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Abstract
The life of a Third World international lawyer is devoted to resistance to the norms of international law designed by agents with power to promote the interests of the powerful sections of the international community. Increasingly the instrumental norms of international law are fashioned through the use of private power, making the positivist claim that public international law is a law between states illusory. The task of this paper is to identify a framework of common concerns so that a collectivity of Third World lawyers can work together, examine how mechanisms of power can be countered, and devise a confrontational strategy.
Notes
1. The Third World is no longer confined to geographical areas that were considered poor in the past. These were the former colonies in Asia, Latin America and Africa. The Third World now also includes the poor in the developed regions such as Europe and North America. As such, the Third World international lawyer is one who seeks to resist instrumental international laws that serve the rich, and to replace them with norms that ensure global justice through eliminating poverty and promoting the protection of the environment and human rights. She is not identified in terms of geography.
2. Pogge, World Poverty and Human Rights Reform. The dispute between political philosophers as to global justice uniformly recognised that poverty involves global injustice. Any norm or regime that creates poverty must be regarded as being in violation of global justice.
3. This is a mild criticism of the TWAIL movement, which is strong on addressing past inequities. TWAIL’s leading texts are intent on addressing such inequities. This phase must be ended as there is sufficient literature on that aspect. It is more important to address the inequities that are extended into or created in modern international law through the instrumental use of power.
4. Anghie, Imperialism, Sovereignty.
5. The two leaders of the Third World were India and China, both adherents of socialism. The founding philosophy of pancha sila, which forms the basis of the Bandung Declaration, was earlier stated in a 1952 treaty between China and India. The two states played leading roles in the Non-Aligned Movement. China continues to state pancha sila as the cornerstone of its policy.
6. The Declaration of the Bandung Conference is instructive. It articulated 10 principles but they are largely assertions of the Westphalian model of state sovereignty and the principle of non-interference. The assertion of equality is to flow from the newly acquired sovereignty of the Third World states.
7. “Right to Exploit Freely Natural Wealth and Resources.” General Assembly Resolution 626, UN GAOR, 7th Sess., Supp. No. 20, UN Doc. A/2361 (December 21, 1952).
8. We now have literature on the works of the leading Third World lawyers of this generation. For Mohammed Bedjaoui, see Bedjaoui et al., Liber Amicorum Judge Mohammed Bedjaoui. For Kamal Hossein, see Sornarajah, “The Return of the NIEO.”
9. Fukuyuma, The End of History.
10. There is evidence of this purposeful move. Arguments were made that the UN General Assembly could not make binding rules but only recommendations. In Aminoil v. Libya these arguments were given legal form, with the NIEO being considered a set of aspirational norms, not having legal status.
11. Sun et al., The Luxury Economy and Intellectual Property.
12. The course of this expansionary law is described in Sornarajah, Resistance and Change.
13. Puig, “Social Capital in the Arbitration Market.”
14. Stiglitz, The Great Divide.
15. Galbraith, “Recession Economics.”
16. Ecuador was able to establish massive environmental pollution and destruction of the homelands of its aboriginal people by petroleum companies before its domestic courts. But, it did not have standing to establish these facts before arbitral tribunals before which the petroleum companies sued.
17. For example, Stewart, “Remedying Disregard in Global Regulatory Governance”; Benvenisti, “The Law of Global Governance”; and Benvenisti and Downs, “The Empire’s New Clothes.”
18. The process is traced in Sornarajah, Resistance and Change.