International law is today displacing national law in significance. It is no longer a law which concerns itself with some select issues of war and diplomacy but aspires to control and regulate central aspects of the economic, political and cultural life of sovereign States. Indeed, international law is today the chosen instrument of Northern domination. It is the medium through which third world countries are seceding sovereign economic and social space to international institutions such as the IMF, World Bank and WTO. International law thus 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.
A gamut of international laws have come to dictate the content of national laws in crucial areas of sovereign decision making such as foreign investment, technology, trade in goods and services, monetary policy, environment, and labor. Thus, for instance, the developed world has insisted in the last two decades on the adoption of legal instruments to free transnational capital of spatial and temporal constraints. Hundreds of bilateral investment protection treaties, the establishment of Multilateral Investment Guarantee Agency, the World Bank Guidelines on Foreign Investment, the Agreement on Trade related Investment Measures, the Agreement on Trade Related Intellectual Property Rights, the General Agreement on Trade in Services, and the conditionalities imposed by the IMF are steps in this direction. In the near future the Northern States may seek the adoption of a Multilateral Agreement on Investment through which they will attempt to consolidate and advance these gains. This becomes clear from the inclusion of the subject of trade and investment on the agenda of the Doha Round of Trade Negotiations.
On the face of it, international law agreements or rules have been voluntarily accepted by individual third world countries. However, there acceptance is "voluntary" only in the formal sense. Often third world countries have no choice to accept and implement the concerned rules (e.g., the conditionalities imposed by the IMF). In other cases various means have been used to get third world countries to accept particular regimes. This was the case, for example, with the GATT Final Act of the Uruguay Round of Trade Negotiations. Mention may be made in this respect of the misinformation that third world countries stood to gain from them, the use of a single undertaking mechanism, and extraneous economic and political pressures to compel the acceptance of inequitable agreements. Finally, the ruling elite of third world countries willingly collaborate with Northern States and accept unfair agreements without consulting their own people.
The result is that the process of globalization has had deleterious effect on the welfare of third world peoples. Thus, three billionaires in the North today hold assets more than the combined GNP of all the least developed countries and its 600 million people. In sum, the economic and political independence of the third world is being undermined by policies and laws dictated by the first world and enforced by international institutions it controls.
On the other hand, third world international lawyers have 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 third world international law scholars, and the problems of doing research in the poor world 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.
The lack of appreciation among the community of national lawyers of the growing role of international law and its intricacies explains the absence of critical thinking among them. There is an urgent need, therefore, to create a global network of international and national lawyers to resist unjust international laws through collective endeavor. The global legal network would facilitate and participate in the resistance to unjust international laws through undertaking a systematic examination of, and opposition to, contemporary international law and institutions which do not serve the welfare of the third world peoples. The network could assume the form of "separate chapters" in each country which are united by the multiversity web site. The proposed resistance is to be non violent in nature and be informed by secular and democratic values. The global legal network would seek to involve, or participate in movements initiated by, both new social movements (e.g., environment, women, and human rights movements) and old social movements (e.g., labor movements). The objective of the resistance would be to regain economic and social space for independent and self reliant development of third world countries and to establish a democratic and just world order.
More specifically, from the perspective of international law, there is inter alia a need to seek to impose duties on transnational corporations towards host countries, stress the need for democratization and accountability of international institutions, call for regulating hyper-mobile and marauding international finance, filling the empty concept of sustainable development with progressive content, and exposing the neo-liberal slant of human rights discourse. In addition, an international law of distribution based on the ethics of solidarity needs to be given shape. There must be, for instance, insistence on the grant of the special and differential treatment principle to third world countries. There should also be a call for allowing greater mobility of labor in keeping with the growing mobility of goods, capital, and services.
The national component of the global network of lawyers needs to address problems and concerns which play themselves out at the domestic level. Much of international law is implemented on the ground at the national level. The intervention of the national legal community is, in other words, crucial in defending the interests of the ordinary citizen. Above all, it is important to ensure that the process of implementing international laws do not lead to trampling of the human rights of the marginal and oppressed sections. The United Nations Human Right Commission has, in this respect, significantly reminded all States 'of the primacy of human rights obligations over economic policies and agreement'. The community of national lawyers also need to come to the assistance of resistance movements as the neo-liberal State tends to meet resistance with repression.
Powerful States in the international system normally exercise dominance through the world of ideas and laws and not through the use of force. But from time to time force is used both to manifest their overwhelming military superiority and to quell the possibility of any challenge being mounted to the prevailing 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. On the other hand, from time to time human rights discourse has been used to legitimate intrusive intervention into the internal and external affairs of States. The illegitimate use of force and the hypocrisy and selectivity of Northern States in the implementation of human rights and humanitarian laws therefore needs to be exposed.
However, through all this, 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 international 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 third world States in the international system. What is called for is the transformation of its content. Therefore, a critique that is not followed by construction amounts to an empty gesture. Imaginative solutions are called for in the world of national and international laws and institutions if the lives of the poor and marginal groups are to be improved. A global network of progressive international and national lawyers can perform this task effectively.
All this calls for a concrete programme of action. It may include the following overlapping activities: organizing a network of national and international lawyers concerned with issues of social justice, the production of critical research papers on crucial aspects of contemporary international law, intervention in domestic courts to protect the rights of ordinary citizens against unjust international laws, the organization of meetings to disseminate knowledge about the growing web of international laws, assembling critical bibliographies and materials on different aspects of international law, devising alternative syllabus for international law courses taught in the law schools, and designing an alternative law school with a focus on the use of legal education for realizing the goals of equity and justice.
Dear Prof. Chimni,
Greetings from Penang.
Thank you for your e-mail letter dated 18 April, 2002.
The paper is, on the whole, adequate as it deals with the important issues relating to International Law and its impact on Third World societies, the need for a global network and its objectives. However, I would like to make the following suggestions for your consideration.
1. Page1, paragraph1, line 3. AS trade and financial liberalization has highly damaging impacts on local cultures, the word ‘cultural’ should be added after the word ‘political’.
2. Page1, paragraph3. This should be broken up into two paragraphs---- the first one ending at line10, after the word ‘agreements’, and the second one beginning from the word ‘ Finally’ in line10. The first paragraph deals with the lack of voluntariness in the making of treaties and the second one with the lack of consultation between national governments and the people before entering into treaties which could have serious adverse implications for the people.
3. Page1, paragraph3 which deals with the violation and selective use of International Law by the powerful states should come immediately after the last paragraph on page1. Recent U.S. attempts to weaken international law, e.g. unilateral abandonment of the ABM treaty, sabotage of the biological weapons convention, and rejection of the Kyoto protocol on climate change, the UN treaty on gun running and the international criminal court.
4. Page2, paragraph2. The first sentence appears to exclude those whose resistance to imperialism is inspired and guided by religious rather than secular values. I do not think it is in our interest to place such restriction. Therefore the word ‘secular’ should be deleted. Also, in line5 ‘cultural’ should be added after the word ‘social’
5. There should be a paragraph, immediately after paragraph3 on page2, on the activism to be sponsored by the network, e.g. awareness raising, education, public campaigning, direct legal challenges in courts etc.
Kind regards,
Mohideen.
The paper is good in analysis of the problem, in stating the problem of international law. However very little is suggested in terms of a concrete programme of action to remedy the situation. Only one para deals with the proposed global and national network of lawyers for international justice. This para too, besides proposing the network, does not do much beyond that. Could Chimni remedy this situation? I know that he is not an activist, an organizer or a strategist, but he is now called upon to do all these.
I would suggest the following proposals be incorporated:
We immediately get law students who will do three month research projects on the crucial sentence: "A gamut of international laws dictate the content of national laws in crucial areas of sovereign decision making such as foreign investment, technology, trade in goods and services, monetary policy, environment, and labor." This means we need five or six students, each can take one topic.
The results of these analysis are then placed before a group of lawyers prior to their being called for a meeting to discuss them.
We can first try these proposals in Delhi which does not require Chimni to move about too much. The first meeting too could be for India only, and may result in the setting up of an India chapter. Similarly, with the same material, Mohideen could organize a similar meeting in Malaysia.
In the meanwhile, all this material can go up on the Web through the Multiversity web page, but we can also directly target individual lawyers who can be approached. There are not that many lawyers doing international law anyway. One student can be put on this job, writing letters to all Bar Councils in third world countries, and soliciting people to participate in the project in terms of building capacity to represent their countries in international fora.
Some of these themes can be discussed through law journals like The Lawyers (edited by Indira Jaising). In fact, I suggest she be closely involved in this project if possible.
Only after this basic preparation is done, which should not take more than six months, should there be a meeting to set up a global network of lawyers and NGOs on international law issues. This network can then take steps to establish country chapters in those countries were none exist.
The network can then open an international discussion group like the e-law network in which lawyers and activists dealing with environment law get assistance in individual cases from the international legal community.
Chimni will know that getting most lawyers to cooperate and collaborate on this is going to be futile, since most lawyers are terribly busy with cases, almost all of them are overloaded since they take more cases than they can reasonably handle, and can participate in workshops and meetings only when courts are on vacation (though they go off on vacations as well at the same time).
However, the setting up of a think-tank and then a network on international law will generate a good body of material which can be disseminated through lectures, books, journals, bar council bulletins, individual mailings, so that awareness is built. After a good even if small team is constructed, it can become the basis for playing a watchdog and monitoring role, writing to important bar institutions, raising questions, asking for actions, putting pressure to get things done. NGOs can be brought in, since most of them spend time lobbying their MPs and Parliament. If as Chimni says, Parliaments are now redundant, NGOs may have to lobby with the real masters on such issues which would induce them to join and maintain links.
Chimni should also get international bodies like Amnesty International to work on such issues because they can tap extensive contacts and resources.
To sum up, we need the following action plan:
Short research papers on major aspects of international law.
Circulation of this research in an attractive format to select law persons.
Meetings to discuss these issues at India and Malaysia level.
These issues to be posted on the Multiversity web page.
Research on bar councils and people working on international law in third world countries to be identified.
A network meeting to be held after we have a constituency.
Issues raised to be disseminated widely through various means.
Network secretariat to act as a permanent watchdog which will intervene to critique international law situations that demean democracy and human rights.
Secretariat will assign and commission papers from lawyers on how to rmedy international law injustice involving important institutions like the International Commission of Jurists, the International Court of Justice and law institutes