Counter-hegemonic International Law: rethinking human rights and development as a Third World strategy

Abstract

The very meaning of the term ‘Third World’ has become disarticulated, with corresponding changes to the politics and structure of international law. At stake is the question: is international law of any use to the Third World, and if it could be so, how must one rethink it? This article argues that there is now a distinction between hegemonic and counter-hegemonic international law, and that the future of international law and the Third World are intricately intertwined in contributing to a counter-hegemonic international law. But, in order to achieve this goal, the past strategies of Third World engagement through international law, for example through the discourses of human rights and development, need to be seriously rethought. The article offers a critical analysis of the hegemonic nature of human rights and development discourses in contemporary international law.

Notes

1 Balakrishnan Rajagopal, ‘Locating the Third World in cultural geography’, Third World Legal Studies, 1998 – 99, 1, pp 1 – 20.

2 This paragraph summarises some of the main themes elaborated in greater length in my book, Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance, Cambridge: Cambridge University Press, 2003.

3 See Richard Falk's article in this issue.

4 See Antony Anghie's article in this issue.

5 Detlev Vagts, ‘Hegemonic international law’, American Journal of International Law, 95, October 2001, pp 843 – 848; and Jose Alvarez, ‘Hegemonic international law revisited’, American Journal of International Law, 97, October 2003, pp 873 – 888.

6 I use the terms ‘hegemony’ and ‘counter-hegemony’ in a Gramscian sense, and not in the sense of raw domination through power alone which is countered by power. For an explanation, see Rajagopal, International Law from Below, ch 1.

7 An example would be Mohammed Bedjaoui, Towards a New International Economic Order, New York: Holmes & Meier, 1979. For an analysis of Third World attitudes towards economic governance, see James Gathii's article in this issue.

8 Major works on post-development include Wolfgang Sachs (ed), The Development Dictionary: A Guide to Knowledge as Power, London: Zed Books, 1992; Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World, Princeton, NJ: Princeton University Press, 1995; and Majid Rahnema & Victoria Bawtree (eds), The Post- Development Reader, London: Zed Books, 1997. For an argument that emphasises the radical democratic possibilities of post-development theory, see Aram Ziai, ‘The ambivalence of post-development: between reactionary populism and radical democracy’, Third World Quarterly, 25 (6), 2004, pp 1045 – 1060.

9 Louis Sohn, ‘The new international law: protection of the rights of individuals rather than states’, American University Law Review, 32, 1982, p 1.

10 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent, Philadelphia, PA: University of Pennsylvania Press, 1999.

11 Rajagopal, International Law from Below, pp 176 – 182. See also Giorgio Agamben, State of Exception, Chicago, IL: University of Chicago Press, 2005, for an argument that emergency has become a normal mode of governance.

12 Michael Ignatieff, ‘The American empire: the burden’, New York Times Magazine, 5 January 2003.

13 See Baxi, in this issue, for a critique of the market-friendly conception of human rights.

14 Robert Zoellick, ‘Countering terror with trade’, Washington Post, 20 September 2001.

15 Quoted in John Pilger, ‘Lies and more lies’, Outlook, available at www.outlookindia.com 1 October 2003.

16 Steven Erlanger, ‘Italy's Premier calls Western civilization superior to Islamic world’, New York Times, 27 September 2001.

17 Niall Ferguson, ‘The end of power’, Wall Street Journal, 21 June 2004; and Ignatieff, ‘The American empire’.

18 Immanuel Wallerstein, The Decline of American Power, New York: WW Norton, 2003.

19 I don't mean that hegemonic international law has been supported only by empire-mongers. Another important stream of hegemonic international law thinking has come from ‘constitutional hegemonists’, who are senior US officials and conservative international lawyers interested in asserting the primacy of US interests and using US power to that end. See John Bolton, ‘Is there really “law” in international affairs?’, Transnational Law & Contemporary Problems, 10, 2000, p 1; Issue on the Symposium, ‘American Hegemony and International Law’, Chicago Journal of International Law, 1, 2000; and Eric Posner & Jack Goldsmith, The Limits of International Law, New York: Oxford University Press, 2005. For a critical review of this book, see Balakrishnan Rajagopal, Review, Ethics & International Affairs, 19 (3), 2005, pp 106 – 109.

20 For an alternative reading, which recovers less-known enlightenment thought that offered a critique of empire, see Sankar Muthu, Enlightenment against Empire, Princeton, NJ: Princeton University Press, 2003.

21 Uday Mehta, Liberalism and Empire, Chicago, IL: University of Chicago Press, 1999.

22 Joseph Conrad, Heart of Darkness, New York: Penguin Books, p 74.

23 Memorandum by Cecil Hurst, Legal Advisor to the British Foreign Office, on the American Reservations to the Peace Treaty, 18 November 1919, DBFP Series 1, Vol V, no 399.

24 See the symposium issue of the American Journal of International Law, 65 (1), 1971 for a discussion of the legality of the Cambodia operation, especially the lead article by Richard Falk. The comment by Robert Bork illustrates the strong similarity between ‘constitutional hegemonists’ of the 1960s and now.

25 Joseph Stiglitz, ‘Towards a new paradigm for development: strategies, policies, processes’, 9th Raul Prebisch Lecture delivered at the Palais des Nations, Geneva, 19 October 1998, reprinted as chapter 2 in Ha-Joon Chang (ed), The Rebel Within, London: Wimbledon Publishing, 2001, pp 57 – 93.

26 Balakrishnan Rajagopal, ‘The problem with participation: governance, civil society and the circle of democracy’, paper presented at the Conference on ‘Participatory Governance: A New Regulatory Tool?’, International Institute for Labor Studies/International Labor Organisation, Geneva, 9 – 10 December 2005. For an astute analysis of this distinction, see Partha Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World, New York: Columbia University Press, 2004, p 69.

27 Sachs, The Development Dictionary, p 1.

28 Ha-Joon Chang, Kicking Away the Ladder: Development Strategy in Historical Perspective, London: Anthem Press, 2002, pp 18 – 19.

29 Ibid; and Alice Amsden, The Rise of ‘the Rest’: Challenges to the West from Late Industrializing Economies, Oxford: Oxford University Press, 2003.

30 Uma Kothari, ‘From colonial administration to development studies: a post-colonial critique of the history of development studies’, in Kothari (ed), A Radical History of Development Studies, Anchor, 2005, pp 47 – 66; and Rajagopal, International Law from Below, Anchor, 2000.

31 Ministerial Declaration, wto/Min(05)/Dec, 22 December 2005, available at http://www.wto.org/English/thewto_e/minist_e/min05_e/final_text_e.htm.

32 Dani Rodrik, ‘The global governance of trade as if development really mattered’, paper, Harvard University, July 2001, available at http://www.ukglobalhealth.org/content/Text/rodrikgovernance.PDF.

33 Kofi Anan, In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary General, A/59/2005, 21 March 2005.

34 See Human Security Now, Report of the Commission on Human Security, 2003.

35 UN Security Council Resolution 1645, S/RES/1645/2005; and UN General Assembly Resolution 60/180, A/RES/60/180, 30 December 2005.

36 In the run-up to the Iraq war, the UN Development Programme (undp) in the Middle East published some very suggestive and useful reports, linking the backwardness of Arab societies, as indicated by the status of its women, with the need for modernisation. These were immediately picked up by the warmongers to encourage ‘willing’ Arabs to collaborate in the use of force against Iraq. See undp, Arab Human Development Report, Geneva: undp, 2002. For a commentary, see Thomas Friedman, ‘The Arabs at the crossroads’, New York Times, 3 July 2002.

37 See, for example, the five reports submitted by the Independent Expert on the Right to Development at the UN Commission on Human Rights, Dr Arjun Sengupta, available at http://www.unhchr.ch/huridocda/huridoca.nsf/FramePage/rightdevelopment+En?OpenDocument.

38 See Amartya Sen, Development as Freedom, 1999; and World Bank, Comprehensive Development Framework, available at http://www.worldbank.org/cdf.

39 See, for example, Douglas North, Institutions, Institutional Change and Economic Performance, Cambridge: Cambridge University Press, 1990; World Bank, World Development Report: Building Institutions for Markets, Washington, DC: World Bank, 2002; and Christopher Clague, Institutions and Economic Development: Growth and Governance in Less Developed and Post-Socialist Countries, Baltimore, MD: Johns Hopkins University Press, 1997.

40 On the need to recreate the state, see Jackie Stevens' article in this issue.

41 Tom Farer, ‘Toward an effective international legal order: from coexistence to concert?’, Cambridge Review of International Affairs, 17 (2), 2004, pp 219 – 238.

42 Alvarez, ‘Hegemonic international law revisited’.