This article is written by Anindita Deb, a student of Symbiosis Law School, NOIDA. The objective of this article is to analyze the problems related to the implementation of International law in third world countries.
Jeremy Bentham, an English philosopher and jurist coined the term “international law,” which simply means “the system of law that governs relations between States/nations.” Other names for the term include “law of nations,” “law among nations,” and “inter-state law,” implying that the state is the only subject of international law. Though, in modern times, the reflection of international law indicates that States are no longer the sole actors of international law, because new actors have emerged on the international plane: Public International Organisations (IGOs), Non-Governmental Organisations (NGOs), Transnational Corporations (TNCs), and Private Individuals (PIs). Despite this development in terms of the number of actors in international law, the Western developed nations have sought to expand and reconstruct international law norms in their favour to the detriment of third-world countries. As a result, a group of scholars, the majority of whom are from third-world countries, has embarked on critical scholarships under the name Third-World Approach to International Law (TWAIL), to address the injustices perpetrated against the third world as a result of the developed countries’ hijacking of international law.
This group of scholars is more familiar with or has a greater interest in, the common debate in the history of international law about whether international law is law or not. Language ambiguity (the argument that there is a lack of a legislature and sanctions in international law), led some nineteenth-century philosophers to deny that international law is the law. And that, like the history of the United Nations Charter, the history of international law has been a succession of conflicts about the correct interpretation. Because language is inherently ambiguous, there is always a debate over how to interpret norms of law that are conveyed in words. One explanation is that international law, such as the Charter, was drafted mostly by politicians with little assistance from lawyers when it was first drafted.
TWAIL was conceived by third-world intellectuals as a result of practical experience with the conditions of third-world citizens as a result of international law’s process and application, and how it affects the people of the third world. This is an approach to international law that gives it a highly specific meaning or interpretation in the context of the third-world people’s experiences throughout the colonial and post-colonial periods. This article’s argument and analysis take into account this third-world perspective to international law.
International Law: The West vs. the Third World
Since the 18th century, global events have been rich with narratives of dominance, manipulation, and subjugation schemed and masterminded by the Western world, as reflected by the application of international law in the context of the people of third-world countries. During this time, international law has been constructed and reconstructed to favour Westerners or to safeguard their activities and undertakings in an unequal world. The general equality gap between the Global North and the Global South reflects this. International law has been a source of contention for the States of the South since it has guided the operations of the North and the South, which are unequal in many respects – political, economic, and military, for example. The problem isn’t only that the Global North is more developed than the Global South; it’s also that international law was created by the former (Global North) and is constrained by their prejudiced interpretation. Contribution of International Law to Development, Paper presented at the Fifteenth Annual Conference Canadian Council on International Law, Ottawa (1986) highlighted this by stating that because the new Asian and African states’ economies are less developed than their Western counterparts’, their citizens have a lower standard of living than the norm for Western Europe and North America. In its early phases, international law was formed by states who shared more or less identical economic development requirements and supported the colonial premise. As a result, it has been natural for some of the new States to dispute some standards of international law, just as the Latin-American States did at the Hague Conference of 1907, with the subsequent contribution that those States had to make to the stability of the international order. There are a few places where Asian-African discontent has taken on a life of its own, but on the whole, the new States argue their cases by referring to international law, albeit their version of it.
In the past, Westerners used international law to legitimise or justify all of their acts of exploitation and subjugation in developing countries; for example, it has been documented that Westerners used international law to justify slavery, colonialism, and exploitation, or to drain the resources of developing countries, particularly Third-World countries subject to colonialism. In the modern era, international law is primarily used to protect, project, promote (3Ps), or safeguard the interests of Westerners. International law as a tool for fostering and maintaining colonial and neo-colonial domination of the Third World
What can be inferred from the term “Third World”
It might be prudent to begin by defining the term “Third World.” To begin with, this refers to a group of countries that share particular characteristics. The first world is made up of developed capitalist countries, whereas the second world is made up of socialist countries. The third world refers to the underdeveloped countries of Africa, Asia, and Latin America that were subjugated to colonial dominance. The superpowers are classified as the first world, whereas other developed countries such as the United Kingdom, Germany, Australia, and Canada are grouped as the second world. The third world consists of Latin American, African, and Asian countries that are underdeveloped.
The two separate definitions have a few elements in common, such as the third world’s characteristics. In all classifications, the concept of the third world is defined in terms of developed countries. Third-world countries are economically impoverished (though some, such as the Arab Gulf states, are wealthy), and they have a colonial history. While some of these countries have democratic institutions in place, others have been dominated by military dictatorships. There are also disparities in social structures among third-world countries, ranging from tribal communities to capitalist societies. Despite these striking distinctions, the term “third world” is not meaningless, as it aids in the classification of countries that emerged as a result of resistance to colonial dominance. In reality, because of their backgrounds, they all face identical issues. As a result, there are some common traits across Third World countries, which may be linked in great part to the fact that they were colonised and that colonisation brought about some fundamental changes in their cultures.
Colonialism and its impact in shaping International Law
International law is the major legal framework for fostering and preserving colonial and neo-colonial dominance in developing nations. This is consistent with the notion of scholars such as Anghie that essential international law principles, such as those governing territorial acquisition, recognition, state responsibility, and state succession, were designed to accommodate colonialism’s indispensability. Third-world people and their countries were compelled (without their consent) to become subjects of international law by the domineering tool of international law. In this context, the colonial overlords took control of the third-world states as sovereign entities, and the people in these states surrendered virtually all of their rights. In this context, a modern postcolonial study has emphasised the extent to which colonialism was not merely a problem of sovereignty, but also one that impacted citizens’ rights. This is apparent when one considers that the main purpose or raison d’etre of colonial governance was to address the colonizer’s racial and cultural inability to govern themselves. Colonial rulers viewed native conditions as uncivilised and in need of reform while denying colonial people citizenship and the associated rights to self-improvement.
International Law and the estrangement of the Third-World citizens
The kind of relationship that existed between third-world people and international law (a Western edifice) is such that it is directly or indirectly concerned with international law’s estrangement from third-world people, based on strings that strongly but inextricably connect or bond them with past, current, and future international law. Under global capitalism, the term estrangement refers to a kind of alienated, yet complex interaction that exists between individuals, society, and the essence of international law, as well as the steady transformation of international law into internal law. This exclusion of third-world people from international law is reflected in the relegated status of third-world people in international law history. This is because they were viewed as backward, crude, barbaric, and uncivilised during the early stages of international law, and so incapable of participating in the international legal order. The argument is made, for example, that African states lacked the legal authority to ratify treaties transferring their sovereignty to a European power. The creation of a Global State was marked by greater use of deception and ingenuity in the administration of international law to safeguard the interests of powerful Westerners than in the past when legitimacy was acquired via the use of force.
The colonial period is a clear example of how international law’s notions of justice have been infiltrated to ensure not only the appropriation of the rights of people in third world countries but also the enslavement of the greater part of humanity and the use of division to maintain colonial control.
The colonists used the divide and rule strategies to co-opt several third-world colonies, but this system of indirect rule destabilised the third-world countries. Even though the main colonial powers in third-world colonies were democratic countries, colonial control did not encourage the ideals necessary for good governance in these countries. First and foremost, the institutions they established were dominance apparatuses. They emphasised functional utility, law and order, but not involvement and reciprocity because they controlled huge areas with diverse populations. Access to the colonial order was also restricted, and it was kept away from the scrutiny and inspection of the people it claimed to control. A distant, bureaucratic, and patrimonial type of politics flourished under a state that routinely disregarded domestic legal standards, democratic beliefs, and the normative facet of governance.
Controlling Third-World economic relations using International Law through the policies and actions of International Financial Institutions
International law and the economic liberalisation of the Third World
There has never been a time when the much popular international economic liberal movement was taken seriously by third-world countries; rather, the international economic law regime is controlled by Western countries through international financial institutions, which initiate and implement policies and actions that continue to foster third-world underdevelopment. Since third-world countries were deemed not to have personality in international law, their interests have been disadvantaged from the start because they did not have a say in defining the previous international legal order’s standards. This has had a significant impact on the current international legal order, notably in the field of third-world economic liberalisation. In this framework, international law has been utilised to re-allocate the sovereign economic powers of third-world countries to international financial organisations, thus constructing and reconstructing the meaning of sovereign states. This severely restricts the ability of third-world countries to pursue independent, meaningful, and self-sufficient development.
International economic liberalism is one of the most potent tools of the international economic law agenda pursued by Westerners through the auspices of international financial institutions to keep third-world countries under their control and subjection. The Western justification for the international democratic and economic liberalisation agenda is that it will aid in reducing the resource gap in the third world’s Less Developed Countries (LDCs) by enhancing trade balances and encouraging net capital inflows, as well as eradicating poverty and improving economic development in developing countries. Hence, the growing relevance of international organisations such as the G7, IMF, and World Bank in the post-Cold War period reflects the influence of liberal economic internationalism. As a result, the principal goal of these organisations’ activities became the provision of aid and loans to impoverished communities as a method of eradicating hunger and disease in the Third World.
However, it has been argued that events in the developing world provide us with some critical reasons why attempts to correct the situation (of transparent inequality between Westerners and Third World as a result of exploitations and injustices caused to the latter) by encouraging increased foreign borrowing have contributed to the problem of the debt crisis in the developing world.
These powerful multinational entities, whose guiding philosophy is free trade liberalism, impose free-market restrictions on underdeveloped countries. They lock peripheral states into involuntary agreements that force them to lower their protective barriers (GATT and NAFTA, for example), preventing them from developing trade profiles that differ from the model dictate.
The nature of the obligation imposed on the adoption of the agreements that make up the Final Act of the Uruguay Round of Trade Negotiations, which lacked transparency, is good proof. The Uruguay Round agreements appear to have provided little benefit to third-world countries. The International Monetary Fund (IMF) and the World Bank condition the provision of finance (or, more accurately, debt) to third-world developing societies on their unilateral acceptance of free-market rules for their economies, a condition that many third-world countries call the Structural Adjustment Programme (SAP). In Africa, for example, SAP failed the majority of Nigerians, resulting in enormous unemployment. Kenya has also expressed its dissatisfaction with the IMF and the World Bank for imposing these policy changes on it. Weeks of demonstrations rocked Uganda in the early 1980s, as industrial workers and students took to the streets to protest President Milton Obote’s IMF-imposed economic programme, and in 1990, Benin Republic President Matthew Kerokou was deposed following a wave of anti-SAP rioting.
It may be claimed that it is no accident that governments that have continued to function well (e.g. Botswana) have never had to undergo the unpleasant SAP treatment. Therefore, poor countries are perpetually de-capitalised, and their economies rely heavily on decisions made by Westerners in New York, London, Paris, and other metropolitan centres, which are then implemented through international institutions.
The actions of these financial organisations, which were governed by international economic law, aimed to keep neocolonialism alive in third-world countries. When you consider that the IMF was founded as a purely European institution, this point becomes clear. The IMF offered the impression of effectiveness during its early years, helping to restore European currency convertibility (1948–1957) and later assisting European economies in their adjustment (1958–1966). Despite the formation of Special Drawing Rights (SDRs), the fund failed to preserve stability after 1967; parity adjustments were many after that date: devaluation of the Pound and the Franc, revaluation of the German Mark and the Japanese Yen, floating off the price of gold, and so on. The end of the Bretton Woods mandate may be deemed the introduction of the General System of floating currencies in 1973. The IMF’s continued existence was put into question at one point. The institution survived by taking on new responsibilities, including management of unilateral structural adjustment in third-world developing countries and, beginning in the late 1980s, intervention in several third-world countries to ensure their reintegration into the international monetary system.
Imperatively, and based on the foregoing findings, one could be prompted to wonder why an institution (the IMF) that had previously failed to deliver in Europe was drafted to lead the economic recovery of Africa and the rest of the developing world. Surprisingly, and seemingly ignorant of the IMF’s inefficiency, Western governments proceeded to implement the institution’s recommendations by granting loans/aid to any third-world countries that adhere to the IMF’s economic liberalisation principles.
International development law and the third world
One of the reasons for the abysmal failure of the (international) law and development movement at its inception, which scholars have neglected, is that the package or programme included no development scholars, expertise, or professionals from the third world; rather, as a complete package of the West, it was carried out solely by Western scholars and agencies. There is now no agreement or uniformity between the development goals projected by leaders of third-world countries and those projected by leaders of Western industrialised countries, posing severe problems to law and development as a movement and in reality.
More specifically, Westerners have continued to harness international development matters in ways that contradict the development and other domestic interests of the third world through the International Financial Institutions (IFIs) and other international institutions that they control. Their approach to international law and development in the third world is mostly based on situations or experiences in the Western and developed worlds, which are either unique from those in the third world or aim to achieve too many broad-ranging development goals.
The road ahead : thoughts on TWAIL research agenda
The norms of what are acceptable goals and what is judged as good academic work significantly limit the identification of TWAIL’s future endeavours. It forces academia to play a self-fulfilling function, in that the protocols shame individual academics into envisioning only specific types of social relationships. The protocols are held up as models of clear thinking for those who adopt them. Dissenting academics, on the other hand, are subjected to a range of social and peer pressures to dampen their critical energies. Even the most powerful people are incapable of being daring and courageous in assessing current trends and inventing alternate possibilities. In addition to the ideological and substantive objectives already stated, certain third-world researchers should focus on the following topics.
Increasing transparency and accountability of international institutions
International law does not foster democracy today, either within countries or across borders. Those who want to change the current condition of the connection between state and international law must first identify the barriers to democracy in the domestic and transnational arenas, then drive the global democratic agenda forward. The path to global democracy will not follow a straight line. Instead, it will be the consequence of key actors such as states, international organisations, and transnational companies gradually strengthening their transparency and responsibility. There is still a lot of work to be done in this area. It is necessary to further expand this concept and the law (either in the form of a statement or a convention) on the subject of international organisations’ responsibilities. This would make powerful institutions like the IMF, World Bank, and WTO, among others, accountable to the world’s poor. In this regard, it is also critical to democratise decision-making inside international institutions such as the IMF and the World Bank, which have come to wield unparalleled power over the lives of ordinary people in the developing world. This need answers that combine a strong dose of realism with a strong desire for change.
Increasing accountability of Transnational Corporations
There is a range of mechanisms that can be taken to hold transnational corporations (TNCs) accountable under international law. The steps could include:
- Adoption of the draft United Nations code of conduct on TNCs;
- Assertion of consumer sovereignty manifested in a boycott of TNC goods that do not adhere to minimum human rights standards;
- Monitoring of voluntary codes of conduct adopted by TNCs in the hopes of improving their public image;
- The use of shareholders rights to draw attestation;
- The creative use of domestic legal systems to expose TNC coercive activities; and
- Criticism of organisations such as the International Chambers of Commerce for advancing TNC interests at the expense of regular citizens’ concerns.
All of these measures necessitate international law scholarship’s critical engagement.
Making effective use of the language of rights
It is necessary to make appropriate use of human rights language to protect the interests of the poor and marginalised. The recent resolutions made by several human rights organisations highlighting the problematic parts of international economic regimes have the potential to win concessions from the government and the private sector. The ramifications of these decisions must be thoroughly examined and applied to the international and national legal systems. A second related responsibility is to reveal the first world’s hypocrisy when it comes to the application of international human rights and humanitarian law.
Injecting people’s concerns into non-territorialized legal systems
The formation of global law without the State is both empowering and concerning in terms of international law development. The tendency must be examined from the point of view of the people. There is still a lot of work to be done in this area. Simultaneously, it is necessary to investigate “the contradiction between the geocentric legality of the nation-state and the new egocentric legality of private international economic agents” to ensure that the interests of people in the developing world are not compromised.
Personal opinions and suggestions
Only Western countries contributed to the development of international law when it was first drafted. Though certain reviews and changes have been made to reflect changes in global events that affect the development of international law and the dynamism of the international system, International conventions, it is claimed, should be communicated in various continents around the world. Each State in the world (as a prominent actor) should have two representations (political and legal specialists) in international law. International law should be re-drafted in these treaties to represent the legal and political voices of the States in the international system.
The emergence of new international law from these global conventions, with full representation and participation from big, small, rich, and poor countries, will be a critical step toward reducing global tensions and establishing global peace and security. As (founding fathers) of each State and continent, we will understand and accept the weight of international law and will be able to say to ourselves and future generations, “Yes, it is our international law, we participated in drafting it,” rather than “a global law made by the Westerners,” as it is currently conceived by the third-world category.
In international relations, international law has always served the objectives of powerful social groups and states. Dominance, on the other hand, can coexist with varying degrees of autonomy for dominated States, as history has shown. During the colonial period, the conquered countries’ autonomy was completely and openly denied. The actuality of dominance in the age of globalisation is better understood as a more stealthy, complex, and cumulative process. An expanding body of international rules, institutions, and practices is coalescing to destroy third-world countries’ independence in favour of transnational capital and powerful states. The transnational elite’s economic and political objectives are currently not directly translatable to international legal norms. The illusion of progress must be maintained, as must the international legal system’s internal coherence. Furthermore, individual legal regimes must make some concessions to poor and marginalised groups to diminish resistance to them in the third world as well as in the first world, in the face of changing global consciousness. The contradictions that characterise contemporary international law are perhaps best exemplified in the field of international human rights law, which codifies a range of civil, political, social, cultural, and economic rights that can be invoked on behalf of the poor and marginalised, even as it legitimises the internationalisation of property rights and hegemonic interventions. It expresses the hope that the international legal system can be used to provide some relief to those in the third and first worlds who have been suffering for a long time.
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