Attitude of Asian African States Towards Traditional International Law Characterized As Having A Pro
Even though international law and colonialism are siblings, they operate in two entirely different ways. While international law seeks to regulate the behaviour of states in an apparently impartial manner, colonialism is aimed at exploiting some states in order to serve the interests of other states. With the expansion of the European community of states to include Asian- African states after the Second World War, international law was no longer to be dominated by colonialism. The Asian - African states that had just been freed from the suffering at the hands of colonialism were naturally hesitant about the idea of embracing its sibling. International law was forced to respond to this call in order to preserve its image of being universal.
The notion of a community comprising of states can be traced back to the Treaty of Westphalia, 1648, which signified the establishment of a European community of sovereign states the members of which recognized each other as having equal standing and guaranteed each other their independence. However, international law was not the only child of the Treaty of Westphalia. The need of European states to acquire new lands to settle their surplus population coupled with the inability to acquire the lands of other European states necessitated a policy of imperialist expansion in the Asian- African world. The birth of international law was thus followed by that of its equally significant sibling - colonialism. These two siblings have since shared a symbiotic relationship with colonialism providing the impetus for the discipline of international law and international law furthering the cause of colonialism.
However, colonial relations still over shadowed the international law. This arrangement suited the western world perfectly. International law ostensibly proved its credentials as an impartial system of regulating the behaviour of states while colonialism continued its exploitative activities from underground by using international law as a front. This state of affairs continues to this day.
It is in this context that the third world approach to international law has emerged in order to achieve the three objectives of deconstructing, understanding and unpacking the uses of international law as a means of perpetuating colonialism, of constructing and presenting an alternative legal framework for international governance and of eradicating the conditions of underdevelopment in the third world. On one end of the spectrum, the nationalists see no hope for developing countries within the present structure of international law without fundamental restructuring of the discipline and of international economic and political relations whereas on the other, the integrationists see promise in developing country participation in international law through legal reform.
It is pertinent to note that due to geographical, political, social, cultural and other factors, the ex- colonial countries exhibit great differences, not only in their ways of life, but even in their thinking and practice. Having widely different interests in different areas, their attitudes can hardly be similar on all the points. In any attempt to understand the attitudes of these countries, therefore, this diversity must not be overlooked. No generalization can be entirely accurate and it is not easily possible to generalize. However, this does not mean there are no common attitudes or tendencies among most of these countries toward certain problems of international law which has resulted more or less from their common experiences under the colonial rule, their struggle for independence and their present under-developed and economic nature. In order to appreciate the attitudes of these countries toward most problems of international law, it is necessary to keep in mind the history of the development of the present system of international law, since most of these attitudes are affected by the history of international relations during the last hundred years or so when the traditional law was consolidated and systematized in its present form.
The project first examines the relations of power that characterized colonialism in the nineteenth century and then demonstrates that the same relations of power continue to subsist in contemporary international law in a different form, leading to the inference that colonialism has merely undergone a metamorphosis rather than died away. Having established that colonialism is as alive today as it was in the nineteenth century, the project then examines how third world approach to international law can ensure that international law rids itself of every last vestige of colonialism in any form in order to establish a truly post-colonial international community.
DEVELOPMENT OF INTERNATIONAL LAW
The process of authoritative decision called international law, inherited by the world-wide community of States, owes its genesis and earlier growth to the interactions among the Western European countries during the last four centuries and is naturally coloured by their unmistakable influence. The Euro-centric nature of international law in the nineteenth century is acknowledged by most contemporary scholars of international law. International law in the nineteenth century was seen as applicable only to European states and not to non-European ones. This distinction was maintained by constructing the notion of ‘civilization' and making the recognition of a state's sovereignty contingent upon it. Only civilized states were regarded as sovereign while uncivilized states were not. This meant that only civilized states were guaranteed their independence while uncivilized states were not. Civilization thus became a precondition for sovereignty and its associated guarantee of independence.
At the same time, the distinction between civilized European states and uncivilized non-European states was crucial to ensure that relations between them remained outside the purview of international law and hence could not be compromised upon. This quandary resulted in the Berlin Conference of 1884-85 at which the self-proclaimed civilized European states took upon themselves the responsibility of civilizing the uncivilized non-European states with the ostensible aim of equipping them to become members of the international community of states. ‘Civilization' thus became international law's justification for colonialism.
This was achieved by the two-stage process of the deliberate exclusion of non-Europeans from international law followed by their forced assimilation through conquest by European states. International law also acted as tool of subjugation by upholding the validity of treaties of cession between European and non-European states even though such treaties were both products of unequal power as well as embodiments of unequal obligations.
The primary driving force behind colonialism was not political but economic in nature. Consequently, its impact on non-European states was also more economic that political. The non-European states were viewed both as a source of cheap raw material for the factories of Europe and as a market for the products of those factories. Thus, relations of power that characterized colonialism in the nineteenth century were considerably imbalanced in favour of European states vis-à-vis non-European states. Non-European states were placed in the unenviable of position of either complying with European standards of civilization and thereby enabling the furtherance of European interests or facing annexation by the European states. Colonialism in the nineteenth century was also hegemonic in that it portrayed itself as orchestrating the ostensibly normative cause of civilization while actually furthering the political and economic exploitation of non-European states by European states. International law played a crucial role in this process by serving as an ideological tool in the hands of the European powers.
POST COLONIAL INTERNATIONAL LAW
Since the establishment of the United Nations Organization decolonization has been the new thought in realm of international law. The intensified drive towards decolonization in the three decades immediately following the establishment of the UNO may tempt one into drawing inference that international law has disassociated itself from its colonial past. However, a closer scrutiny of contemporary international law reveals that this is far from the truth.
The Montevideo Convention, 1933 lays down the criteria for determining the statehood of an entity, namely a permanent population, a defined territory, government, and capacity to enter into relations with other states. According to the declaratory view of statehood, an entity attains statehood as soon as it fulfils the above criteria and its recognition by other states merely declares the fact of their existence. However, according to the constitutive view of statehood, an entity can only be conferred legal personality through its recognition by other states and while the fulfillment of the criteria for statehood might lead to recognition, it is not an automatic consequence of the same.
The majority in this expanded world community consists of small, weak, poor, vulnerable, technologically and industrially underdeveloped, former colonies filled with resentment against their colonial rulers, and needing and demanding the protection of the international society. This new majority had new needs and new demands and they wanted to the law adjusted according to their needs. More important, while the earlier international society was extremely nationalistic and individualistic, and put the greatest stress on sovereignty and national independence, the present society, in spite of its vast horizontal expansion, has become extremely interdependent. The mutual interdependence of States has become the most important and all-embracing concept of the present society of nations .
Adhering to the constitutive view essentially permits already existing states to sit in judgment over the status of any entity seeking entry into the international community of states. It also enables existing states to ascribe their own meaning to the criteria for statehood. While the first two criteria are relatively free from this tendency, the last two are not. In ascribing meaning to the expression ‘government', there is a clear tendency towards favouring democratic governments over non-democratic ones. Similarly, the phrase ‘capacity to enter into relations with other states' reeks of notions of ‘civilization' that were so common in nineteenth-century international law. In this manner, the systematic exclusion of non-European states in the nineteenth century by characterizing them as uncivilized is duplicated in contemporary international law by characterizing unwanted entities as either not having a government or not possessing the capacity to enter into relations with other states, based on the existing states' views on what these criteria mean. This imposition of the traditional Euro-centric notions of nation-state on third world peoples has led to disastrous consequences.
It is not surprising to find Asian-African countries protesting against some of the old treaties and several established principles of international law. They signed several treaties during the colonial period as they had no and the traditional law was unsuitable to modernize their positions, they challenged them and demand their modification. They wanted to change the status quo in order to be able to share resources of modern civilization on an equal footing.
An example is how international financial institutions promote the interest of the developed nations also primarily because they are dominated by the members of these nations. Also these institutions in the garb of providing aid impose conditions on the developing countries which could be detrimental to them.
However, the due to considerable divergence of opinion amongst economists about the negative side-effects of the international financial institutions conception of development, the perpetuation of the set of economic policies commonly known as the Washington Consensus had to be supported by a more normatively attractive basis. The relatively wider normative appeal of the human rights discourse made it an obvious choice. The failure of the Washington Consensus was explained by constructing the notion of ‘good governance' and arguing that the implementation of the Washington Consensus must necessarily be accompanied by measures to ensure good governance in order to be effective in achieving the objective of development.
Establishing the linkage between the notion of good governance and human rights necessarily involved the characterization of the third world states as indulging in violations of human rights. The project of good governance was thus aimed at changing the world system by reforming the fundamental institutions of the recipient state.
In this manner, the civilizing mission of nineteenth century international law is duplicated in the mission of taking good governance to the third world propagated by contemporary international law.
This neo-colonial international law is no less exploitative than its predecessor. In fact, it carries with it the potential to invert the traditional relationship between political subordination and economic subordination in which the former was the means of ensuring the latter. Contemporary neo-colonial international law is now in grave danger of being utilized to achieve political or military subordination by means of economic subordination.
Defence of the legal rights sought by the developed nations, in the view of the Asian - African countries , is a reassertion of the political system it seeks to abolish. That seems to be the reason for the hesitation or refusal of these newly independent States to accept the jurisdiction of the International Court of Justice for the settlement of their disputes with some of the colonial Powers, such as in the Anglo-Iranian Oil Company case, or the nationalisation of the Suez Canal, or expropriation of Dutch proper-ties in Indonesia, or right of passage of the Portuguese authorities over independent Indian territory. As the International Court of Justice was expected only to enforce the "established legal rights " these former colonies did not want to go before the Court. They insisted that unjustified and inequitable political conditions should be eliminated through negotiations and agreements and law should be modified according to changed circumstances.
PARTIAL ACCEPTANCE OF IL
The affirmative reconstructionists see a fundamental restructuring of international law as the only way of cleansing international law from the taint of colonialism. On the other hand, the minimalist assimilationists see a struggle from within the prevailing structures of international law as a more effective way of pushing colonialism out from the realm of international law.
None of the States has ever denied the binding force of international law and they have in fact accepted a large part of it without any question. The Asian-African countries generally accept the old treaties concluded on their behalf by the former colonial Powers until they are modified, renegotiated or replaced with the consent of the other parties. After achieving its independence in 1947, India, for instance, considered itself bound by all the treaties concluded by the British Indian Government, except those which became inapplicable because of the partition of the sub-continent. A list of 627 such treaties and agreements was made binding on the successor independent India, some of which had been concluded by the East India Company as early as 1815.
Prior to attempting to formulate change in thought in perspective of third world's way of looking at international law, it would be apt to discuss briefly what exactly a ‘post-colonial' international law means. Some scholars have opined that the ‘post' in ‘post-colonial' designates neither clearly beyond nor after the colonial. Others, sharing a similar view, have construed it as denoting a continuation of colonialism in the consciousness of formerly colonized people, and in the institutions which were imposed in the process of colonization. However, it is submitted that this description of ‘post-colonial' is better suited to describe the ‘neo-colonial' rather than the ‘post-colonial'. Post-colonial, as envisaged in this project, describes the state of affairs where colonialism in all its forms and manifestations has been completely eradicated.
The obvious target of such transformation is the UNO. Despite the emergence of democracy as a widely regarded norm, the structure of the UNO suffers from a severe democratic deficit. This is because the General Assembly, which consists of all the members of the UNO, merely has the power to make recommendations to the Security Council, which consists of only fifteen members including five permanent members. The power to take action with respect to threats to the peace, breaches of the peace and acts of aggression is also vested with the Security Council.
While the noble aims of the affirmative reconstructionists are appreciated, they may be criticized as aspiring to lofty ideals without formulating any tangible and practical means for achieving them. The skewed relations of power that characterize contemporary international law are well known to all.
A renowned scholar of international law has opined that every violation of customary international law contains the seeds of a new rule. If this is accepted as correct, then it presents an opportunity for the third world to undertake an internal transformation of international law. This transformation may be undertaken in two stages. The first stage would involve identifying those norms of customary international law that reinforce the neo-colonial nature of international law. The second stage would involve repeated violations of these norms by third world states. This would have the effect of creating a new rule of customary international law that negates the earlier rule. Such a transformation has been termed by some scholars as one that seeks legitimacy through defiance.
However, this process of internal transformation of international law by seeking legitimacy through defiance is not without its shortcomings. Perhaps the most significant of these shortcomings is the problem of collective action of third world states. The diversity of interests among third world states is such that it would be extremely difficult to identify those norms that all the third world states find objectionable. At the same time, if only a few third world states act while others do not, then there is the risk that the consequences of such violation will be crippling. This is where the lofty idealism of the affirmative reconstructionists becomes important. It is necessary to establish a link between individual acts of defiance and the overall scheme of transforming the fundamentals of international law. The purpose of establishing this link is to ensure that even those third world states that are not directly affected by a particular norm stand by and support the cause of those third world states that are. This would also go a long way in staving off any backlash by the developed nations, who might be deterred from responding if the numbers are stacked heavily against them
A study of the history of the international law reveals that it has been inextricably linked with colonialism. This close association has had and continues to have a detrimental effect on the third world while working to the advantage of developed nations. The third world approach has emerged with the noble objective of creating a rift between these two siblings. Its success, while undoubtedly desirable, is not an easy task. The challenges facing in its endeavour are internal fragmentation, the problem of collective action among the third world states and the hindrances that developed nations are likely to pose.
It may be said, on the one hand, that it is in the interest of the newly independent countries to support the law and legal methods, as they are the weaker members of the international society and have most to gain from it. More important, they need scientific, economic and technological help from the industrialised Western Powers for the development of their as yet unexploited, underdeveloped economies. They must assure the Western countries of their good faith and best intentions. There is, of course, every reason to hope that they do understand the importance of this. Thus, during the debates in the General Assembly on the 1962 resolution relating to natural wealth and resources, they tried to allay all fears and doubts in the minds of the capital-exporting States about their adherence to international law and their future behaviour. While they were unwilling to limit their freedom with respect to property acquired by foreigners during the colonial period, that did not preclude their willingness to guarantee new investments and new agreements accepted by them on an equal basis.
The proposed plan of action for third world's approach to international law includes adopting a policy of seeking legitimacy through defiance in the area of customary international law in a bid to internally transform the discipline of international law without losing sight of the broader objective of fundamentally transforming its very basis. What remains to be seen is whether this approach can actually provide the proverbial twist in the tale of international law by freeing it once and for all from the shackles of colonialism.
An international legal order built on common interests, and which seeks to promote the well-being and fulfil the aspirations of the world-wide community of peoples, will naturally become the focus of wider loyalties.
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