

of cultural politics that could ground a theory of resistance in international law. For too long, during almost its entire life, international law has remained far too western, elitist, male-centred, and imperial, and the encounter with social movements offers an opportunity to fundamentally transform itself.

M. SORNARAJAH*

9. Economic Neo-Liberalism and the International Law on Foreign Investment

1. INTRODUCTION

The international law of foreign investment has been, over the years, a source of intense controversy and division between developed and developing nations. Indeed, a study of this area reveals many of the broader debates between developed and developing countries regarding the way in which international law is made, the relationship between legal change and theories of development and, more recently, the unpredictable effects of globalization and the economic policies of neo-liberalism. This article seeks to sketch some of the major aspects of the history of foreign investment law, this in order to identify and assess the significant trends and debates which are likely to shape the foreign investment law of the coming decade.

2. HISTORICAL BACKGROUND

The phenomenon of economic neo-liberalism has had a profound impact on the contemporary law relating to foreign investment. Neo-liberalism, in basic terms, seeks to promote the free market, and in the legal sphere, this has resulted in the promotion of foreign investment regimes, which expand enormously the rights of the foreign investor, and correspondingly diminish the controls that the host state may exercise on the investor. As the term 'neo-liberalism' itself implies, this is a new phase of an old phenomenon, for liberalism in one form or another has been the driving force of globalization from the nineteenth century to the present. During the nineteenth century, English liberalism was dominated by a perception of property as a fundamental value of society and the increase of wealth through trade as

*

LLD (London). Professor of Law, National University of Singapore.

173 A. Anghie, B. Chimni, K. Mickelson, 0. Okafor (eds.). The Third World and International Order: Law, Politics and Globalization, 173-190 © 2003 Koninklijke Brill NV. Printed in Great Britain.

174

M. Sornarajah

a legitimate goal of human activity. 1 Liberalism of this variety justified conquest of other peoples and their subsequent control through imperialism. It had a racist element in that people who were non-European were excluded from the scope of the law on the presumed notion that they had to be uplifted to the same standard of civilization as the Europeans. 2 It was only after they had been led into that standard of civilization that they could be deemed fit to rule themselves. Until then, they and their lands could be held by the European conquerors. These views justified the exploitation of the natural resources of the colonized people, the conduct of unbalanced trade, and the massive transfer of resources to the metropolitan state; as a result, vast fortunes were made by the colonial power. The international law of the nineteenth century favored the propertied classes of Europe and the United States. The instrumental use of international law to justify an iniquitous system that was imposed by force upon the rest of the world through the manipulation of notions such as the standard of civilization was masked by presenting the law in normative terms - as ensuring the progress of backward peoples and providing for their protection. Large flows of foreign investment and trade took place in the colonial period. Within the colonial context there was little need for the formulation of an international law on foreign investment as the imposition of an imperial system of law within the empire ensured that commercial laws were uniform and commercial disputes were disposed of in the courts of the imperial system. The final appellate court being at the capital city of the empire, investors were quite content with the system. Recalcitrant states outside the imperial system were brought to their heels through the use of force. Thus, the opium wars ensured that China kept her doors open to European trade. Such victories were secured by unequal treaties and the system of extraterritoriality they imposed. Gunboat diplomacy was more convenient than the application of rules. In Latin America, by contrast, ongoing disputes emerged between host states and the foreign investor as to the degree of control that could be exercised by the host state over the investment. 3 The increasing success of the independence movements of Asia and Africa prompted the development of a new set of strategies on the part of the metropolitan states. It was during this period that international law became Locke, whose writings are regarded as the font of English liberalism, regarded the accumulation of property and wealth as the basis for organised society. But, it may well be that Locke's defence of sanctity of property was directed at the Crown in England so as to ensure that the Crown's prerogatives were whittled and the emerging middle classes were enfranchised. But, Locke was reinterpreted in the United States as favouring the sanctity of property as the basic value of society. J. Locke, Of Property in The Second Treatise of Government (1681). On the manipulation of the standard of civilization, see G.W. Gong, The Standard of 'Civilization' in International Society (1984). The famous Calvo Clause, whereby all investors agreed to submit themselves to local laws and the local court system, was a product of this controversy. See M. Sornarajah, The International Law of Foreign Investment 89 (1996).

Economic Neo-Liberalism and Foreign Investment

175

particularly important as a fa