Series Editor’s Preface
In a recent essay, noted intellectual historian Samuel Moyn observes that in the explosion of recent work in the history of international law, the ‘historiographical interest in the continuity of [international law’s] imperial entanglements’ has dwarfed the examination of the period of the ‘decolonization of international law’ that took place between 1950 and 1970.1 The eighteenth and nineteenth century transformations of a European public law in to a universal legal order had, as Hegel well-understood, entailed the subordination and incorporation of vast numbers of peoples not-yet-able to conform to the political and social mores of European public law, into empires.2 But between 1950 and 1970, an epoch-making transformation of international society took place: several intercontinental empires dissolved into dozens of new nation-states, at the outset through violent and often brutal conflicts between colonizer and colonized,3 and then by a rapid ‘delegitimization of any kind of political rule that is experienced as a subjugation’ of a population by alien occupants.4 The result, as Jörg Fisch observes, was that while hitherto trusteeship and colonial domination in international law had been seen as serving the advancement of progress, ‘Colonial domination was [made] illegitimate per se and therefore had to be eliminated as quickly as possible . . . now colonialism prevented the development of colonial peoples’.5 Between 1945 and 1965, sixty-seven new states were admitted as members of the United Nations (UN), transforming its membership from overwhelmingly western and European to Asian, African, and Latin American by a substantial majority. In 1960 alone, seventeen new states joined the UN, sixteen from Africa.
The result of this revolution in the membership of the society of states had immense consequences for the content of international law. Jansen and Osterhammel note that decolonization challenged the ‘conceptual underpinnings of the
1 Samuel Moyn, ‘The High Tide of Anti-colonial Legalism,’ Journal of the History of International Law, forthcoming, at note 14.
2 Hegel, Elements of the Philosophy of Right (Allen W. Wood, ed) (Cambridge University Press, 1991), 367–371.
3 Famously accounted for in Hegelian and psychoanalytic terms as a negation of a negation, by Frantz Fanon. Fanon, The Wretched of the Earth: ‘Decolonization is the meeting of two forces, opposed to each other by their very nature, which in fact owe their originality to that sort of substantification which results from and is nourished by the situation in the colonies. . . . Decolonization is the veritable creation of new men. But this creation owes nothing of its legitimacy to any supernatural power; the ‘thing’ which has been colonized becomes man during the same process by which it frees itself.’ (Farrington, trans. Grove Press, New York, 1963) 36–37.
4 Jan C Jansen and Jürgen Osterhammel, Decolonization: A Short History (Princeton, 2017), 1–2.
5 Jörg Fisch, The Right of Self-Determination of Peoples: The Domestication of an Illusion (Anita Mage, trans. Cambridge, 2015) 205.
international order’.6 It delegitimized colonialism and racism at the level of international society, and also ‘contributed greatly to the process that gradually made the principle of national state sovereignty absolute and uncontestable’.7 But as Getachew has recently argued, it would be a mistake to understand decolonization as limited to state-making and thus simply reproducing the logic of international law as jus intergentes. Rather, through international law and international institutions, anti-colonial nationalists pursued both state-making and ‘worldmaking’: ‘rather than foreclosing internationalism, the effort to achieve national independence propelled a rethinking of state sovereignty, inspired a far-reaching reconstitution of the postwar international order, and grounded the twentieth century’s most ambitious vision of global redistribution.’8
It is the history of this period of attempted worldmaking in and through a struggle over international law, that this important collection of essays begins to tell. The editors contend that the period from 1950 to 1970 should be seen as a ‘Sattelzeit,’ invoking Koselleck’s well-known term. Enigmatic in both English (‘saddle-time’) and German, the concept connoted Koselleck’s theory that a certain period of European history was formative for the emergence of modernity because it was in this time that ‘a broad series of political concepts acquired their current meanings, and that both defined and reflected the fundamental experiences’9 of the present. In the story that emerges from the chapters of this volume, decolonization and the rise of the Third World, under the structuring conditions of US-Soviet enmity, resulted in an ambitious attempt to reformulate an international law that had hitherto been a handmaiden of imperial designs, challenging and revising key concepts in international law in ways that registered the imperatives of the postcolonial states. ‘The verbal vendetta against the so-called European international law makes sense,’ wrote UpendraBaxi in a 1973 essay, ‘only as an articulation of the powerful urge felt by emancipated nations for self-assertion as a pre-condition for an international egalitarian order.’10 But, he noted, ‘all emancipated nations are groomed in, and have an interest in the corpus of international law as developed in the preceding three centuries.’11 The belief in the possibility of international law under transformed global political, economic and legal conditions, is one that deeply shaped the imaginary of international law even in the west after 1960.
The volume proceeds with chapters on key sites, concepts, and individual protagonists, delineating the contours of the battlelines in respect of terms such as the
6 Jansen and Osterhammel, 153.
7 Ibid.
8 AdomGetachew, Worldmaking after Empire—The Rise and Fall of Self-Determination (Princeton, 2019) 3.
9 George S Williamson, ‘Retracing the Sattelzeit: Thoughts on the Historiography of the French Revolutionary and Napoleonic Eras,’ Central European History 51 (2018) 66–74, 68.
10 UpendraBaxi, ‘Some Remarks on Eurocentrism and the Law of Nations’ in RP Anand, ed, Asian States and the Development of International Law (Vikas, Delhi, 1973) 5.
11 Ibid 7.
common heritage of human kind, acquired rights, jus ad bellum and permanent sovereignty over natural resources, and institutions such as the ICJ and the World Bank. The picture which emerges is necessarily incomplete, as this impressive volume of collected essays represents an important starting point for a whole new oeuvre of history that begins to pull more determinedly at specific threads of the stories that are gathered together here. One implication is clear, though: the period 1950 to 1970, which was at once the epoch of Cold War and decolonization, was anything but a hiatus of international law making.12 It was,if anything, a period of surprising anticipation of the potential to forge a new global order of economic and political justice, within and through an international legal order of co-existence and cooperation: sovereign equality and non-intervention were to be buttressed, and go hand in hand, with state-led economic development and an internationalized welfarism epitomized in the plan for a New International Economic Order.13
Oddly, this quite-recent past seems in many ways stranger to us than earlier epochs—such as the early modern European contexts of the reinvention of the jus gentium and the jus naturale, the historiography of which is more established. As Moyn suggests in his essay mentioned above, less than seventy years after decolonization began to gather force and speed, it now requires some effort to recover the intelligibility of the hopes and illusions that characterized the ‘long transition from imperial to cosmopolitan dreams.’14 This could be because, as Dann and von Bernstorff as well as Moyn point out, the dreams of an egalitarian post-colonial order in global law and politics steadily retreated, not due to a re-embrace of direct imperial and colonial rule, but through a radical recasting of both former imperial and postcolonial states’ relationship to economic governance.15 But the legal and political concepts of Dann and von Bernstorff’s international legal Sattelzeit remain very much part of our experience of the international legal order, even as they appear now the subject of a new and more centripetal battle over their content and order-giving possibilities. If we are to have a chance of grasping what is at stake in the present contestation, we need to better understand the battles that went before.
Nehal Bhuta
Edinburgh July 2019
12 On the critique of Cold War as hiatus, see: Matt Craven, Sundhya Pahuja, and Gerry Simpson, ‘Reading and Unreading: Historiographies of Hiatus’, in Craven, Pahuja and Simpson (eds) International Law and the Cold War (Cambridge University Press, 2019).
13 See the special issue of Humanity on ‘The New International Economic Order,’ Volume 6, Issue 1 (2015).
14 Moyn, ‘The High Tide of Anti-colonial legalism’, p 7.
15 See now the new locus classicus, Quinn Slobodan, The Globalists: The End of Empire and the Birth of Neo-Liberalism (Harvard, 2018).
List of Abbreviations
AA Afro-Asian
AD Anno Domini
AFROSEC Afro-Asian Organization for Economic Cooperation
AIDS Acquired Immune Deficiency Syndrome
AJIL American Journal of International Law
ANC African National Congress
ARAMCO Arabian American Oil Company
ASSR Autonomous Socialist Soviet Republic
BIS Bank for International Settlements
BIT Bilateral Investment Treaty
BSAC British South Africa Company
CDDH Notification system of the Conférence Diplomatique sur la Réaffirmation et le développement du Droit International Humanitaire Applicable dans les Conflits Armés
CEPAL Comisión Económica para América Latina y el Caribe
CERD United Nations Committee for the Elimination of Racial Discrimination
CHM Common Heritage of Mankind
CIA Central Intelligence Agency
CSCE Conference on Security and Cooperation in Europe
CTC Counter-Terrorism Committee
DoS Department of State
ECLAC Economic Commission for Latin America and the Caribbean
ECOSOC United Nations Economic and Social Council
EEC European Economic Community
EJIL European Journal of International Law
EPTA Expanded Programme for Technical Assistance
ESC European Social Charter
EU European Union
FCN treaty Treaty of Friendship, Commerce and Navigation
FFI French Forces of the Interior
FLN Front de Libération Nationale
G77 Group of 77
GA General Assembly
GATT General Agreement on Tariffs and Trade
GDP Gross Domestic Product
GEP Group of Eminent Persons
GNP Gross National Product
HIV Human Immunodeficiency Virus
IBRD International Bank for Reconstruction and Development
xvi List of Abbreviations
ICAO International Civial Aviation Organisation
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICERD Convention on the Elimination of All Forms of Racial Discrimination
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ICJ Rep International Court of Justice Reports of Judgements, Advisory Opinions and Orders
ICLQ International and Comparative Law Quarterly
ICRC International Committee of the Red Cross
ICSID International Centre for Settlement of Investment Disputes
IDA International Development Association
IFAD International Fund for Agricultural Development
IFC International Finance Corporation
IFI International Financial Institutions
IHL International Humanitarian Law
ILC International Law Commission
ILCA International Law and Colonialism in Africa
ILM International Legal Materials
ILO International Labour Organization
ILR International Law Reports
IMF International Monetary Fund
IO International Organisation
IPJET International Platform of Jurists for East Timor
ISA International Seabed Authority
ISI Import Substitution Industrialization
ISIs Import Substitution Industrialization Strategies
ITO International Trade Organization
LGDJ Librairie générale de droit et de jurisprudence
LSE London School of Economics
MNC Multinational Corporation
NAM Non-Aligned Movement
NATO North Atlantic Treaty Organization
NGO Non-Governmental Organization
NIEO New International Economic Order
NLR Nigerian Law Review
NY New York
OAS Organization of American States
OAU Organization of African Unity
OECD Organisation for Economic Cooperation and Development
ONU Organisation des Nations Unies
ONUC Opération des Nations unies au Congo
OPEC Organization of the Petroleum Exporting Countries
OPIC Overseas Private Investment Corporation
PAC Pan African Congress
PCIJ Permanent Court of International Justice
PLO Palestine Liberation Organisation
PSNR Permanent Sovereignty of Natural Resources
RIIA Royal Institute of International Affairs
RPSNR Resolution on the Permanent Sovereignty over Natural Resources
RSFSR Russian Soviet Federated Socialist Republic
SUNFED Special United Nations Fund for Economic Development
SWAPO South West African Peoples Organisation
TAB Technical Assistance Board
TRC Truth and Reconciliation Commission
TW Third World
TWAIL Third World Approaches to International Law
UAS Union of African States
UDHR Universal Declaration on Human Rights
UK United Kingdom
UN United Nations
UNCIO United Nations Conference on International Organization
UNCLOS United Nations Convention on the Law of the Sea
UNCTAD United Nations Conference on Trade and Development
UNCTC United Nations Centre on Transnational Corporations
UNDP United Nations Development Programme
UNEF United Nations Emergency Force
UNESCO United Nations Educational, Scientific and Cultural Organization
UNGA United Nations General Assembly
UNIDO United Nations Industrial Development Organization
UNITAR United Nations Institute for Training and Research
UNDP United Nations Development Programme
UNSC United Nations Security Council
UNSG United Nations Secretary General
UNTAET UN Transitional Administration in East Timor
UNTAG UN Transition Assistance Group
UNTS United Nations Treaty Series
UNTSO United Nations Truce Supervision Organization
US United States
USAID United States Agency for International Development
USSR Union of Soviet Socialist Republics
VCLT Vienna Convention on the Law of Treaties
VCSSPAD Vienna Convention on Succession of States in respect of State Property, Archives and Debts
WB World Bank
WEO World Economic Outlook
WIPO World Intellectual Property Organization
WSOY Werner Söderström Osakeyhtiö
WTO World Trade Organization
ZANU Zimbabwe African National Union
The Battle for International Law
An Introduction
Jochen von Bernstorff and Philipp Dann
I. Introduction
On 14 December 1960, five years after the Bandung Conference, the UN General Assembly (UNGA) with an overwhelming majority of 89 votes did ‘solemnly proclaim(s) the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations’.1 No state voted against the resolution, but all of the still-existing colonial powers, including the US, abstained. By the mid1970s more than two-thirds of the world’s population lived in ‘newly independent states’ having emerged from the former Western and Asian Empires, increasing the absolute number of states dramatically from fifty-one in 1945 to 144 in 1975.2 This meant not just a numerical change. Instead, the decolonization era came with a fundamental challenge to (legalized) Western hegemony through a new vision of the institutional environment and political economy of the world. It is during this era, which arguably was couched between classic European imperialism and a new form of US-led Western hegemony, that fundamental legal debates took place over a new international legal order for a decolonized world. In fact, this book argues that this era presents, in essence, a battle that was fought out by diplomats, lawyers, and scholars, particularly over the premises and principles of international law. In a moment of relative weakness of European powers, ‘newly independent states’, and international lawyers from the South fundamentally challenged traditional Western perceptions of international legal structures.
In the words of George Abi-Saab, who himself became a protagonist in this endeavour, the third world rejected
the traditional view staunchly held in Western quarters, that a new State is born in a legal universe that binds it, newly independent Third World States started
1 Declaration of the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 December 1960) UN Doc A/RES/1514(XV); for the voting record, see UN Doc A/PV.947, GAOR 15th Session, 1273–74.
2 See ‘Growth in United Nations Membership, 1945–present’ <https://www.un.org/en/sections/ member-states/growth-united-nations-membership-1945-present/index.html> accessed 6 August 2019.
Jochen von Bernstorff and Philipp Dann, The Battle for International Law: An Introduction In: The Battle for International Law: South-North Perspectives on the Decolonization Era. Edited by: Jochen von Bernstorff and Philipp Dann, Oxford University Press (2019). © The Several Contributors. DOI: 10.1093/oso/9780198849636.003.0001
Philipp Dann
by contesting the alleged universality and legitimacy of the international legal system: a system developed without their participation and used to justify their subjugation; an unjust system, for whilst formally based on sovereign equality and hence reciprocity, in actuality it works in one direction and in favour of one side only; and finally an antiquated system that does not correspond to contemporary conditions and their specific needs.3
International law was at the centre of these decolonization struggles, constituting for third-world international lawyers both an emancipatory promise and manifestation of colonial subjugation, and for Western internationalists a wellknown but now threatened order. Up until the early 1950s, international law had been a discursive structure clearly dominated by Western speakers and upheld through communications of diplomats, scholars, and other institutional and individual actors. This language of international law was in itself unstable and highly indeterminate. It was structurally shaped by its nineteenth-century legacy of differentiating between the ‘civilized’ Europeans (the centre) and the others—the ‘non-civilized’ at the periphery—even though the standard of civilization as such had increasingly fallen into disrepute in the first half of the twentieth century.4 That international law was a central battlefield for a new world order was at the same time surprising as well as expected. It was perhaps surprising in that international law in the eyes of many protagonists was somewhat discredited as a mechanism enshrining the old order, to fortify and justify it as a just and necessary structure. Law was hence seen as a powerful tool of subjugation. At the same time, for many of the governments and scholars, international law was also the central medium to achieve a fundamental reform of the old order, to remedy substantive injustices through peaceful cooperation. It nonetheless remained one of the central problems and in a way paradoxical that the third world saw itself compelled to fight the battle within the normative language of the colonizers, that is—within international law. With greater numbers of new states gaining formal independence during this era international law was fundamentally challenged on various levels: new voices from the third world appeared on the scene and became part of international legal discourse.5 Formal independence from the metropoles as a political event made some of these voices heard in the centre, provoking counter-reactions and thus opened the ‘battle’ for international law. Others remained marginalized and continued to be silenced and unheard outside of their local and domestic contexts. Some of these new voices asked for a new international law to be a ‘clean slate’
3 Georges Abi-Saab, ‘The Third World Intellectual in Praxis: Confrontation, Participation, or Operation Behind Enemy Lines?’ (2016) 37 Third World Quarterly 1957, 1958–59.
4 Gerrit W Gong, The Standard of Civilization in International Society (Clarendon Press 1984); Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2008) ch 2 and 3, especially pp 109–10 and 182–94 (hereafter Anghie, Imperialism).
5 On these voices, see the contributions to this volume in Part II. A.
and to govern the relationship between peoples and human beings on this globe beyond the existing Western order, which they rejected, claiming that the new participants could not be bound by a system created without them—or even with the apparent intention of subjugating them. Other protagonists wanted the third world to ‘enter’ the existing discursive structures based on the concept of equal statesovereignty, taking a (sometimes more, sometimes less radical) reformist approach to the concepts, rules, and principles traditionally subsumed under the term international law by the centre.
These voices pulled various sites and fields into the discursive battle that was international law—fields as diverse as were the main protagonists and their strategies: negotiations on new fundamental multilateral treaties6 were turned into battle-sites. In addition, central concepts of existing international law such as sovereignty, non-intervention, and self-determination, as well as the main tenets of international economic law, were subject to significant controversy within and outside of the United Nations (UN).7
These debates and their third-world international legal protagonists, as well as the new embattled concepts, have often been portrayed as a short-lived Southern or socialist (Cold War-) revolt within UNGA with ultimately minor and negligible implications for international law and legal scholarship. As the contributions to this volume show, nothing could be more mistaken. Not only that the outcome of this battle has fundamentally shaped what we presently conceive of as international legal structures. With hindsight, we hold that international legal structures in many areas of international relations have been transformed during this era, albeit with the effect of enabling a transition from classic European imperialism to new forms of US-led Western hegemony. The underlying aspirations, strategies, and failures of this battle thus are of vital importance for any future project aiming to address and alter the relationship between international law and fundamental inequalities in this world.8 In that sense, this volume attempts to provide an intellectual history of the transformation of international law in the 1950s to 1970s and to offer a better understanding of the contestations to the then-dominant perceptions of order. By doing so it aims to give the reader a better grasp of how the world became what it is today by new historical insights into the conditions, contingencies, and necessities of what led to its current depressing and desolate state. The remainder of this introduction proceeds in three steps. Section II provides a broader context of the ‘decolonization era’, the aspirations,
6 For example, the two international human rights covenants, the Vienna Convention on the Law of Treaties, the Vienna Conventions on State Succession, the UN Convention on the Law of the Sea, and the two Additional Protocols to the Geneva Conventions.
7 On different fields of battle, see the contributions to this volume in Part I.
8 See Nils Gilman, ‘The New International Economic Order: A Re-Introduction’ (2015) Humanity 1 (who wonders how it came that an agenda that was seen in its time as necessary and fundamental is today almost forgotten or rejected as unrealistic).
and challenges shaping the battle for international law during this time. Section III introduces the central battle fields. Finally, Section IV looks at the protagonists of battle, that is, authors and scholarly landscapes in which they were set, as well as institutions (III.).
II. The battle period: context and characteristics
1. 1950s–1970s as Sattelzeit
The dominant narrative stresses the years of 1945 and 1989 as major turning points in the history of the global order and international law. We want to offer an alternative reading, highlighting the changes that begin to occur in the early 1950s as a transformative phase leading into what is called the ‘decolonization era’—a period of time situated between the end of post-1885 European imperialism in the mid1950s and the beginning of unipolar US hegemony in international relations of the 1980s and 1990s.9 With this periodization, we argue for an alternative and less Eurocentric perspective on the history of international law.10
The third world quest for formal independence first culminated as a conscious and concerted ‘trans-civilizational’ movement with the Afro-Asian Bandung Conference in 195511 and lasted roughly until the mid-1970s with the Declaration on the New International Economic Order. It opened a new chapter in world history. It marked the end of classic European-led imperialism that had crystallized in the Berlin conference of 1885, when only fourteen Western states had carved up Africa without any Asian or African participation, but continued during the negotiations of the UN Charter in 1945, when mere eleven out of fifty-one negotiating states came from Africa or Asia. The post-Bandung era marked the moment in which international law, for the first time, could claim to constitute a universal legal order at least in a formal and geographical sense.12 Beginning in 1966, sixty-one states from Africa or Asia constituted a majority within the UNGA, in which ‘most of the world’ (as Partha Chatterjee aptly put it13) were at least formally represented.
9 On periodizations and their implicit authorization and de-authorization of different narratives and perspectives. Oliver Diggelman, ‘The Periodization of the History of International Law’ in Bardo Fassbender and Anne Peters (eds) Oxford Handbook on History of International Law (OUP 2012) 997; see also Pahuja and Saunders, Chapter 6, this volume.
10 Pahuja and Saunders (this volume) write: ‘Periodization is always an argument, never a fact’.
11 Luis Eslava, Michael Fakhri and Vasuki Nesiah, ‘Introduction’ in Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds) Bandung, History and International Law: Critical Pasts and Pending Futures (CUP 2018) (hereafter Eslava et al., ‘Introduction’); Onuma Yasuaki, A Transcivilizational Perspective on International Law: Questioning Prevalent Cognitive Frameworks in the Emerging Multi-Polar and MultiCivilizational World of the Twenty-First Century (Hague Academy of International Law 2010).
12 Eslava et al., ‘Introduction’ (n 11).
13 Partha Chatterjee, Politics of the Governed: Reflections on Popular Politics in most of the World (Columbia University Press 2004).
The three decades between the early 1950s and late 1970s connect the end of ‘classic’ European imperialism with the long rise of US dominance in international relations and a specific model of global capitalism, which was often called ‘neoimperialism’ or ‘neo-colonialism’ by critical contemporary voices.14 One could understand these years according to Koselleck’s Sattelzeit concept15 the bridging of two different forms of global Western dominance—a transitional phase in which fundamental concepts of international law were re-imagined, politicized, and transformed. These debates were also influenced by the ideological and military rivalry between the US, the USSR, and China, often referred to as the Cold War. The threat of a nuclear stand-off between the US and the Soviet Union especially shaped popular and scholarly perceptions of international politics during this time, masking to an important degree the continuous rise of US economic, political, and cultural dominance in the world. According to Koselleck, such a transitional phase is marked by a change of meaning of ‘constitutive’ political and legal concepts. Through politicizing, contesting, and defending the content of normative structures, the politico-legal fabric is transformed and then subsists over time in a new historical era.16 As to international law between the 1950s and 1970s these battles over meaning and new content of rules were the result of the collapse of European imperialism; at the surface, they played out in legal debates around doctrinally recognized ‘sources’ of international law—in new legislative projects through multilateral conventions, in disputes over changing customary law, and in discursive battles over the meaning of general principles of international law. At the same time, these discursive battles represented deeper challenges and politizations of entrenched post-1885 international legal structures and normative assumptions, such as the pervasive standard of civilization and assumed racial hierarchies. While the third world’s battle for a new international law succeeded in abolishing central discursive structures created by European imperialism, it ultimately could not prevent new forms of Western domination from being established, which, in that sense, are a product of the battle for international law. Western governments and international lawyers managed in a classic hegemonic move to translate the discursive rifts created by the Third-World attacks into reforms and processes of restructuration, again portraying Western interests in a new world of formally independent states as universal interests.17 International legal discourse and the inherent conservative bias of law as ingrained social practice was used by Western actors to counter requested revolutionary innovations as incompatible with the
14 Kwame Nkrumah, Neo-Colonialism: The Last Stage of Imperialism (International Publishers 1965).
15 Reinhart Koselleck, ‘Einleitung’, in Otto Brunner, Werner Conze and Reinhart Koselleck (eds), Geschichtliche Grundbegriffe, vol 1 (Klett-Cotta 1994) XV.
16 ibid.
17 Ernesto Laclau, ‘Identity and Hegemony: The Role of Universality in the Constitution of Political Logics’ in Judith Butler, Ernesto Laclau and Slavoj Zizek, Contingency, Hegemony and Universality: Contemporary Dialogues on the Left (Verso 2000) 44.
von Bernstorff and Philipp Dann
‘system’ or internal ‘coherence’ of a specific notion of ‘international law’.18 As this volume shows, this Western process of thwarting the attacks launched by the third world saw the use of further hegemonic discursive moves, including ‘boundary drawing’19 between the political and the legal,20 international and national,21 private and public,22 and legal and economic aspects23 in order to exclude revolutionary arguments from the legal battle sites. Another frequent tactic was to integrate substantive claims made by the third world in legal and policy projects under Western institutional control in order to eat up their revolutionary potential.24 And while the standard of civilization became abolished, separate or antagonistic treatment of the new governments in the peripheries of Western powers could be argued because of them being different as ‘newly independent’, ‘non-industrialized’, ‘developing’, ‘dysfunctional’, or ‘debtor’ or ‘socialist’ states. Another hegemonic use of international law was to replace multilateralism by bilateral treaty relations in which the power asymmetry between the superpower or former metropole on the one side, and the newly independent government on the other, could be brought to bear in an unmediated fashion. All these discursive Western countermoves were supported frequently via economic and military coercion emanating from Washington and the old metropoles, rivalled only by Moscow.
2. Precursors, aspirations, and momentum
The contestation of Western colonial domination, the struggle for independent statehood and formal equality of all nations had started long before 1955.25 However, it was only then that it actually triggered a process of liberation of most Asian and African societies from direct colonial rule. From the perspective of the colonized, neither the League of Nations nor the foundation of the UN had been a major breakthrough in their quest for independence. National self-determination at least as a proto-legal concept was on the international agenda dating at least from Wilson’s famous 14 points, although it was originally a principle not conceived as
18 Bernstorff this volume; on ‘conservative or status quo-oriented choices’ in international legal practice (Martii Koskenniemi, From Apology to Utopia (CUP 2006) 610).
19 Term used by Joscha Wullweber, ‘Constructing Hegemony in Global Politics: A DiscourseTheoretical Approach to Policy Analysis’ (2018) 40 Administrative Theory and Praxis, relying on Laclau’s concept of ‘social heterogeneity; Ernesto Laclau, On Populist Reason (Verso 2005) 139–56.
20 Von Bernstorff Chapter 2, this volume.
21 Pahuja and Saunders Chapter 6, this volume.
22 Craven Chapter 4, this volume, referring to Carl Schmitt’s Nomos of the Earth
23 Sornarajah Chapter 7, this volume.
24 Dann Chapter 12, this volume.
25 Joge Esquirol, ‘Latin America’, in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of International Law (OUP 2012); Arnulf Becker Lorca, Mestizo International Law (CUP 2014) (hereafter Becker Lorca, Mestizo International Law).
ripe for universal application.26 In contrast to Lenin’s The Right of Nations to SelfDetermination (1914), during the Peace Conference Wilson explicitly stated that ‘it was not within the privilege of the conference of peace to act upon the right of self-determination of any peoples except those which had been included in the territories of the defeated empires’.27
As Mitchell and Massad demonstrate, Wilson`s approach to self-determination before and during the Peace Conference was not only a selective one but also had managed to turn Lenin’s anti-colonial understanding of self-determination into an ambivalent concept that could be used for stabilizing and normalizing colonial relationships.28 Of his famous fourteen points, the fifth promised ‘a free, open minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable government whose tile is to be determined’. The idea to introduce a balancing test between native ‘interests’ or consent and the interests of the colonizer acting as a trustee of ‘civilization’ had its roots in the 1885 Berlin Conference, where the US pushed for legitimation of territorial control through formalized agreements with native ‘chiefs’.
During the Peace Conference it was the highly influential Jan Smuts, a South African politician and adviser to both the United Kingdom (UK) and the United States (US) government, who managed to convince Wilson to create a mandate system along these lines. Independence was an issue only for fully ‘civilized’ peoples—for all other populations consent and paternalistic consideration of local interests sufficed. Smuts helped to amalgamate the concept of self-determination with the older quest of white settler colonies for ‘self-rule’ and independence visa-vis the metropole within larger imperial structures.29 Both for settler colonies and for direct forms of colonialism, the formal consent of local rulers, representing ‘communities’ usually set up by the colonizers for this very purpose, was supposed to strengthen the legitimacy of the colonial project.30 When local consent was clearly absent, balancing between the interests of ‘civilization’ represented by the colonizer (or white settlers) and local resistance would, in the eyes of most Western international lawyers, inevitably tilt towards the colonizer. Additionally, both world organizations institutionalized supervisory structures for mandates
26 Erez Manela, The Wilsonian Moment: Self-Determination and the International Origins of Anticolonial Nationalism (OUP 2009); see also Barsalou and Bowring this volume.
27 On the reception of Lenin’s and Wilson’s diverging concepts: Joseph Massad, ‘Against-SelfDetermination’ (2018) 9 Humanity (hereafter Massad, ‘Against Self-Determination’).
28 ibid; see also Timothy Mitchell, Carbon Democracy: Political Power in the Age of Oil (Verso 2013) (hereafter Mitchell, Carbon Democracy).
29 Mitchell, Carbon Democracy (n 28) 72; Massad, ‘Against Self-Determination’ (n 27).
30 Mitchell, Carbon Democracy (n 28) 80; see also on the British use of self-determination language in order to legitimize empire, Susan Pedersen, The Guardians: The Legend of Nations and the Crisis of Empire (OUP 2017) 109.
Philipp Dann
(League of Nations) and trust territories (UN) in their founding documents, based on that same balancing logic shying away from a radical break with the colonial era.31 It found its expression in the mandate or trusteeship concept as such, which presupposes that the colonized still need the colonizer to gradually lead them to a higher Western state of ‘civilization’, which will then allow for self-rule and independence. In that sense, self-determination as used by European jurists had a different and much more flexible meaning in the colonial context than it had in an intra-European one, where, over the course of the nineteenth century, it had become an ‘all or nothing’ discursive vehicle of nation building and the quest for immediate and fully independent statehood. As applied in the peripheries of the great powers, the concept thus came with a normalizing internal structure inscribed by the standard of civilization. One of the legacies of the Bandung Conference and GA-Resolution 1514 is bringing into disrepute the normalizing dimension of the concept of self-determination in the colonial context, and in doing so, substantively transforming twentieth-century international legal structures.
Couched between phases of Western dominance, the battle for international law was shaped by a growing momentum and optimism by Third-World protagonists and contemporaries about ‘decolonization’ and its potential. At the beginning, under the leadership of politicians like Jawaharlal Nehru (India), Gamal Abdel Nasser (Egypt), Kwame Nkrumah (Ghana), Josip Broz Tito (Yugoslavia), and Sukarno (Indonesia), the third world seemed relatively united in its attempt to occupy a space of neutrality in the Cold War’s ideological confrontation.32 The non-aligned movement as it emerged right after the Bandung conference was a selfconfident counterproposal to the existing structure of international relations and their legal underpinnings. The widely shared experience of colonial subjugation and liberation was turned into a new ideal of international relations that rejected interventionism, exploitation, and racism—and demanded the respect for equality, non-interference, non-violent solution of conflicts, and material solidarity. The foundation of the UN Conference for Trade and Development (UNCTAD) was meant to further institutionalize this cooperative quest for a joint international agenda beyond the bloc confrontation. With the 1960 UNGA Resolution 1514 on ‘the granting of Independence to Colonial Countries and Peoples’, the group of newly independent countries had already shown its growing assertiveness in using the UN as platform. There was also an increased willingness to create institutional structures for their demands. Against this background, the soon widely popular notion of third world, as coined by Alfred Sauvy, the French journalist and anthropologist, captured much of this idea. In reference to Abbe Sieyes’s notion of
31 Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton University Press 2013).
32 Robert J McMahon, ‘Introduction’ in Robert J McMahon (ed), The Cold War in the Third World (OUP 2013) 1; Khan, Group of 77, MPEPIL (2011) para 5; Vijay Prashad, The Darker Nations: A People’s History of Third World (The New Press 2008).
the third estate in the context of the French revolution, the notion expressed the self-understanding of the newly independent governments to represent the majority of states and people in the world and the demand that this world’s democratic majority should not just be recognized in its position, but also granted its effective rights as democratic majority. It was not a hierarchical notion in the sense of the ‘also-ran’ third (behind the first and the second) world, but the proud emancipative voice of the democratic majority.
At the same time, the (post-Bandung) decolonization movement in many ways continued earlier struggles of the Latin American states, the Ottoman Empire, China, and other non-Western states for full recognition of the principles of formal equality and non-intervention. Their early twentieth-century struggles for independent statehood and against unequal treaties, gunboat diplomacy, extraterritorial jurisdiction, corporate exploitation, and institutional under-representation in many ways served as blueprints for the third world before and after decolonization.33 These early twentieth-century struggles for full inclusion into—and modification of—nineteenth century European international law also had made it virtually impossible for the Europeans to infinitely defer formal decolonization in Africa and Asia. Already within the League of Nations, references to civilizational superiority as a justification for colonial rule had increasingly become discredited as an official argument.34 The gradual demise of the standard of civilization as a widely shared official European doctrine in the 1930s prepared the ground for the non-discrimination clause in the UN Charter and the fight against ‘racialism’ proclaimed in Bandung in 1955. According to scholars of the third world, racism was not only tolerated by international legal structures, but also by a constitutive element of nineteenth-century international law:
International law was imbedded with white racism and thus promoted the interests of the whites while rigorously subordinating those of others. White racial discrimination was thus a fundamental element of international law during the period in question.35
In general, the third world followed the Latin-American emancipatory project in particular in its attempt to adapt international legal structures to its needs from within the system.36 As many of the resistance movements in the third world began in the 1920s and 1930s, the first generation of third world resistance fighters
33 See Eslava this volume.
34 On this development Becker Lorca, Mestizo International Law (n 25); see also: Gary Wilder, Freedom Time: Negritude, Decolonization and the Future of the World (Duke University Press Books 2015); Mohamad Shababuddin, Ethnicity and International Law (CUP 2016).
35 Oji Umozurike, International Law and Colonialism in Africa (Nwamife Publishers 1979) 36 (hereafter Umozurike, Colonialism).
36 Eslava this volume; Becker Lorca, Mestizo International Law (n 25).
was shaped by the legal debates of this era; Ho Chi Min was a delegate at the 1919 Versailles conference. Both the interwar struggles as well as the post-Second World War decolonization movement pressured the governments of the great powers— and their lawyers—to accept that they had a formal right to have the same rights as the great powers granted each other through their diplomatic and legal practice. Statehood, in the European nineteenth-century sense, was regarded as a precondition to receive that status of a sovereign equal.
But the era of the battle for international law was also different than previous moments of decolonization. Regardless of the emancipatory path dependencies, many Third-World politicians and scholars saw independent statehood and UN membership more as a means to the end of radically transforming the international political and economic order, and its law.37 Within reach was a truly universal law, not only in terms of the subjects of that legal order, but also regarding its substantively reformed content, which for the first time would take into account the interests of all states. In that sense, the Third-World project was more revolutionary than that of their Latin-American, Turkish, and East-Asian predecessors. Projects like the New International Economic Order bear testimony of the substantive transformations of colonial and neo-colonial structures that were at the heart of the Third-World battle for a new international law. The battle for international law in the Sattelzeit between the 1950s and the late 1970s thus closely linked two consecutive and interrelated discourses: the initial struggle for formal independence and the one for substantive political and economic independence of the entities now organized in formally recognized states. While international law was eventually being transformed during this era, it was not the change the third world had wanted. In the contemporary view of many Third-World politicians and scholars, it was precisely in this era that colonialism had been replaced by ‘neo-colonialism’, and where both had been sustained by international legal structures imposed on the third world. In his 1958 address to the first Conference of Independent African Sates in Accra, Kwame Nkrumah declared:
The imperialists of today endeavour to achieve their ends not merely by military means, but by economic penetration, cultural assimilation, ideological domination, psychological infiltration, and subversive activities even to the point of inspiring and promoting assassination and civil strife.38
In the literature on this historical period, the battle for international law is often reduced to the recognition of a formal right to self-determination of the colonized, while the struggle for a substantive reversal of international legal structures associated with ‘neo-colonial’ domination goes unmentioned. But
37 On the role of the UN in this process, see Sinclair this volume.
38 Umozurike, Colonialism (n 35) 126.
it is this dimension of the struggle which deserves historical reflection as an unattained quest for a more just world order. Our argument is that this Sattelzeit era brought about the international law of today—not as a simple continuation of colonialism, but as a transformed legal and political order that allows for new forms of hegemonic rule.
3. The quest for statehood
Despite the attempt of a number of Third-World leaders via the non-aligned movement to create a space of neutrality in the Cold War, both colonial legacies and new super-power interventionism into the inevitably weak and contested structures of post-independence statehood made it increasingly difficult, disadvantageous, or impossible for the new governments of the third world not to join one of the major ideological blocs. At the same time, statehood and the quest for ‘development’ were not only largely unquestioned in both ideological blocks, but also came with heavy burdens for the newly independent countries.
The struggle for independence was connected in an ambivalent way to the unquestioned ideal of modern statehood.39 While the independence movements fought for international conditions that made the common goal of independent statehood possible, at home they faced existing colonial proto-state structures,40 which were usually based on the colonial policies of racial segregation and the ‘divide and rule’ strategies of the colonizer, both of which had created and instrumentalized ethnic divisions. Odd Arne Westad describes the experience of local populations with the colonial state, saying:
As such, the state therefore emerged as something extraneous to indigenous populations, even at the elite level. The ‘foreignness’ of the state led to a constant need for policing at all levels, even in the most assimilationist of colonies. And the lack of local knowledge, the availability of labour, and the abundance of resources led to the inauguration of grand projects, intended both to deliver raw materials to the empire and to show the indigenous peoples the efficacy and superiority of the colonial state. It is no wonder that the colonized often described their existence as living within a giant prison.41
39 See Eslava this volume; Bertrand Badie, The Imported State: The Westernization of Political Order (Stanford University Press 2000).
40 Crawford Young, The Colonial State in Comparative Perspective (Yale University Press 1994). For the post-colonial ramifications of this, see Upendra Baxi, ‘Constitutionalism as a Site for State Formative Practices’ (2000) 21 Cardozo Law Review 1183.
41 Odd A Westad, The Global Cold War: Third World Interventions and the Making of Our Times (CUP 2005) 75 (hereafter Westad, The Global Cold War).
As a consequence, local economies at the moment of decolonization were focused on exporting raw materials and had not been built to generate income, let alone welfare, for an independent society. Worse, these new states, with their old colonial borders and their remaining legal structures, often did not correspond to ethnic and linguistic identities or existing societal and political structures on the ground. And the alleged principle of uti possidetis as advanced by the former colonizers made independence dependent on the recognition of these existing colonial borders.
In close connection, the concept of economic growth was equally ambivalent. In many ways the modernization strategy of the new states followed the footpaths of grand scale and often disastrous economic and infrastructural interventions of the late colonial era.42 More subtle, but also more effective, the notion of ‘development’ and the ‘invention of poverty’43 created and dynamized a logic of othering and a ‘rationality of rule’44 that set the ‘underdeveloped’ up for an unwinnable race to catch up with the West, and allowed the North to dictate the standards pursued. Now framed as a universal value and appealing to all, ‘development’ was also considered beyond the realm of political contention, a matter of technocratic reform rather than political struggle.
It is one of the tragic ironies of the decolonization era that modern European statehood and economic growth through industrialization remained a quasiunquestioned ideal of the elites ruling the new states.45 Cooption through education of central parts of the local elites, a key element of colonial control, had prepared the ground for the local appropriation of these concepts. Only very few scholars or elite politicians doubted the necessity to think in these ideals.46 Of course national liberation movements and intellectuals in the third world had a complex and ambivalent attitude towards late nineteenth-century Western modernity and its nationalist, evolutionary, and social-Darwinist undercurrents, oscillating between hatred and admiration, as can be exemplified by Sutan Sjahrir, one of the founders of the Indonesian nationalist movement:
For me, the West signifies a forceful, dynamic, and active life. It is a sort of Faust that I admire, and I am convinced that only by utilization of this dynamism of the West can the East be released from slavery and subjugation. The West is now
42 ibid 79; John Martinussen, State, Market, Society: A Guide to Competing Theories of Development (ZED Books Ltd 1997) 56.
43 Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (Princeton University Press 2011) (hereafter Escobar, Encountering Development); see also Balakrishnan Rajagopal, International Law from Below (CUP 2003) (hereafter Rajagopal, International Law from Below).
44 Sundhya Pahuja, Decolonizing International Law: Development, Economic Growth and the Politics of Universality (CUP 2011) (hereafter Pahuja, Decolonizing International Law).
45 Gilbert Rist, History of Development: From Western Origins to Global Faith (ZED Book Ltd 2008) 100 (hereafter Rist, History of Development).
46 Even a radical critique of Northern neo-colonialism, such as Nkrumah, did not.
teaching the East to regard life as a struggle and a striving, as an active moment to which the concept of tranquillity must be subordinated [ . . . ] Struggle and striving signify a struggle against nature, and that is the essence of the struggle: man’s attempt to subdue nature and to rule it by his will.47
Under the emerging development paradigm, economic, technical, and humanitarian assistance by one of the superpowers, or even by the former colonizers, was in high demand. It was accompanied by a Keynesian engagement of the state in economic development and a broadly shared acceptance of modernization theory held to provide a path to development that was shared in West and East.48 Beginning in the 1950s, Western-dominated financial institutions, such as the World Bank, assumed a central role as lenders for large-scale development projects.49 The UN declared the 1960s a ‘development decade’. Several states and multinational institutions created institutional structure for technical and financial support of these ‘development’ efforts and hence a system of development cooperation infrastructures emerged in West and East.50
This search for outside assistance tragically also required newly independent states to position themselves in the antagonistic Cold War environment. Both the US and the Soviet Union more or less openly attempted to create and preserve ideological, economic, and military ‘satellite-states’ among the former colonies in Africa and Asia. While direct and open military interventions of the two superpowers and the former colonizers over the course of these three decades became less frequent, so called ‘proxy’ wars grew in numbers and intensity: the Vietnam War; the US invasions in Guatemala and the Dominican Republic; the Soviet intervention in Hungary and Czechoslovakia; US-sponsored coups against socialist governments in Iran, Jordan, Congo, Brazil, Indonesia, and Ghana; numerous wars of national liberation inter alia in Algeria, Namibia, Angola, and Guinea; and perhaps most importantly, dozens of other post-independence civil wars in Africa, Asia, and the Middle East with covert participation and support to warring factions delivered by neighbouring states, the US, the Soviets, Cuba, China, or the former European colonizers. The physical and economic violence unleashed in these liberation and post-independence wars created new and deepened existing collective traumas, constituting a heavy burden for most of the new societies emerging out of the ruins of the old empires, and now being politically framed in the iron Gehäuse of the nation state.
47 Sutan Sjahir, Out of Exile (Greenwood Press 1969), quoted after Westad, The Global Cold War (n 41) 77.
48 Walt W Rostow, ‘The Stages of Economic Growth’ (1959) 12 The Economic History Review 1; Rist, History of Development (n 45).
49 Rajagopal, International Law from Below (n 43); Dann this volume; Devesh Kapur, John P Lewis and Richard C Webb (eds), The World Bank: Its First Half Century, Vol 2: Perspectives (Brookings Institutions Press 1997).
50 Philipp Dann, The Law of Development Cooperation (CUP 2013) 37 ff.
III. Sites of battle
At stake was both achieving formal political independence and a substantive reversal of international legal structures. The Western world, for the first time since the early nineteenth century, witnessed a fundamental challenge to the existing order and to its entrenched interests. The conflict over the shape, scope, and the mere possibility of such a reversal was a hard-fought, long, and multifaceted battle. Sites of battle included not only contested re-interpretation of existing concepts, new counter-concepts such as ‘permanent sovereignty over natural resources’, requested reforms of the institutional landscape, and new multilateral treaty projects, but also the more fundamental issue of whether or not the old rules would continue to apply and bind the newly independent states.
1. Delegitimizing alleged pre-independence rules
Generally, all new states faced the continued application of colonial-era international law. Furthermore, numerous rules of customary international law appeared to enable the continuation of colonial relationships, such as the rules concerning the treatment of foreign nationals.51 Since its inception in 1949, the UN International Law Commission was concerned with questions over state succession, for example, the extent to which the new states were bound by international law that existed prior to their independence.52 The 1969 Vienna Convention on the Law of Treaties, the 1978 Vienna Convention on Succession of States in respect of Treaties, and the 1983 Vienna Convention on Succession of States in respect of State Property, Archives and Debts were all results of controversial debates between East and West on the one hand, and between North and South on the other.53 A number of third-world scholars demanded a tabula rasa approach regarding alleged normative ties to pre-independence rules and principles. But even these more radical doctrines remarkably justified their approach within the discursive structures provided by European international law, namely on the basis of consent theories.54 Their central argument was that the new states had not given their consent to the old law and henceforth these rules for them had no binding force.55 In this battle over the validity of the old law, Western diplomats and lawyers
51 See Georges M Abi-Saab, ‘The Newly Independent States and the Rules of International Law: An Outline’ (1962) 8 Howard Law Journal 95, 101.
52 United Nations, Yearbook of the International Law Commission (United Nations 1949) 39; see also MG Maloney, ‘Succession of States in Respect of Treaties: The Vienna Convention of 1978’ (1978/1979) 19 Virginia Journal of International Law 885, 900.
53 For example, the negotiations at the United Nations Conference on the Law of Treaties, Second Session Vienna, 9 April–22 May 1969, Official Records, 90.
54 A Krueger, Die Bindung der Dritten Welt an das postkoloniale Völkerrecht (Springer 2017).
55 Brunner, Chapter 5, this volume.
resorted to the argument that stability and continuity had to be preserved, insisting that with the creation of a new state this entity inevitably gives its tacit consent to the general legal norms of the society it joins.
Again, the third world’s quest for membership in the form of legally normalized European-style statehood came with a heavy price. Accepting the customary rules constructing statehood while rejecting other rules of customary law was a position difficult to defend. Therefore, relatively soon a second line of defence became the argument that if their recognition as new states by this order included acceptance of this order (as Western lawyers argued) then the new states should at least have the ability to reshape this order. Resolutions of the UNGA were seen as a central instrument for such a substantive reform of old Western international law.56 This triggered a fierce debate over the legal nature of such resolutions. It was fostered by Western scholars, who accused the third world of using what they termed ‘an automatic majority’ of decolonized states in the UNGA —a derogatory term immediately criticized by Southern writers.57 While rejecting the arguments about the law-making competence of the UNGA, the North also refused to recognize the validity of other norm-setting initiatives by the decolonized South, not least through the formal ways of non-ratification, reservations, and uncounted interpretative declarations and official statements. Thus, even today, the 1978 Vienna Convention on Succession of States in respect of Treaties merely consists of thirtyseven member states, and the 1983 Vienna Convention on Succession of States in respect of State Property, Archives and Debts has only fourteen.58
1. Condemning interventions by the metropole as ‘aggression’
In their struggle against colonialism and neo-colonialism, the newly independent states focused especially on the principle of sovereign state equality and the related
56 On the contemporary debate, see FB Sloan, ‘The Binding Force of a Recommendation of the General Assembly of the United Nations’ (1948) 25 The British Year Book of International Law 1; M Virally, ‘La Valeur juridique des Recommandations des Organisations Internationales’ (1956) 2 Annuaire Français de Droit International 66; Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations (OUP 1963); Obed Y Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (Springer 1966); Richard A Falk, ‘On the ‘Quasi-Legislative’ Competence of the General Assembly’ (1966) 60 American Journal of International Law 782. On the positions of Elias, see Landauer this volume.
57 See, for example, Mohammed Bedjaoui, ‘A Third World View of International Organizations. Actions Towards a New International Economic Order’ in Georges M Abi-Saab (ed), The Concept of International Organization (UNESCO 1981); Mohammed Bedjaoui, Towards a New International Economic Order (Holmes and Meier Publishers 1979) 144.
58 United Nations Treaty Collection, Chapter XXIII: Law of Treaties, Vienna Convention on Succession of States in Respect of Treaties; United Nations Treaty Collection, Chapter III: Privileges and Immunities, Diplomatic and Consular Relations, etc., Vienna Convention on Succession of States in Respect of State Property, Archives and Debts.
