The Past, Present and Future of International Law: A Critical Third World Approach
Chimni, B. S., Melbourne Journal of International Law
CONTENTS I Introduction II The Past A History as Foundational Critique III The Present A The Divided Self B Globalisation of Alienation C The Alienation of Discipline IV The Future A Fragmentation versus Unity B Transformation into Internal Law C Character of Emerging Global State and Law D Tasks before International Lawyers 1 Revisiting History of International Law 2 Engaging with Issues of Global Justice 3 Preserving Alternative Notions of 'Good Life' 4 Mobilising Legal Resources against Violence V Final Remarks
A third world approach to international law, or TWAIL as it has come to be known, represents in general an attempt to understand the history, structure and process of international law from the perspective of third world states. (1) A critical third world approach goes further and gives meaning to international law in the context of the lived experiences of the ordinary peoples of the third world in order to transform it into an international law of emancipation. It has as its primary goal the shaping of an international law that offers a life of dignity for the poor and oppressed in the third world. It is amidst this hope that I take a sweeping look at the past, present and future of international law.
The thread that will bind the disparate fragments, and it cannot be more than this, is the broad theme of the alienation of international law from the peoples of the third world. I use the term 'alienation' to denote aspects of the estranged relationship between individuals, societies and nature, regulated by international law under capitalism as it has evolved since the 16th century. When I speak of the future of international law, I will, besides touching upon the transformation of international law into internal law and the emergence of a Global State, make a few remarks on the role of international lawyers in addressing this alienation. First, however, let me turn to the past of international law.
II THE PAST
The road to the future, it is said, winds its way through the past. It explains why the history of international law has been the subject of uninterrupted examination by third world scholars in the post-colonial period. There is a clear realisation that, in order to transform the present and future of international law, the past must be understood in all its complexity.
As the decolonisation process gained strength in the middle of the last century, third world scholars began to challenge the parochial and celebratory history of international law written by Western scholars. In the 1960s and 1970s, scholars such as R P Anand, Judge T O Elias, Judge Nagendra Singh, S P Sinha, J J G Syatauw and others undertook this invaluable critical task. (2) Some Western scholars such as C H Alexandrowicz, for several years a Professor of International Law at Madras University in India, joined hands and produced pioneering work. His book, An Introduction to the History of the Law of Nations in the East Indies, remains a seminal text to dispel the idea that the non-Western world was unfamiliar with international legal practices in the pre-colonial era. (3) It forms an integral part of the collective project, first, to contest the understanding that international law was simply a product of European Christian civilisation. (4)
The historical task was, second, undertaken to show how the development of international law since the 16th century was linked to the colonial project. The rules of international law in crucial areas, such as laws relating to the acquisition of territory, recognition, state responsibility and state succession, were shaped by the necessities of colonialism. (5) The alienation of international law from the peoples of the third world was epitomised in the civilisation/barbarian divide that made them and their territory into objects of international law. …