What may the ‘Third World’ expect from international law?

Abstract

What may the Third World expect from international law? To answer this question, one must begin by interrogating the meaning of the terms ‘Third World’ and ‘international law’. This article argues that the meaning of the term ‘Third World’ has historically had layers of complexity to it, and it crucially includes not only states but also peoples. On the other hand, grand narrative traditions of the rise and growth of international law remain typically concerned with its ‘lawness’, the changing nature of its subjects, and its sources. Arguing against such an understanding from a sociological perspective, the article argues that no longer can the re-make of contemporary international law be understood as the exclusive law of the West. It must recognise the authorial role played by the Third World in all its complexity.

Notes

1 Gerry Simpson, Great Powers and Outlaw States, Cambridge: Cambridge University Press, 2004.

2 Upendra Baxi, ‘Mass disasters, multinational enterprise liability, and private international law’, Recueil des cours, 276, 2000, pp 391 – 427.

3 See Upendra Baxi, The Future of Human Rights, Delhi: Oxford University Press, 2006, pp 272 – 302.

4 I have in view here the world-historic contrast between the prose of the Global Compact and the Secretary General's Report, In Larger Freedom, with the Declaration of the Bill of Rights of the Ogoni Peoples and the allied genre of the Zapatista declaration enshrining the rights of the Earth's peoples.

5 See, generally, Balakrishnan Rajagopal, International Law From Below: Development, Social Movements, and Third World Resistance, Cambridge: Cambridge University Press, 2003.

6 James Theo Gathii, ‘Geographical Hegelianism in territorial disputes involving non-European land relations’, in Anthony Anghie et al (eds), The Third World and International Order: Law, Politics, and Globalization, The Hague: Martinus Nijhoff, 2003, pp 75 – 116.

7 See Moshe Hirsch, ‘The impact of the Advisory Opinion on Israel's future policy: international relations perspective’, Journal of International Law &Relations, 1 – 2, 2003, pp 319 – 344.

8 Daniel Bradlow, ‘Private complaints and international organizations: a comparative study of the independent institutional mechanisms in international financial institutions’, Georgetown Journal of International Law, 36, 2005, pp 403 – 468.

9 The corpus of Peter Muchlinski and Sol Picciotto illustrates notably the perplexities thus arising.

10 It is never wholly clear what the abounding narratives of these endings fully signify. The Cold War has indeed ended as far as relations among the communities of states constituted by the two superpower rivalries have changed. But it continues in many a different way in the postcolonial killing fields. See, notably, Peter Hallward, ‘Option Zero in Haiti’, New Left Review, 27, 2004, pp 23 – 47. The Cold War still persists in relation to the US regime of sanctions against Cuba. It is unnecessary to multiply examples. From the standpoint of suffering peoples and violated humanity, the formal ending of the Cold War remains far from reassuring. Nor are ‘endings’ of the Old Cold War severable from the beginnings of the New Cold War.

11 Michael Hardt & Antonio Negri, Empire, London: Routlege, 2002, pp xiii, 263 – 264.

12 See, in particular, Kevin C Dunn, ‘Africa's ambiguous relation to the Empire’, in Paul A Passavant & Jodi Dean, Empire's New Clothes: Reading Hardt and Negri, London: Routledge, 2004, pp 143 – 162.

13 Altogether conveniently, and mystifying some causal lineages, there is amnesia concerning the histories of so recent a past as furnished by the various phases of the Cold War. Occasionally, the evils of the Third World almost remain entirely articulated as the combustible forces of ‘crony capitalism’ and volatile ‘ethno-nationalism’, which possess the power to set the ‘world on fire’. See Amy Chua, The World on Fire: How Free Market Democracy Breeds Ethnic Conflicts, London: Random House, 2003.

14 This focusing on a select set of national movement leadership insufficiently cognises the diverse ideological commitments and conflicts animating decolonisation/anti-imperialism struggles and collapses the enormous diversity of the mission and the methods of achieving and preserving national independence which persist in different forms in the postcolonial era. Thus, even Ranajit Guha at times bemoans the ‘mediocre liberalism’ of the founders of Indian democracy.

15 Manuel Castells, End of Millennium, Oxford: Blackwell, 1998, p 363.

16 See Peter Lewis, ‘From prebandlism to predation: the political economy of Nigeria’, Journal of African Studies, 34, 1996, pp 79 – 103.

17 Castells, End of Millennium, p 98.

18 As seen now in the unfolding histories of the two ‘terror’ wars. See, for the distinction, and the literature cited, Upendra Baxi, ‘The “war on terror” and the “war of terror”: nomadic multitudes, aggressive incumbents, and the “new” international law’, Osgoode Hall Law Journal, 43, 2005, pp 7 – 44. Global and national governance practices amid the two ‘terror’ wars now unfortunately illustrate this by installing the status of ‘rogue’, ‘outlaw’ or ‘enemies of civilisation’ regimes and even communities of peoples, as if these states, societies, and peoples alone and singularly answered this description!

19 See George Steinmetz, ‘The state of emergency and the revival of American empire: toward an authoritarian post-Fordism’, Public Culture, 15, 2003, pp 323 – 245.

20 Giorgio Agamben, Means Without End: Notes on Politics, Minneapolis, MN: Minnesota University Press, 2000.

21 Arturo Esobar, Encountering Development: The Making and Unmaking of the Third World, Princeton, NJ: Princeton University Press, 1995.

22 So vitally signified by the labours of the Unrepresented Nations and Peoples Organization (unpo).

23 Castells, End of Millennium, p 164.

24 Waged by peoples living with disabilities, the lesbigay transgender communities, politically incarcerated peoples (detunes) everywhere, and the globalised communities of the stateless peoples and of migrant workers, including the victims of the global sex-trafficking trade.

25 Among the protean forms of Third World people's resistance, which ambush, disorganise, fragment and fracture hegemonic great powers, perhaps the construction of the body as a site of struggles against domination remains significant. The rebellious sought (in the words of Fanon) ‘to embody history in his [her] person’. Very different histories signifying the individual body as a global social text are offered by Mohandas Gandhi, Martin Luther King, Jr, Nelson Mandela, Aung San Suu Kyi, the self-immolating Buddhist monks in Vietnam, the Palestinian peoples, and those who now invent the technologies of suicide bombing. I here summarily suggest that historical narratives of the Third World need to more fully grasp the practices of disembodiment by the hegemon, and re-embodiment by the subaltern. This task still awaits Foucauldian labours.

26 International law honours the writings of the ‘publicists’—freestanding thinkers/scholars—even now as a ‘subsidiary’ source of international law under the Statute of the International Court of Justice. But their prior role in the production of its values, standards, and norms has been immense. Postcolonial and postmodern publicists have, in recent times, critiqued their classical predecessors for Eurocentric bias, overt and covert residues of a global epistemic racism, and for deeply ingrained biases of a universal patriarchy and civilisational superiority. Even so, the renovation of contemporary international law normativity does not altogether decry the role of publicists. More importantly, we need to acknowledge fully the production of new global social meanings of ‘international law’ made possible by the politicised multitudes. To take one among may examples, the several hundred thousand peoples of the world who globally protested against the early intimations of the Iraq war were able to register people-oriented versions and visions of the UN Charter-based proscriptions concerning ‘justifications’ for recourse to ‘pre-emptive’ use of collective force. New histories of international law must surely more fully acknowledge the already several fecund sites for its renaissance provided by insurgent global counter-publics.

27 See specially John Braithwaite & Peter Drahos, Global Business Regulation, Cambridge: Cambridge University Press, 2000.

28 See, in the peculiar context of the European Community law, David M Trubek & Louise G Trubek, ‘Hard and soft law in the construction of modern Europe: the role of open method of co-ordination’, European Law Journal, 11, 2005, pp 343 – 364. I offer a somewhat different take concerning how ‘soft’ law stands hardened and in turn ‘hard’ law stands softened. See Upendra Baxi, ‘Politics of reading human rights: inclusion and exclusion within the production of human rights’, in Saladin Meckled-Garcia & Basak Çali (eds), The Legalization of Human Rights, London: Routledge, 2006, pp 182 – 200.

29 Upendra Baxi, ‘Introduction to Jeremy Bentham’, in Baxi, The Theory of Legislation, Bombay: NM Tripathi, 1975, pp xviii – xxlii.

30 Niklas Luhman, Sociology of Law, London: Routledge, 1985.

31 Of course, there also exist some trends of reversal. The ‘hard regime’ proscribing the use of unilateral or coalitional force outside the purposes and principles of the UN Charter now stands altogether softened by the recourse to the so-called right to pre-emptive use of force by the hegemonic nations against the ‘outlaw’ states, peoples and communities, categories that all too often encapsulate unprincipled and standardless use of some ‘Star wars’-type deployment of immense weaponry of mass destruction that no longer respects even the canons of international humanitarian law and jurisprudence.

32 Thus, once upon a time, the expectation of self-determination from the colonial yoke was considered ‘soft’; it has now hardened in the common article 2 of the Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights. Likewise, normative outlawry of all forms of racial discrimination, intolerance and xenophobia remained ‘soft’ law, which has now increasingly hardened.

33 See, notably, the discourse concerning the Millennium Development Goals and the draft UN Norms concerning the human rights responsibilities of multinational corporations and other business entities.

34 See, notably, Bhupinder Chimni, ‘Third World approaches to international law: a manifesto’, in Anghie et al, The Third World and International Order, pp 47 – 74.

35 See Janna Thompson, Taking Responsibility for the Past: Reparation and Historical Justice, Cambridge: Polity Press, 2004.

36 Differently articulated by John Rawls, Charles Beitz and Thomas Pogge.

37 Notably proffered by Bouaventura de Sousa Santos, Towards a New Commonsense: Law, Science, and Politics in the Paradigmatic Transition, New York: Routledge, 2000.

38 See Anthony Anghie, Imperialism, Sovereignty and the Making of International Law, Cambridge: Cambridge University Press, 2004.