Chimni, B. S. (2006). Third world approaches to international law: A manifesto.

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 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 north-
south 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 'domi-
nation' 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
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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 impera-
tive 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).

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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 differ-
ences 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 underdevel-
opment 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 consolida-
tion 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.),
Perspectives on Third World Sovereignty: The Postmodern Paradox 13, at 15 (1996).
See P. Worsley, The Three Worlds: Culture and World Development 306 (1984).
10 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.
11 See N. Harris, The End of the Third World: Newly Industrializing Countries and the Decline
of an Ideology ( 1987).

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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 dia-
logue 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:

12 See Development" in P.Worsley (Ed.), The New Introducing Sociology 2 (1987).

13 See C. Graham, Comparative Sociological and Social Theory: Beyond the Three Worlds 8
(1997).
14 In 1955 an Asian African Conference was held in Bandung in Indonesia. "The importance of
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.

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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 collec-
tive 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 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).
16 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).

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material and ideological reconstitution of the relationship between state sover-

eignty 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 facili-
tated 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 accommo-
date 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 trans-
formed 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 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 ).
18 Id., at 63.
19 See F. Braudel, Civilization and Capitalism 15th-18th Century, Vol. II, 513 (1979).
20 See T. Franck, The Emerging Right to Democratic Governance, 86 American Journal of
International Law 46, at 46 ( 1992).
21 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).

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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, envi-
ronment etc) to international institutions that enforce the relevant rules. 22 But
despite the relocation of sovereign powers in international institutions, interna-
tional 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, articula-
tion and enforcement through international law or the fact that the change in
the form and substance of property rights is brought about through the inter-
vention 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 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.
23 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.
24 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).
25 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

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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 geographi-
cal 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 infor-
mal'. 29 In this regard, international law inter alia lays down rules with regard
to the sales of goods, market access, government procurement, subsidies and

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.
26 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).
27 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).
28 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).
29 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).

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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 com-
modities 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 arrange-
ments, 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 econo-
mies. 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 See B.S. Chimni, (2000) and (2002), supra note 27.

31 See B.M. Hoekman and M. Kostecki, The Political Economy of the World Trading System:
from GATT to WTO 174 (1995).
32 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).
33 See B. Cohen, Money in a Globalized World" in N. Woods (Ed.), The Political Economy of
Globalization 77, at 84 (2000).
34 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.
35 See Bagwati, supra note 25, at 7-12.

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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 contra-
diction 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 institu-
tions 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 See C. Douzinas, The End of Human Rights: Critical Legal Thought At the Turn of the Century
1 (2000).
37 See G. Teubner, The King's Many Bodies: The Self-Destruction of Law's Hierarchy, 31 Law
and Society Review 763, at 770 (1997).
38 See R.A. Wilson, Introduction in R.A. Wilson (Ed.), Human Rights, Culture and Context:
Anthropological Perspectives 1 ( 1997).
39 See B.S. Chimni, International Law and World Order: A Critique of Contemporary Approaches
291 (1993).
40 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: <http://www.oau-oua.org/Document/ipep/
ipep.htm>.
41 L.L. Lim, More and Better Jobs for Women: An Action Guide, Geneva: ILO 19-20.
42 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.
43 Id., para 35.
44 Id., para 35.

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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 interna-
tional 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, there-
fore, 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 jurisdic-
tion in diverse manner, as is reflected in developments ranging from the
Pinochet case to armed humanitarian interventions. 50 While these develop-
ments 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 subordi-
nate 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 Id., para 39.

46 Id., para 28.
47 See D. Schiller, Digital Capitalism: Networking the Global Market System 72 (1999).
48 See M. Shaw, International Law, 3 ed. ( 1997) and B. Chimni, (2002), supra note 27.
49 See J. Weiner, Globalisation and the Harmonisation of Law 195 and 188 ( 1999).
50 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).
51 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).

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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 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.
53 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).
54 See Teunber supra note 37, at xiii.
55 Id., at 3 and 8.
56 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.
57 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

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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

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.
58 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.
59 See B.S. Chimni, Marxism and International Law: A Contemporary Analysis", Economic and
Political Weekly 337-349 (February 6, 1999).
60 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).

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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 transna-
tional capital but to the disadvantage of third world peoples. The entire ongoing
process of redefinition of State sovereignty is being justified through the ideolog-
ical 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).

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the same, what are the standards by which scholarship is to be assessed? It is

therefore important that third world international lawyers refuse to unquestion-
ingly 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 particu-
lar 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 See P. Bourdieu and L. Wacquant, On the Cunning of Imperial Reason, 16 Theory, Culture &
Society 41-58, at 51 (1999).
63 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).
64 See B.S. Chimni, Marxism and International Law: A Contemporary Analysis, Economic and
Political Weekly 337-349 (February 6, 1999).
65 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).
66 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

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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 interna-
tional 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 concep-
tion 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

Transformative Social Projects in International Law, 5 Buffalo Human Rights Law Review
107-177, at 107 ( 1999).
67 Id., at 78.
68 See B.S. Chimni (2000), supra note 27, at 244.
69 See B. Chimni, Post-conflict Peace Building and the Repatriation and Return of Refugees:
Concepts, Practices and Institutions (forthcoming in 2002).
70 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.
71 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).
72 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).

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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 institu-
tions. 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 See C. Douzinas, The End of Human Rights: Critical Legal Thought At the Turn of the Century
315 (2000).
74 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).
75 Id., at 173.
76 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).
77 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).

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

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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 real-
ism) 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 move-
ment, 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 See M. Foucault, Nietzsche, Genealogy, History" in Paul Rabinow (Ed.), The Foucault Reader
76-100, at 85 (1984).
82 Id., at 86.
83 Id.
84 See J. George, 'Back to the Future'?" in Greg Fry and Jacinta O'Hagan (Eds.), Contending
Images of World Politics 33-48 (2000).
85 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).
86 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).

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(NGOs) with their ability to reach out through using modern means of com-
munication 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 mobil-
ity of capital and the intensification of both inter-state and intra-state interna-
tional 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 Id., at 16.
88 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.
89 Id., at 45.
90 See Amin, supra note 15, at 99.
91 Id.
92 See Wallestein, supra note 86.
93 Id., at 53.
94 Id., at 52.

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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 disre-
garded. 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 See Harvey, supra note 88, at 49.

96 Id.
97 See S. Gopal, American Anti-Globalization Movement, Economic and Political Weekly, (August
25, 2001) page3226-3233.

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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).

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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 See I. Brownlie, Principles of Public International Law, 4th ed., 701 and 433 (1990).
100 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).
101 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.
102 See the Irene Report, Controlling Corporate Wrongs: The Liability of Multinational
Corporations: Legal Possibilites, Strategies and Initiatives for Civil Society, (2000), online:

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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 appro-
priate 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.

< 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).
103 Article 8(j) of the Convention on Biological Diversity, 1982 states:
Each Contracting Party shall, as far as possible and as appropriate:

(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 applica-
tion 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).
104 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'.

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

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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 conceptu-
alized as a more stealthy, complex and cumulative process. A growing assem-
blage 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 interna-
tional 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).

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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 per-
haps 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.

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