Review Essay: International Law and Eurocentricity Conclusion: Towards Solidaristic Reconstructions of International Society Sovereigns, Quasi-Sovereigns and Africans ends with the challenge to African countries to `experiment with new approaches to the questions of democracy, pluralism, co-operation, and global responsibility ... [to] revisit our intellectual assumptions, and perhaps our political agendas, in order to promote a new vision of human solidarity and global inter-dependence'.91 Grovogui leaves us with the hope that `we might still save ourselves from global catastrophe if we apply self determination and multilateralism to the future course of international relations'.92 While I applaud the excellent research and analysis of Sovereigns, Quasi-Sovereigns and Africans, I suggest that more could have been said about the limitations that have been confronted in attempts at restructuring international relations, or conceptions of democracy, cooperation and global responsibility. The attempt to restructure the international economy proposed in the new international economic order is one example mentioned in the book. Although Sovereigns, Quasi Sovereigns and Africans is appropriately critical of liberal commentators who have looked upon the attempt to restructure international economic relations with claims of the inevitability of an international free market economy in place of planned or managed economies, it nevertheless falls short of pointing out a basic feature of liberal argument: that as a matter of political philosophy that is quite well accepted even within political theory discussions in many Western countries, the relationship between markets and politics is, as a matter of principle, contestable.93 The relationship between markets and politics has no singular, natural and necessary form that can be reproduced from place to place or country to country as proposed by the Bretton Woods institutions and the United States.94 In a sense, therefore, calls to restructure the international economy through the liberal parameters of international law cannot be seen as self-defeating, as some otherwise critical commentators within international law have observed in advancing justifications for the failure of the effort to restructure the international economy through the NIEO.95 Another important feature of the liberal response to restructuring the international economy using international law has been what Mohammed Bedjaoui has referred to as legal paganism.96 Legal paganism refers to the refusal to acknowledge attempts to restructure international law or the global economy on the basis that these attempts promote claims that have no legal basis. In other words, legal paganism refers to the notion that a revision of international economic relations would unduly destabilize the present international legal order and subject it to the whims of developing countries. The Charter for the Economic Rights and Duties of States which embodied some of the principal demands of the NIEO, for example, was recognized as an example of soft law: it failed to reach a level of legality that would have constituted it as hard law. The ostensible reason for this was that there was little international consensus over its claims. This typical response to claims to restructure the international political economy is not unfamiliar, even within domestic jurisdictions. The bifurcation of legal claims (representing the status quo) on the one hand, and moral claims or soft law (deviations from the status quo or challenges to it) on the other hand, is a liberal strategy for perpetrating an unjust status quo by adopting the political posture that oppositional claims may in time become legal principles when they attain or command a sufficient level of legality. While the oppositional claims arise from a communitarian conception of international society based on ideals of solidarity and democratic accountability, those representing the legality of the status quo self-represent as neutral, natural and objective and are based on individualistic conceptions where the will of states gives legitimacy to the prevailing international law.97 Consequently, a departure from the present rules, as posed by the NIEO challenge, is held in check not by an ill-advised resort to liberal legality, but rather in spite of it. In other words, one cannot separate the rules of international law, from their praxis. As already noted earlier, such a separation would presume that international law is a neutral regime whose otherwise unproblematic workings are compromised opportunistic forces external to it. Such presumptions are false and only serve to disguise the participation of international law in the colonial and neo-colonial projects of various interests and their particular and myraid manifestations. In addition, these debates ought to be considered within their appropriate historical and political context. This historical context includes the following factors: (i) The debt crisis, which followed the relatively optimistic decade of the 1970s, had ravaging effects many developing countries. The high levels of borrowing by developing countries from developed countries and private capital during this optimistic period led to accumulation of high debt burdens following a recession in many developed countries. This recession prompted a hike in interest rates on the debt. These high levels of interest set off the debt crisis by the end of the 1980s as developing countries then heavily in debt became unable to repay their principal or interest. The involvement of the International Monetary Fund in debt restructuring in collaboration with private lenders triggered the fundamental restructuring of developing country economies,98 resulting in enormous cuts in social spending. 99 (ii) Concurrently with the economic recession in North America and Europe came the rise to power of conservative governments (Margaret Thatcher in the United Kingdom and Ronald Reagan in the United States), demonstrating hostility to issues of global justice and domestic equity.100 (iii) The rise of neo-liberal reformism and its hostility to autonomous or alternative models of industrial and development strategy in developing countries was exacerbated by a constantly deteriorating international market for agricultural products from developing countries and a hostile international economy organized to exclude agricultural commodities from a liberal multilateral trading framework (GATT) through agreements such as the multi-fiber arrangement (MFA).101 In East Asia, some developing countries have maintained high growth rates for at least three decades now.102 The increasing differentiation among developing countries and the changed international political and economic conditions need to be taken into account in assessing new forms of disempowerment for developing countries, as well as the sources and limitations of those that have differentiated themselves by their spectacular economic performance. In no sense, however, should this analysis be taken to suggest that political, social and economic problems in developing countries should be seen as exclusively arising from the neo-colonial relationships between these countries on the one hand, and Western industrial countries, transnational capital, and international financial and economic institutions, on the other hand. Rather, the importance of structural analysis and historical experience in understanding developing country issues lies in their under-representation in contemporary and mainstream analysis. That said, there is a significant theme that the strong form of anti-colonial scholarship of Sovereigns, Quasi-Sovereigns and Africans can borrow from the weak form of anti-colonial scholarship in Legal Polycentricity: that perhaps one place to look for inspiration for new visions of human solidarity and global interdependence would be within the rich civilizational diversity that Legal Polycentricity discusses at length. Although Legal Polycentricity does not provide us with any detailed perspective for such a reconstruction of international society (yet I recognize that one cannot romanticize the varied and rich forms of collective existence and identity), the need for reconstruction or reconstitution of global politics and economics cannot be understated. The neo-liberal regime of national economic reconstruction for global economic integration as an accepted dogma in mainstream liberal international law scholarship serves to legitimize Euro-American imperial neo-colonialism in alliance with Third World ruling and leading business elites over most of the developing world.103 Sovereigns, Quasi-Sovereigns and Africans charts an important research agenda for anti-colonial international legal scholarship. For its part, Legal Polycentricity revives an important debate, one that flags the importance of the scholarly contributions and/or perspectives of the Third World to international law. Sovereigns, Quasi-Sovereigns and Africans, however, invites us to appreciate the complicated relationship between cultures and civilizations as is manifest and latent in international legal norms, doctrines, principles, policies and the structural relationships between powerful and less powerful countries as we continue to undertake this challenge. The revitalization of anti-colonial international legal scholarship that these books represent is therefore welcome for being so opportune. In particular, the books help to illustrate that there is a more subtle reading of the scholarship of the first generation of African international lawyers, such as that of the late Taslim Olawale Elias and Mohammed Bedjaoui, than presently exists. This is all the more important in view of the fact that some of the major themes these scholars were grappling with in the 1960s and 1970s correspond with the themes covered in the books under review here. This continuation of themes from earlier decades in contemporary international legal scholarship is highly suggestive of the possibilities of further developing strategies/approaches not only to the themes discussed here, but to many more as well. 91 Sovereigns, at 207. 92 Ibid. 93 See Langille, `General Reflections on the Relationship of Trade and Labor or: Is Fair Trade Free Trade's Destiny', in J.N. Bhagwati and R. Hudec, Fair Trade and Harmonization: Prerequisites for Free Trade? (1996) 238. 94 See Wade, `Japan, the World Bank and the Art of Paradigm Maintenance: The East Asian Miracle in Political Perspective', 217 New Left Review (1996); E. Laclau and C. Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (1985) (Both of these authors argue why history is replete with examples showing that market economics is an inevitable force impelled by history). Roberto Unger has also argued that necessitarian social and political theories that propose that there is only one way in which market economies can be successfully organized do not have credence when seen against historical evidence to the contrary. R.M. Unger, False Necessity, Anti-necessitarian Social theory in the Service of Radical Democracy, (1987). 95 Otto, `Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference', 5 Social and Legal Studies (1996) 348. Concluding her observations on the failure of the NIEO, she argues that `[d]espite its oppositional stance to western domination, the G7 strategy relied on an arsenal of liberal legal concepts to support its case.... In doing so, the strategy remained uncritical of modernity itself. A Subaltern Studies perspective would suggest that the G7 challenge was both made possible, and also prevented from substantial success by the uncritical embracing of a European framework.' 96 Bedjaoui, supra note 15, at 98-101. 97 Damrosch, `Politics across Borders: Non-intervention and Non-forcible Influence over Domestic Affairs', 83 AJIL (1989) 1, argues for a reformulated norm of non-intervention that would create a balance between the political independence of the state on the one hand, and the political rights of citizens to freely choose a political system of their choice, on the other. Under this reformulated version of the non-intervention norm, Damrosch argues that the prospects of enhancing internationally protected rights would increase. F. Teson, Humanitarian Intervention (1988), argues that it would be morally intolerable for the international community to defer combatting massacres, acts of genocide, mass murder and widespread torture on the basis of the non-intervention rule. He argues that because the ultimate basis for the existence of states is the protection and enforcement of the natural rights of its citizens, a government that engages in substantial violations of human rights betrays the reasons for its existence. Consequently, Teson argues that such a state forfeits not only its domestic legitimacy, but its international legitimacy as well. For this reason, he argues that foreign armies are morally entitled to help victims of oppression in overthrowing dictators, provided that the intervention is proportionate to the evil it was designed to suppress. Kennedy, `International Law and the Nineteenth Century: History of an Illusion', 65 Nordic J. Int'l L. (1996) 418 summarizes this tension between, on the one hand, a strict formal notion of sovereignty that does not accommodate intervention and, on the other, its reinterpreted or reformulated counterpart that derives authority not from the sovereign will but from the people themselves (and as such accommodates intervention for serious human rights abuses) as follows: `This formalism is a fighting faith, a defence of forms, responsive to scepticism and pragmatism. International Law in this century has developed in the clash between these ideas - between a set of forms, legal constructs, and a set of political and sociological sensitivities.' Kennedy notes that the move from formalism to pragmatism in international law is told as one of progress or social evolution. This replacement of classical international law and its replacement by institutions is, according to Kennedy, told as `a story of modernisation, of internationalisation and of the left' (ibid, at 387). For another excellent critique of this rendition of progress and modernization of international law see, Obiora Chinedu Okafor, `The Global Process of Legitimation and the Legitimacy of Global Governance', 14 Arizona Journal of International and Comparative Law (1997) 117; Idem, `The Concept of Legitimate Governance in Contemporary Municipal and International Legal Systems: An Interdisciplinary Study', unpublished LLM thesis, University of British Columbia, 1995. Obiora notes that legitimacy must extend not only to governments, as suggested by Teson and Damrosch, but must also extend to the international institutions and governments of powerful countries and their conduct (e.g. with regard to their efforts to promote human rights and democratic modes of governance) as it affects developing countries. The inconsistency of the application of these norms also calls into question the practice of institutions such as the United Nations. Murumba, `Grappling with a Grotian Moment: Sovereignty and the Quest for a Normative World Order', 19 Brooklyn Journal of International Law (1993) notes that recent events (such as the collapse of the Soviet empire, the end of the Cold War and multilateral involvement in Haiti, Somalia and the Persian Gulf among other places, South African independence) indicate that `so much has happened so fast that ... policy analysts ... have [not] had a chance to find their footing in this rapid transformation of orthodoxies into obsolescence'. Murumba therefore cautions: `The danger ... is that incredulity can give way to blind faith - that the hard work of transforming transitory opportunities can be abandoned for belief in miracles.' Another critical observer in this area is Orford, `The Politics of Collective Security', Mich. J. Int'l L. (1996) 373; Idem, supra note 30, at 63. 98 Orford, `Locating the International: Military and Monetary Interventions after the Cold War', 38 Harv. Int'l L. J. (1997) argues that `the dominant liberal international consensus is that collective humanitarian intervention has become necessary to address the problems of local dictators, tribalism, ethnic tension, and religious fundamentalism thrown up in the post-cold war era. Surprisingly little attention has been paid, however, to the extent to which the activities of international institutions, particularly international economic institutions, have affected political processes, and thus may have contributed to the crisis facing the expanded collective security system' (at 443). 99 The aim of these policies is to meet what is now considered to be the standard economic objectives of growth, low inflation, a viable balance of payments and, more recently, equitable income distribution. See Williamson, `What Washington Means by Policy Reform', in J. Williamson (ed.), Latin American Adjustment: How Much Has Happened? (1990) 5. Neo-liberalism (or the Washington Consensus, as these policies have been referred to) therefore seeks to seriously erode the sovereignty of Third World states in the following ways: by advocating `the establishment of a monetary anchor to stabilise national currencies' against the United States dollar; reductions in public expenditure for social programmes such as health and education; liberalization, ostensibly to `remove nepotistic and oligopolistic private capitalism', though in actual fact it leads to unqualified acceptance of international competition and economic strangulation for Third World countries; privatization leading to `abandonment of productive activities and their simple transfer to the hands of private actors'. It also leaves no room for social policies, other than emphasizing its `compensatory pretensions, which seldom escape the realm of rhetoric into practice'. It has also been described as preoccupied ... on following the institutional path set by the advanced industrialised countries of the North Atlantic'. See Gomes and Unger, `The Next Step: A Practical Alternative to Neo-Liberalism', paper presented at the Roundtable on `An Alternative to the Neo-Liberal Model', Global Studies Research Program, University of Wisconsin, Madison. Wade Mansell has argued that law facilitated the oppressive and aggressive economic policies of the West against developing countries following the debt crisis. See Mansell, `Legal Aspects of International Debt', 18 Journal of Law and Society (1991) 381. On attempts to use liberal international discourse as positive, albeit limited, visions of reconstructing Third World countries, see Mansell and Scott, `Why Bother About a Right to Development?', 21 Journal of Law and Society (1994) 171; Ginther, `Participation and Accountability: Two Aspects of the Internal and International Dimension of the Right to Development', Third World Legal Studies (1992) 55; Perry, `Rethinking the Right to Development: After the Critique of Development, After the Critique of Rights', 18 Law and Policy (1996) 238. 100 There is of course an enormous Western investment in democracy promotion, peace-keeping and political reform in the Third World. These reforms are widely embraced as antidotes to Cold War support of Third World dictatorships. Alternative analysts, however, suggest that the democracy promotion programmes of the United States have been designed more to retain the elite-based and undemocratic status quo of Third World countries than to encourage mass aspirations for democratization. Democracy promotion, in this perspective, does nothing to address growth of inequality and the undemocratic nature of international decision-making. W.I. Robinson, Promoting Polyarchy: Globalization, U.S. Intervention and Hegemony (1996). For a critique from a human rights perspective, see Oloka-Onyango, `Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa', 26 California Western International Law Journal (1995) 1. 101 The 1986 Multifiber Arrangement superceded other similar arrangments agreed upon since the early 1960s with a view to controlling the terms of international trade in textiles. These arrangements allocated quotas of imports into developed countries by developed countries and at their height they were expanded to include trade in cloth and clothes. These arrangements existed in an uneasy legal relationship to the General Agreement on Tariffs and Trade which sought to lower all trade barriers, while the MFA was designed precisely to impose controls to bar developing country exports into developed countries. See B.S. Chimni, International Commodity Agreements: A Legal Study (1988); Zheng, `Defining the Relationships and Resolving the Conflicts between Interrelated Multinational Trade Agreements: The Experience of the MFA and the GATT', 25 Stan. J. Int'l L. (1988) 45. At the Uruguay Round of the GATT negotiations, a new Agreement on Agriculture was agreed upon. Under this agreement, GATT/WTO members are required to eliminate quantitative restrictions on agricultural imports within a six-year period. The Agreement on the Application of Sanitary and Phytosanitary Measures aims at restricting the use of inspection requirements and safety rules to exclude foreign agricultural products. The Agreement on Textiles and Clothing aims at phasing out the MFA and other quantitative restrictions over a ten-year period. 102 The newly industrializing countries are South Korea, Taiwan, Hong Kong and Singapore. A.H. Amsden, Asia's Next Giant: South Korea and Late Industrialization (1989), also includes Brazil, Turkey, India and Mexico. Other fast growing countries include Indonesia, Malaysia, Mauritius and Botswana. Japan is now considered a developed country. According To Chimni, `Political Economy of the Uruguay Round of Negotiations: A Perspective', 29 International Studies (1992), during the Ururguay Round of the GATT, developing country members were in `disarray and disunity' and pursued individual interests at the expense of solidaristic goals which would have been achieved had these countries pursued a coalitional strategy. Among the reasons Chimni identifies as having potentially affected a coalitional strategy among Third World countries was the bifurcated nature of the negotiation procedure in the Uruguay Round: negotiations for trade in goods, on the one hand, and trade in services on the other, were undertaken separately and then reports made to the Trade Negotiations Committee. Chimni notes that this bifurcation may have limited the use of coalitional strategies used by developing countries in forums such as the United Nations Conference on Trade and Development (UNCTAD). Chimni also notes that developed countries used divide-and-rule tactics with developing countries. Such included threats of punitive extension/denial of retaliatory trade privileges. India and Brazil, which would have provided leadership for developing countries, were singled out for application of the United States Omnibus Trade and Competitiveness Act (OTCA) by restricting their quantitative export privileges to the United States. For another excellent analysis of this theme, see C. Raghavan, Recolonization: GATT, The Uruguay Round and the Third World (1990), esp. at 69-80. Chimni also notes that the preferential treatment given to developing countries to enable them to meet balance of payments obligations in the GATT regime was undermined in the Uruguay Round of negotiations. 103 See Lothian, `The Democratized Market Economy in Latin America (and Elsewhere): An Exercise in Institutional Thinking within Law and Political Economy', 28 Cornell Int'l L. J. (1995) 169; R.M. Unger, What Should Legal Analysis Become? (1997); Mkandawire, `Beyond Crisis: Towards Democratic Developmental States in Africa', paper presented at the conference on `Crisis, Conflicts and Transformations: Responses and Perspectives', Council for the Development of Social Science Research Council in Africa, 26th June-2nd July, 1995.
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