LAWYERS FOR INTERNATIONAL JUSTICE

A Briefing prepared subsequent to the Penang 2002 meeting
B.S.Chimni

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 and political 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 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 it 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, their 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 subterfuges 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 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 ornor 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 therefore crucial in defending the interests of the ordinary citizen. Above all, it is important to ensure that the process of implementing international laws does 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.