International Law and Developing Countries
Summary and Keywords
The vast majority of states in the world today are “developing countries.” The most fundamental characteristic of a developing state is that its income is relatively low in comparison with that of an industrial country. Another characteristic is that they are former colonies. Developing countries are sometimes referred to as the “South” because the developed–developing division amongst countries corresponds roughly to the hemispheric division of the globe. Another related term is the “Third World,” which refers to economically weak countries and those countries undergoing decolonization. The relationship between developing countries and international law can be found in the disciplines of International Law, International Relations, and International History. There are three aspects of the engagement of developing countries with international law: the colonial past and contemporary continuities in international legal approaches and categories; attempts by newly independent Third World states that transform international law through the introduction of specific new legal principles; and whether structural impediments remain to the equitable participation of developing countries in international law. Meanwhile, the literature on the implications of the experience of developing countries with international law concerns the relationship of developing countries with the sources of international law as well as the international dispute resolution. The most obvious dimension to the bias of international law against developing countries is the historical one: international law served the interests of the colonizers rather than the colonized. Nevertheless, international law can also be used advantageously by the weak to resist the invasions of the strong.
Literature relevant to the relationship between developing countries and international law is necessarily located in more than one discipline, and can be found principally in International Law, International Relations, and International History. Within and across these disciplines, there are a number of relevant subfields, including postcolonial theory, poststructuralism, postmodernism, critical race theory, feminist international law scholarship, critical development theory, and critical Third World scholarship. International political economy – and its counterpart international economic law – as well as global environmental politics and international environmental law are particularly relevant to this topic. Of course, scholars writing on any field of international law – whether human rights, international humanitarian law, or state responsibility – may on occasion address the contribution of developing countries to international law or the reception of international law in developing countries.
In recent years a group of scholars has identified itself as TWAIL (Third World Approaches to International Law). Although not a unified group in the sense of agreeing on the content, direction, and strategies of Third World approaches to international law (Anghie et al. 2003:vii), TWAIL writers aim to enhance Third World scholars’ participation in, and influence on, the discipline of International Law. They have sought to distinguish themselves from some of the pioneering Third World scholars, who included Georges Abi-Saab, F. Garcia-Amador, R.P. Anand, Mohammed Bedjaoui, and Taslim Elias; TWAIL writers retrospectively group those influential scholars together as TWAIL I (see Anghie and Chimni 2003:79–80) and present themselves as TWAIL II. TWAIL II scholars have continued the call for justice of the earlier Third World scholars. They have been influenced by postcolonial scholarship and have focused not only on the state but on the peoples of the Third World. Madhav Khosla (2007) has argued that TWAIL scholarship is entering a third phase, characterized by a renewed focus on the role that powerful nations play in using international law to further their goals.
After a brief consideration of the terminology of developing countries, Third World, and the South as used in the literature on international law and developing countries, this essay will review contemporary understanding of three aspects of the engagement of developing countries with international law: the colonial past and contemporary continuities in international legal approaches and categories, attempts by newly independent Third World states to transform international law through the introduction of specific new legal principles, and whether structural impediments remain to the equitable participation of developing countries in international law. The essay will conclude by reviewing the literature on the implications of the experience of developing countries with international law for our understanding of the system of international law as a whole.
The vast majority of states in the world today are “developing countries” and more than 80 percent of people live in developing countries. The most fundamental characteristic of a developing state is that its income, usually calculated as gross national product (GNP) per capita, is relatively low in comparison with that of an industrial country. A second characteristic shared by most developing countries is that they are former colonies. Developing countries are sometimes referred to as the “South” because of the fact that the developed–developing division amongst countries corresponds roughly to the hemispheric division of the globe. Another related term is the “Third World.” This came into use in the 1950s to refer to those countries then undergoing decolonization, and economically weak countries in Latin America. The First World consisted of the rich industrialized countries, the Second World of those of the communist bloc, and the Third World of those not aligned with either side in the Cold War. Some scholars have rejected the term “Third World” as a remnant of the Cold War (see Berger 1994). “Developing country” is not a legal term per se, but it does appear in some treaties, most obviously those of the WTO and the UN Framework Convention on Climate Change. The term “developing” is sometimes criticized for assuming an ineluctable process of becoming more developed that does not accurately reflect the experience of most “developing” states. Both terms are sometimes deemed pejorative, but the term Third World remains in favor with many scholars of international law. In this essay, the term “developing country” will be used interchangeably with the Third World or South.
One of the dangers of any of these terms is that they may give a misleading impression of a homogeneous or unified group of states. This is not the case and never has been – consider, for example, the different interests of a small island state in the Pacific and the oil-exporting states of the Middle East. With the rapid industrialization of India and China the diversity of interests is increasing. While the vast majority of developing countries are former colonies, this is not true of about 10 percent, including Ethiopia, Liberia, Saudi Arabia, and Thailand. Some that were not colonies were nevertheless in the sphere of influence of a Western power and, although Latin American states were colonies, they obtained their independence in the nineteenth century. The vast majority of developing countries are in the southern hemisphere, but China, for example, which is usually classified as a developing country, is in the northern hemisphere. In recognition of the diversity amongst developing countries, they are sometimes divided into subgroups – according to, for example, whether they are net creditor countries or net debtor countries. The term “Least Developed Country” is used to refer to some 50 of the most vulnerable states, including Angola, Gambia, and Samoa, whose economies are obviously vastly smaller than those of China, India, Brazil, or Mexico. It is important to recognize that there is not only considerable diversity of wealth and circumstances amongst developing countries as a whole but within a single developing country. There is a transnational elite with members in both developed and developing countries, and even within developed countries there are the poor.
If developed–developing is not a clean dichotomy on empirical grounds, it does remain of significance insofar as the group of self-defined developing countries has worked as a coalition, particularly within intergovernmental organizations. This is in essence a political grouping, despite the fact that, to the extent that members of the Third World have a common perspective, it derives from their structural position within the global economy and from their inability to exert significant influence on world events (Williams 1993:9). At the global level, the Third World coalition has most prominently been comprised of the Non-Aligned Movement (NAM) and the Group of Seventy Seven (G77). The term NAM was coined by the first Prime Minister of India, Jawaharlal Nehru. The organization was founded in 1955 as a reaction to the East–West divide but never had a significant impact on East–West politics and was transformed into a multi-issue organization as concerned with economic as with political matters (Williams 1993:12). Its primary forum has been the General Assembly of the United Nations. The G77 is a pressure group formed by developing countries in the mid 1960s to demand change in the international political economy. It initiates resolutions and decisions in the UN General Assembly as well as in other UN bodies and specialized agencies, and produces declarations, programs, and agreements on issues related to development. It has retained its original name despite the fact that it now has some 130 members.
Developing countries have not only been in a weaker structural position in the global economy, but tend to have been in a less dominant position on other indices of power, including political, military, and legal. International law is a medium through which states pursue their political objectives, including economic objectives, and so it is to be expected that if developing countries have faced structural impediments within the international system, international law has had a role to play in that process.
Colonialism and its Legacies in International Law
Perhaps the most obvious dimension to the bias of international law against developing countries is the historical one: as emphasized by TWAIL scholars, international law served the interests of the colonizers rather than the colonized, and the legacy of that era can be seen in the Eurocentricity of the contemporary international legal system (Gathii 1998). The mainstream historiography of international law regards the Peace of Westphalia of 1648 as having confirmed in place the European territorially defined system of states. This system then spread geographically between the sixteenth and the nineteenth century, with international law being transformed through that process into a global system of law. European-originated international law is not the only international law to have developed – civilizations in other parts of the world including precolonial Africa and South Asia had their own systems governing relations among states. Some of the first generation of Third World scholars therefore protested the reading of the history of international law along purely European lines. Anand (1966:57) pointed out, however, that even if there are some similarities between the principles and rules developed in these systems and contemporary international law there is no connection between the ancient principles and the present system of international law, which was consolidated only during the last part of the nineteenth and the beginning of the twentieth century.
Historians of international law have long pointed to colonialism as the vehicle for the spread of international law and to the role of international law in colonial exploitation. In recent years those referring to themselves as TWAIL II have gone beyond recognizing the “opportunist way in which international law has sometimes been used for purposes of establishing, expanding and maintaining colonial empires” (Syatauw 1972). They have sought “to challenge conventional histories of the discipline which present colonialism as peripheral, an unfortunate episode that has long since been overcome by the heroic initiatives of decolonisation” (Anghie 2005:3), emphasizing instead that colonialism was constitutive of international law and that international law cannot be separated from the colonial past. According to Rajagopal (2003:292), this is true even of international human rights law:
According to [the mainstream historical approach of international lawyers], international human rights is the product of western humanist reaction to the horrors of the Nazi era, but is intellectually grounded in western political theory of Locke, Kant, and Rousseau. It bears no relationship to the “old” international law of colonialism, and owes nothing to anti-colonial struggles as intellectual forebears. Instead, I suggest[ed] that the discursive field of human rights – its symbols, apparatuses, and doctrines – was significantly shaped during the inter-war transition from colonialism to development, as well as by the apparatuses that were developed to manage anti-colonial resistance movements.
The integral relationship between international law, colonialism, and Third World resistance can best be illustrated through considering some specific examples of bodies of law or legal concepts integral to the colonial encounter and their ongoing relevance within international law. Let us consider three.
The Law of Territorial Acquisition
The political nature of a legal regime can often be understood when the regime is viewed from the perspective of the issue addressed by that body of law: for whom was this an issue, and whose interests were prioritized in using that regime to settle that issue? One issue addressed by international law during the colonial era was that of how to regulate which European state could acquire which portion of overseas territory. This was settled through the application by European states of the law of territorial acquisition. Where the Europeans encountered a political unit interacting with other political units in a manner to which the European state could relate, international law required that the unit be respected as a like form of legal entity and relations conducted with it on the basis that it was an international political–legal unit in its own right.
C.H. Alexandrowicz wrote extensively about the interaction between the European powers and the East Indies from the fifteenth century onwards. By the term “East Indies” he referred to the Indian subcontinent and “Further India” extending to Burma, Ceylon, Siam, Malay, and the Indonesian islands and, in some cases, Persia and other countries in the Persian Gulf (Alexandrowicz 1968:129). According to Alexandrowicz (1968:161–2), treaties concluded between the European and East Indian political units dealt with a range of interstate activity, including trade, mediation and arbitration, asylum and extradition, gradually regularizing relations between members of the two international political systems, and were not all one-way. There are examples of treaties giving Asian traders in Europe the same type of benefits as those enjoyed by European traders in Asia (Alexandrowicz 1958). Diplomatic relations were also established (Alexandrowicz 1960:297–308).
Territory external to the European states system and not already accounted for in terms of a political unit with a central government or ruler capable of conducting external relations on behalf of that entity in a manner to which a European state could relate was regarded as available to be simply subsumed as a noncontiguous geographical extension of the European state (Scott 1996). Land available for simple absorption was referred to as “terra nullius.” Land designated as terra nullius could be acquired by occupation, cession, and/or conquest. It was legal to use force in such situations, so long as war was conducted in accordance with contemporary legal standards. The law of territorial acquisition thereby discriminated against any peoples not politically organized along similar lines to the European states. It was not designed to protect the interests of peoples external to the European states system but functioned to facilitate the division of the globe amongst European states.
Until very recently a standard textbook on international law still contained a chapter on the international law of territorial acquisition (e.g., Malanczuk 1997). This body of international law remains relevant to contemporary international law insofar as it underpinned the European acquisition of territory in many portions of the globe. While the Antarctic continent is currently governed by the Antarctic Treaty System, for example, were this system to break down the status of the seven national territorial claims would once more come to the fore in debate regarding future sovereignty over the continent.
The Principle of the Bifurcation of Civilization
At the Congress of Vienna in 1815 a few great powers established the Concert of Europe and established civilization as the criterion for membership. Asian states that had previously entered into treaties with European states were now regarded as not suitable and lost their legal personality (Anand 1966:59). Gong traced the emergence of the standard of civilization in customary international law during the nineteenth century (Gong 1984:14). He claimed that, by 1905 at the latest, a standard of civilization had become an explicit principle of international law. There were five requirements of a civilized state: that it guarantee basic rights, exist as an organized political bureaucracy, adhere to generally accepted international law including the laws of war and maintain a domestic system of law guaranteeing legal justice for all within its jurisdiction, maintain adequate avenues for diplomatic interchange, and conform by and large to the accepted norms of civilized international society (Gong 1984:14–15).
The standard of civilization is no longer found within international law, but some writers see continuities between that concept and others in current vogue. Even the concept of development, which became prominent in the 1960s as a concept of assistance to the Third World, has more recently been subject to scrutiny as just another standard of civilization, which, together with “good governance,” necessitates opening up the economies of the Third World to that which is good for the wealthy countries (Rajagopal 2003:61). Donnelly (1998) referred to human rights as a new standard of civilization; according to Chimni (2003:56) it is no accident that the “omnipresence of the discourse of human rights” has coincided with increasing pressure on developing countries to implement neoliberal policies. Zaum (2007:40) identifies five elements of a new standard of civilization: administrative effectiveness; human rights; democratization; rule of law; and the establishment of a free market economy.
The Law of Treaties
The colonial legacy remains integral to international law not only because of the issues of that era addressed in specific legal regimes that remain embedded in international law, but because of those issues that were left unaddressed, and which remain inadequately addressed in the contemporary system of international law. One of these could be said to be the issue of unequal treaties. This term is associated with treaties imposed on China, Siam and Japan in the nineteenth century. They were often concluded at gunpoint and included provisions on extraterritoriality, nonreciprocal tariff and most-favored-nation privileges, the cession or leasing of territories (such as Hong Kong Island and Kowloon Peninsula to Great Britain), and the stationing of foreign military units (Cohen and Chiu 1974:1114).
Anand (2003) has recounted the story of how, once Japan had signed the Treaty of Peace, Amity and Commerce with the US in 1854, it had to sign several unequal treaties with European countries opening its ports for trade and providing for low custom tariffs as well as giving the European countries extraterritorial rights in criminal and civil matters. Humiliated, the Japanese “understood well that the only way to revise these humiliating treaties was to join the family of the so-called civilized states, which could be done only if they civilized themselves and Europeanized or westernized themselves to join them at the same level.” Hence the rapid westernization of Japan, its adoption of new customs, languages, clothes and legal codes based on those of Europe, and learning European international law. The Japanese Society of International Law was established in 1897 and the Japanese Journal of International Law in 1902. Japan also adopted aggressive policies toward Korea and China. “All these aggressive policies of Japan had the desired effect on the western powers and Japan was beginning to be recognized as a ‘civilized’ state worthy to be admitted in the European family of nations” (Anand 2003:70–1).
The unequal treaties imposed on Asian countries became symbols of oppression and so it might have been expected that, decades later when the law of treaties was being codified in the Vienna Convention on the Law of Treaties, unequal treaties would be made illegal. This was not the case. By Article 52, a treaty is void “if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” Implicit is an assumption that sovereign states are unlikely to enter willingly into unequal treaties or, if they do so, they are doing so as an expression of their sovereign will. In contrast to this, several of the “cornerstone treaties” of global governance can be regarded as having unequal provisions (Scott 2008). Two of the most obvious examples are the Charter of the United Nations with the enormous legal powers given to the permanent members of the Security Council, and the Treaty on the Non-Proliferation of Nuclear Weapons, which was designed to prevent additional states becoming nuclear-armed but did not outlaw the possession of nuclear weapons by those states already so equipped.
Developing Countries Endeavor to Harness International Law to Improve Their Position in the International Order
In the decades following World War II the empires of Great Britain, Spain, Portugal, the Netherlands, and France broke down in a relatively rapid process of decolonization. The term “decolonization” implies an undoing of what had been established, but the trouble was that colonialism had been not only a politico-legal, but an economic, project. Achieving political and legal emancipation did not lead to economic emancipation. In fact, the international economic system appeared to be structured so as to discriminate against the newly emergent states, as captured by the term “neoimperialism.” Looking back, Robert Cooper saw the “very act of decolonisation [as having been] a last imperial imposition since it gave Africans and Asians a system based on a purely European model and alien to their own history.” In Africa and the Middle East the nation state has been a “manifest failure both for individual countries, their citizens, and for the region as a whole” (Cooper, cited in Pham 2005:205).
Despite the role international law had played in their subjugation, the new states did not reject international law in any wholesale fashion (Anand 1966:70). Many accepted the treaties concluded on their behalf by the former colonial powers, at least until they would be able to modify, renegotiate or replace them with the consent of the other parties. When India became independent in 1947, for example, it considered itself bound to 627 treaties concluded by the British Indian Government (Anand 1966:71). Third World states stressed sovereignty as a form of protection against military, economic, political, or any other form of intervention. Developing countries also attempted to develop international legal concepts, principles, and organizations that they could use to improve their position in the international order. The first generation of scholarship on international law and the Third World was therefore integral to a political campaign being conducted by states, primarily in international institutions.
Some of the initial results were at least partially encouraging. In the 1950s and 1960s, developing countries achieved some Special and Differentiated Treatment in the General Agreement on Tariffs and Trade for least developed countries through the introduction of a Generalized System of Preferences. Pressure by developing countries for greater international economic justice led to the creation in 1964 of the United Nations Conference on Trade and Development (UNCTAD). Work undertaken here led to the campaign for a New International Economic Order.
A New International Economic Order (NIEO)
The term was coined in the mid 1960s by a group of French academic lawyers. These lawyers, including Virally (1965), promoted an “international law for development,” which was conceived of not as a separate branch of international law but as a new approach to the whole body of law (Garcia-Amador 1990:18). Writers on the NIEO were influenced by structural dependency theorists, who explained that, through colonialism, the economies of the South had become satellites of the North. In one of the “classics” of the NIEO literature: Towards a New International Economic Order, Mohammed Bedjaoui (1979) referred to the “colonial pact” under which the colonies had served as a reservoir of raw materials and an outlet for finished products. According to Rajamani, political independence had left intact a situation in which the Third World states were dependent on the North for both imports and exports, which meant that they were worse off than subsistence economies (Rajamani 2006:18).
The NIEO was announced by the G77 in the 1973 Algiers Declaration and was promoted within UNCTAD and the General Assembly. <UNGA Resolution 3201, the Declaration on the Establishment of a New International Economic Order, and UNGA Resolution 3202, the “Programme of Action on the Establishment of a NIEO,” were the products of a special session of the General Assembly devoted to the subject. As set out in the Declaration, changes to the international economic order were to be based on a set of principles including:
• Sovereign equality of states, self-determination of all peoples, inadmissibility of the acquisition of territories by force, territorial integrity, and non-interference in the internal affairs of other states;
• Full and effective participation on the basis of the equality of all countries in the solving of world economic problems in the common interest of all countries.
• The right of every country to adopt the economic and social system that it deems most appropriate for its own development.
• Full permanent sovereignty of every state over its natural resources and all economic activities.
• Regulation and supervision of the activities of transnational corporations by taking measures in the interest of the national economies of the countries where such transnational corporations operate on the basis of the full sovereignty of those countries.
• Preferential and non-reciprocal treatment for developing countries, wherever feasible, in all fields of international economic cooperation whenever possible.
• Giving developing countries access to the achievements of modern science and technology, and promoting the transfer of technology and the creation of indigenous technology for the benefit of the developing countries.
Developed states “did not rush to accede to these demands” (Henkin 1979:208). UNGA Resolution 3281 contained the “Charter of Economic Rights and Duties of States,” adopted on 12 December 1974 (see Rozenthal 1976; Meagher 1979; Chowdhury 1980), but this did not give rise to a treaty containing legally binding obligations. There has been no NIEO. Indeed, with the collapse of planned economies in socialist countries there has been less rather than more state-based intervention in the economy. By the early 1990s the term NIEO was of primarily historical interest, although elements of the NIEO platform have reemerged in other contexts.
The Special and Differentiated Treatment that developing countries had achieved in the 1960s did not survive the Uruguay Round of GATT (Maswood 2006:88). Although developing countries were granted some special rights in the WTO agreements, these are not as far-reaching as those under the GATT because developing countries have incurred significantly greater obligations overall, and the special and differential provisions now consist mainly of special transitional period and special import thresholds (Shaffer et al. 2003:24). According to Cullet (2003:182), differentiation has only been successful where the North also finds an interest in its application.
The Right to Development
References to a right to development were made as early as the process leading to the adoption of the Universal Declaration of Human Rights (Mickelson 1998:374). The first comprehensive treatment of the right to development as a human right is attributed to Keba M’Baye (Mickelson 1998:375). The failed attempt to have the New International Economic Order enshrined in international law evolved into a quest on the part of developing countries for recognition of a right to development as a fundamental human right. Western states have opposed such a collective right, which appears to imply corresponding duties on their part. By Resolution 41/128 of December 4, 1986, the UN General Assembly adopted the Declaration on the Right of Development (UNGA Res 41/128 of December 4, 1986). The Declaration of the 1993 Vienna Human Rights Conference proclaimed the right to development to be a “universal and inalienable right and an integral part of fundamental human rights.”
The right to development has, however, been largely supplanted by the concept of sustainable development. Acharya (2007:411–12) has been critical of the role of developed countries in this process:
The concept of sustainable development was born from the tension between the developed and developing countries – the environment as perceived by the developed world and development as perceived by the developing world. […] The doctrine of sustainable development has […] become a convenient tool for the developed world to undermine the developing world’s core demand of the right to development as conceptualized in the NIEO and the UN Declaration of the Right to Development. The right to development has been diluted within the mixed concept of environment and development – sustainable development – and the developed world can, at its discretion, decide when and what priority should be given to which element of the sustainable development amalgam, either the environment or development. By enfolding the development concern of the developing world within the concept of sustainable development, the compromise between the two worlds has earned legitimacy without any legal commitment to the development efforts of the developing countries.
The Common Heritage Principle
The Third World developed the principle of the common heritage of mankind (CHM) and successfully had it incorporated into several treaties. Although the exact content of the principle was never settled, it evolved so as to incorporate the ideas that neither the CHM area nor its resources can be owned or subject to appropriation of any kind; that the CHM must be managed in common by all humankind; that there must be an active sharing of benefits derived from exploration and exploitation of the CHM; and that the CHM area must be used solely for peaceful purposes (Carlsson 1997:28). The principle gained greatest acceptance in space law, and was incorporated in the 1967 Outer Space Treaty. Article 1 of the Treaty states that the exploration and use of outer space shall be the common province of all mankind. Article 4 of the Moon Treaty provided that the exploration and use of the moon “shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development.” The trouble was that only a few states ever ratified the Moon Treaty.
From the early 1980s to 1994 a campaign ran in the General Assembly claiming that Antarctica was the common heritage of mankind and that the treaty regime governing the continent was a rich man’s club. This was particularly significant because of the potential mineral resources of the continent. The campaign was unsuccessful and, after the Antarctic Treaty System adopted a moratorium on mining in Antarctica in the Environmental Protocol to the Antarctic Treaty, the campaign ended. The 1982 Third United Nations Convention on the Law of the Sea applied the CHM principle to the seabed outside national jurisdiction, but the US and other developed countries rejected the relevant provisions of the treaty and in 1994 an implementing agreement was signed that effectively amended the Law of the Sea Convention to remove the application to the seabed of the CHM principle.
Do Structural Impediments Remain?: (1) Developing Countries and the Sources of International Law
The South continues to exert less influence than the North over the creation of international law. It remains difficult for the South to place an issue on the global agenda, be assured of its attracting the serious attention of the North, and have international law come to address that issue in a way that improves the lives of people in the South. Shedrack Agbakwa (in Anghie et al. 2003) sets out the case, for example, as to why a far-reaching and effective regime is needed to protect people in the Third World from human rights violations on the part of multinational corporations. Such a proposed regime has not come into existence, despite its echoes of the New International Economic Order of the 1970s. Developing countries did, however, have an unusual success in achieving the Doha Declaration, which assured developing countries that they would not be subject to penalties under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for addressing health issues such as AIDS. Odell and Sell (2006) attribute this success, at least in part, to the way in which developing countries and NGOs reframed the issue, from that of TRIPS as a better alternative than tolerating piracy of private property, to TRIPS as preventing access by poor people suffering from HIV/AIDS to potentially lifesaving drugs.
Developing countries have been at a disadvantage in multilateral negotiations, through which much treaty law is created, because the relevant foreign offices cannot afford to employ sufficient lawyers to span the range of issues to be addressed and, even if they could afford to employ them, there may be inadequate lawyers available with relevant training and experience on which the bureaucracy can draw. They also cannot afford to send as many or as large delegations to the conferences at which multilateral treaties are negotiated (see Netanel 2009 regarding treaty-making in the World Intellectual Property Organization). In many cases the delegation may consist of only one person. Chasek and Rajamani (2003) have documented the ways in which a small delegation is disadvantaged. It does not have as large a range of expertise on which to draw, it is not able to participate in as many simultaneous negotiating sessions, and it is less likely to have continuity from previous negotiations on the subject.
Developing countries are also at a disadvantage in the making of customary international law. Kelly (2008) criticizes the Declarative Model of Customary International Law by which the repetitive iteration of norms in resolutions at international forums is said to indicate general acceptance of the norm without the associated empirical evidence of states accepting it and acting accordingly. According to Kelly (2008), the notion that a failure to protest indicates a preparedness to be bound by an emergent rule is far-fetched considering that few if any states have the legal and financial resources to monitor the multitude of incidents of potential relevance, assess their possible implications, and respond in a timely fashion. Kelly notes a tendency amongst Western scholars to
prematurely conclude that one’s policy preferences, particularly when shared by other Western societies, have become customary norms. In making these assessments, Western writers virtually ignore the domestic policies and perspectives of non-Western cultures […] The practices and attitudes of Japan, China, and the many nations of Africa, Asia, and Latin America are virtually ignored in the Western literature.
(Kelly 2000:468, 472)
Academic publishing in general can be said to perpetuate inequality in North–South relations, with rankings of journals and taxonomies of academic performance continuing to favor publications from the United States and the United Kingdom (see Merilainen et al. 2008). This Northern hegemony is clearly evident in international law scholarship and education (Anghie and Chimni 2003:86). The status accorded to studying, working and publishing in the United States or Europe combined with the lack of resources and career opportunities in many developing countries means that a number of the scholars from developing countries who are well known in the field have built their careers in the North rather than in their own country. Publications exploring the attitude of the Third World toward international law have often been published by a British or North American publisher. The Chinese Journal of International Law is published by Oxford University Press and the African Year Book of International Law by Martinus Nijhoff in the Netherlands. Even in Australia, a country regarded as developed although geographically in the South, a large proportion of the international law community has undertaken tertiary study in North America or the United Kingdom.
Where the developing countries might have expected to exert increasing influence over the sources of international law through sheer numbers, this has not necessarily been the case. The turning point in the General Assembly of the United Nations came in 1960, with the entry of an additional 17 African states into the United Nations. This meant that developing countries, if voting together, could readily block a resolution of the developed countries and were in a strong position to initiate and ensure the passing of their own resolutions. But the West has been keen to downplay the legal significance of General Assembly resolutions as not in themselves creating new international law. Some writers in the 1970s, particularly Bedjaoui and others from the Third World, argued that General Assembly resolutions have to be considered a new source of law or at least that they can be a step toward the formation of customary international law (Flory 1982:18–20).
Within international organizations there has been a trend away from majority voting, which had come to favor developing countries, toward consensus voting. Consensus voting, in which a decision is taken in the absence of objections, has served the West. According to critics, huge pressure has been placed on developing countries in the WTO not to prevent consensus, while the US has used the method to give itself a veto (Maswood 2006:170). Things have, however, been changing quite rapidly in the WTO since about 1990. Developing countries now make up more than three-quarters of membership and are increasingly able to exert influence through coalitions (Rolland 2007). During and after the Uruguay Round (1986–94), developing countries’ coalition behavior became more complex. They no longer operated as a single G77 grouping; leading developing countries increasingly formed pragmatic coalitions both with other developing and with developed countries on specific issues of common interest. Developed countries have responded with vote trading coupled with coercive tactics aimed at breaking down coalitions of developing countries (Eldar 2008:27). Although developing countries in the WTO are now clearly able to block the conclusion of an agreement, this is not the same thing as being able to bring about an agreement favorable to them. Least developed countries lack the capacity to engage in complex coalition activity.
While structural impediments to developing countries using international law to their advantage remain, developing countries have been in a strong bargaining position on some environmental matters of global significance and it is here that we see some contemporary examples of differential treatment. Principle 7 of the Rio Declaration on Environment and Development of June 14, 1992 enunciates the Principle of Common but Differentiated Responsibility (CBDR).
States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, states have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.
The types of provisions in environmental treaties incorporating differential provisions have been usefully classified by Rajamani (2006:93) as follows:
• Provisions that differentiate between industrial and developing countries with respect to the central obligations contained in the treaty, such as emissions reduction targets;
• Provisions that differentiate between industrial and developing countries with respect to implementation, such as delayed compliance schedules, permission to adopt subsequent base years, delayed reporting schedules, and soft approaches to non-compliance; and,
• Provisions that grant assistance, inter alia, financial and technological.
The ozone depletion regime, for example, incorporates technology cooperation between developed and developing states and a financial mechanism. The Conference of Contracting Parties to the Wetlands Convention decided in 1990 to establish a fund maintained by voluntary contributions that would provide assistance to developing countries for activities undertaken to further the purposes of the convention (Cullet 2003:108). In 1991 the World Bank established the Global Environment Facility, the largest financial mechanism devoted to global environmental problems.
The incorporation of differentiated responsibilities into the climate change regime has a key point of political disagreement in this issue area. The Kyoto Protocol incorporated legally binding emissions reduction targets for developed but not for developing countries. Although a party to the UN Framework Convention on Climate Change, which incorporated the CBDR principle in Article 3 (1), the United States has not become party to the Kyoto Protocol, strongly maintaining that developing countries should also contribute to solving the problem. The wide range of economic strengths amongst developing states may be exacerbating North–South tensions and hindering progress on climate change.
Do structural impediments remain?: (2) Developing Countries and International Dispute Resolution
Developing countries were initially distrustful of the International Court of Justice (ICJ), primarily because the body of law it applied had been European in origin and created to serve European interests. This distrust was increased by the Court’s decision in the Southwest Africa Case in 1966 (Warioba 2001:44). The French withdrawal from the compulsory jurisdiction of the ICJ after the Nuclear Test Cases and that of the US after the Nicaragua Case confirmed the impression that major powers did not use adjudication when their vital interests were at stake. Decisions of the Court appeared more political than in a domestic court, and it seemed more difficult for a smaller power to have a judge elected to the Court than it was for a major power (Warioba 2001:46). It is understandable that developing countries were not overly enthusiastic about committing themselves to compulsory ICJ jurisdiction (Romano 2002:545). Although developing countries supported the creation of the International Tribunal for the Law of the Sea through the 1982 Convention on the Law of the Sea, they played a particular role in the process by which the bench would be constituted. The Tribunal is composed of 21 independent members elected by secret ballot, which gives developing countries a strong influence.
The participation of developing countries in international litigation has increased greatly over the last 20 years (Romano 2002:608). Here, as elsewhere, it is essential to distinguish amongst the varying groups of developing countries since, for example, while there has been a trend in Asia toward engaging in international adjudication (Owada 2005), Romano (2002:610) found that, at least as of 2002, most countries of the Caribbean, Pacific, Central and South East Asia, Middle East, and large parts of Africa remained uninvolved. There is undoubtedly a complex of reasons as to why this is so, not least of which is the significant cost of international litigation. Standard in international litigation is for each party to pay its own costs, although some judicial bodies, including the ICJ, have the power to make an order favoring one or the other party. Romano has estimated that litigating an average case that goes to a final judgment is likely to cost millions of US dollars (Romano 2002:552). In 1989 the General Assembly established the Secretary-General’s Trust Fund to Assist States in the Settlement of Disputes through the ICJ, a system of legal aid, but this only assists states involved in cases in which the basis of jurisdiction is an ad hoc agreement. A Trust Fund for ITLOS was established in 2001.
Dispute resolution under the WTO’s Dispute Settlement Understanding (DSU) is much more formal and legalized than it had been under GATT. A decision of a dispute settlement panel or the Appellate Body can only be rejected where there is a consensus of all Member States. Conventional wisdom has it that binding, third party dispute resolution is an advantage for smaller, less powerful states, whose bargaining leverage in an informal, negotiation-based process of dispute resolution would not be strong. Research on the experience of developing countries in the WTO has found, however, that while it has indeed offered certain advantages to developing countries, poorer countries have expressed frustration with or indifference to the DSU. Smith (2004) gives three reasons for this. First, the rules enforced under the DSU are systematically biased in favor of advanced industrial economies. Even if one disagrees with that position, developing countries can be deterred from litigating if issues are likely to become linked – if, for example, an advanced country threatens to withdraw benefits such as development aid. Second, the cost of litigating is too high for some developing countries and third, the system of remedies relies on economic sanctions and this favors larger economies that can better absorb the costs of retaliation.
This raises again the issue of what Busch et al. (2008) refer to as legal capacity: “the institutional resources required to prepare and prosecute disputes.” Legal capacity has always been an issue at the ICJ. When developing countries are represented at the ICJ, a majority of their principal legal representatives tend to be employed from developed countries. A total of 41 developing countries were parties in 27 finalized, listed, contentious cases before the ICJ between 1999 and 2008. Although the agent representing a developing country was in every case a national of the developing country, only 35 – or just over 24 percent – of the counsel/advocates representing developing countries were nationals of developing countries or held positions in developing countries. About 75 percent of counsel/advocates representing developing countries in cases being heard by the ICJ were from law firms or universities in developed countries. The WTO dispute resolution system has become so complex that it requires a great deal of legal specialization to be able to engage in WTO litigation. The WTO Secretariat provides technical assistance to developing countries, and the Advisory Centre on WTO Law was established in 2001 as an intergovernmental organization to provide training and legal services to developing and transitional economy countries members of the Centre and to all least developed countries (see Palma 2005).
And yet even US trade officials usually supplement their expertise with input from private firms and trade associations and they do not have the challenge of working in a foreign language (Shaffer et al. 2003:21, 27). Three-quarters of all WTO disputes have been launched by members of a small group of which the US and EU have been by far the most prominent. Through their engagement with the system, members of this group have built up a pool of knowledge and experience – and indeed, have impacted on the process and developing body of WTO law. This is to their benefit in subsequent cases, as well as when settlements are negotiated in “the law’s shadow” rather than through the formal processes (Shaffer et al. 2003:12).
What does the Experience of Developing Countries Tell us about International Law as a System?
It is difficult not to be pessimistic regarding the role of international law in world politics after reviewing the way in which the colonial encounter was integral to the evolution of international law, the experience of developing countries in the early years after decolonization, and the ongoing structural disadvantages faced by developing countries. Based on his research of the experience of developing countries in the evolution of the modern law of the sea, Payoyo (1997:462) concluded, for example, that it seems that international law “is truly incapable of removing old inequities, but is eminently adaptable in generating new ones.” This raises some fundamental questions regarding the nature of international law. If international law has so far served only as a tool of exploitation, does that mean that international law will necessarily do so in the future? The postmodern legal scholarship of the 1990s tended to answer the question in the negative. As Andreas Paulus has written (2001:738):
uncovering the colonial and biased origins of modern International Law, postmodern criticism has proven its incapability for the solution of contemporary problems beyond repair […] The central question for today is what to do about them, whether those structures can, in spite of their problematic origins, be useful in the contemporary world and may even help to undermine the very results of colonialism and suppression which we find unacceptable.
One’s position on the question as to whether international law could evolve to enable developing countries to improve their position in the international order necessarily reflects underlying theoretical positions on the question of the relation of law to power as well as the understanding one has of the significance of the passage of time. Is History cyclical, for example, or does it progress ineluctably toward a better future? Recent writing on international law from a Marxist perspective is pessimistic. Chimni (2003:47) began his “Manifesto” on TWAIL with the words: “The threat of recolonisation is haunting the third world.” Miéville (2005:316) asserted: “I see no prospect of a systematic progressive political project or emancipatory dynamic coming out of International Law.” Miéville does not think that this conclusion need be negated by the lack of alternatives to law but he does go on to acknowledge that, although law cannot fundamentally change power relations, there can be reformist moments.
This last comment brings his position much closer to some of the TWAIL scholars who, while not claiming that developing countries could overturn the entire global order via international law, at least believe that international law can function as a counter-hegemonic tool (Rajagopal 2008). On considering whether international law must necessarily reproduce forms of colonialism, Anghie claims not to be deterministic, although his own argument makes this a “difficult claim to sustain” (Chiam 2006:207). Falk et al. (2008:5) reached a more positive conclusion:
[F]rom times past, international law has provided the powerful with a series of instruments by which to exploit and control the weak, and even provided legal cover for colonial rule. With this historical awareness, it is evident that there is no necessary linkage between international law and global justice; indeed, it is more convincing to claim that the historic experience, with some exceptions, most clearly expresses the reinforcing interconnections between law, power, and injustice. But we also believe that international law, as with all law, is a two-edged reality and, with political and moral imagination, can be used advantageously by the weak to resist the plunder and invasions of the strong.
The author would like to acknowledge the valuable research assistance of Alexandra Walker.
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Links to Digital Materials
The Advisory Centre on WTO Law is an intergovernmental organization that provides legal advice on WTO law, support in WTO dispute settlement proceedings, and training in WTO law to developing and least developed countries. At www.acwl.ch/e/index_e.aspx, accessed 3 Nov. 2009.
Africa Legal Aid is a small pan-African NGO devoted to promoting and protecting individual and collective rights throughout Africa and to challenging the impunity of gross human rights violators. Its headquarters are in Accra, Ghana. At www.africalegalaid.org/, accessed 3 Nov. 2009.
The Alliance of Small Island States (AOSIS) is a coalition of small island and low-lying coastal countries that share similar development challenges and environmental concerns, especially their vulnerability to the adverse effects of global climate change. At www.sidsnet.org/aosis/, accessed 3 Nov. 2009.
The Asian Society of International Law is a nongovernmental organization that aims to: promote research, education, and practice of international law by serving as a center of activities among international law scholars and practitioners in Asia and elsewhere; foster and encourage Asian perspectives of international law; and promote awareness of and respect for international law in Asia. At law.nus.edu.sg/asiansil/index.htm, accessed 3 Nov. 2009.
The Chinese Journal of International Law is a general international law journal with a focus on materials and viewpoints from and/or about China, other parts of Asia, and the broader developing world. At chinesejil.oxfordjournals.org/, accessed 3 Nov. 2009.
The Indian Society of International Law is a national organization that aims, inter alia, to foster the study and development of international law in India. At www.isil-aca.org/, accessed 3 Nov. 2009.
The Public International Law and Policy Group (PILPG) is a non-profit organization, operating as a global pro bono law firm providing free legal assistance to developing states and sub-state entities involved in conflicts. At www.publicinternationallaw.org/, accessed 3 Nov. 2009.