Conference Report: The Battle for International Law in the Decolonization Era

Forum Transregionale Studien, 5th – 7th November 2015

By Maxim Bönnemann

Does the era of decolonization matter for present international law? Or is the engagement with history just another ivory-tower-style academic exercise, distracting our attention from the “real” problems of today’s world?

The question as such points to the difficult context in which historical reasoning takes place in international law: Being a distinctively future-oriented discipline, which revolves around the idea to “realize utopia”, international law is somewhat dependent on leaving the past behind. It is only by focussing on reforms and improving present law that the idea of a more just world might become achievable. And yet, drawing such a clear line between past and present is misleading. As Anne Orford has argued recently, it is the law itself which is inherently genealogical. Law, Orford writes, is not only a site “for the creation of new obligations but also for the transmission of inherited obligations”[1]. In other words: once a conflict or a hegemonic constellation has inscribed itself into the law, it will constantly revisit us.

Three days in Berlin-Grunewald

Thinking about this relationship between past and present has been the task of the workshop and book project “The battle for international law in the decolonization era”, which took place at Forum Transregionale Studien from 5th to 7th November 2015. The three-day workshop, which had been organised by Jochen von Bernstorff (Tübingen University) and Philipp Dann (Humboldt University Berlin) in the framework of the joint project “Transregional Research” between the Forum and the Max Weber Foundation, faced the challenge of revisiting the position of the newly independent states towards international law. The workshop was attended by a total of 19 participants from all over the world; most of them occupying professional positions as international law teachers.

Themes and Sessions

How did the Global South position itself towards international rules which they had never agreed upon? Which alternative ideas have been formulated? Why did most of them fail? And finally: What might the present look like if the Global South would had been successful in the battle for international law in the decolonization era? These are some of the recurring questions, which were raised in three sessions: The first session dealt with the theoretical landscapes of the decolonization era. Discussions on the newly independent states’ general concepts and the overall institutional context followed in a second session. Finally, being the key pillar of the Global South’s approach towards international law, the New International Economic Order (NIEO) was the subject of the last session. Without going into further detail, the remaining part of this article will give a very brief account of each presenter’s topic.

Session 1: Theoretical Landscape

What role did individual protagonists and regional approaches play in the process of decolonization? This was the leading question of the first session, moderated by Martti Koskenniemi (University of Helsinki). Studying individual protagonists – this was the participant’s common assumption – is an important mode of historical understanding, which goes beyond biographical details. Instead, to cite Anne Peters and Bardo Fassbender in their introduction to the Oxford Handbook of the History of International Law, “individual person’s biographies and ideas can serve as ’keyholes’ through which we can see an entire ‘room’ or historical space”.[2]

The first protagonist, through whom the “room” of decolonization was entered, was the Indian scholar Ram Prakash Anand. Prabhakar Singh (Jindal Global Law School) introduced the life and work of Anand and showed how Anand tried to “rescue” international law by highlighting the Southern heritage of certain international law doctrines. Interestingly, Anand’s legal education is somewhat representative of leading law scholars in the Global South: While being highly sensitive towards the overall intellectual domination of the Global North in the field of international law, at least one station of legal education has been an US ivory league law school. Next, the participants turned to Taslim Olawale Elias (introduced by Umut Öszu from University of Manitoba) and Mohammed Bedjaoui (Carl Landauer, San Franciso), another two central intellectual figures of Third World international law scholarship. Whereas the former had a more pragmatic attitude towards international institutions and is known to a wider public for his membership with the ICJ, Bedjaoui questioned the international order at the very fundament. Turning to different regional traditions in the battle over decolonization, the second part of the first session was introduced with Bill Bowring’s (University of London) thoughts on Soviet approaches towards international law. Bowring especially highlighted the role of the USSR in the transformation of the principle of self-determination of peoples into a legal, hard law, right. Luis Eslava (Kent Law School) shared his thoughts on Latin American approaches and focussed on the fact that claims to sovereignty in Latin America have been framed within the framework of the ‘developmental state’. The session was closed with an overview by Alexandra Kemmerer (MPI Heidelberg) on US American international law scholarship.

Session 2: General Concepts and institutional context

The circulation of general ideas and concepts was the subject of the second session. Beginning with a presentation on state succession, Matthew Craven (LSE) reflected on the role of acquired rights as part of the system of international investment protection. Afterwards, Rotem Giladi from Helsinki University explained in his presentation how international law came to denounce various manifestations of race theories and racial discrimination. Giladi chose to examine the history of the race category through the lens of Israeli diplomats and politicians. Taking the perspective of Israel is particularly revealing, since Israel has been both fighting Apartheid and been accused of imperial practise at the same time. Guy Fiti Sinclair (Victoria University of Wellington) analysed the crucial role of international institutions in the formation of modern statehood. The meaning and expression of modern statehood has been anything but self-evident in the process of decolonization. Sinclair argued that the meaning and expression of modern statehood was rather the very subject of intense contestation in the United Nations.

Examining the South Africa Cases, Ingo Venzke (University of Amsterdam) turned to the role of the International Court of Justice (ICJ) in the era of decolonization. Venzke argued that the ICJ has been both an obstacle to change and an object of strategic interest to the newly independent states. While the sheer “power of numbers” of the newly independent states had led to some successful influence in the ICJ, the court’s practice was still shaped deeply by the European heritage of international law. Finishing the second session, Philipp Dann from Humboldt University explained how the World Bank has been used in order to bypass the UN-system of democratic majorities through the World-Bank-system of weighed voting. Dann showed that the dynamics between UN and World Bank can be illustrated excellently with a dispute between both institutions over the Bank’s continued lending to the apartheid regime in South Africa and Portugal. Referring to its “non-political mandate” the Bank did not consider itself bound by the UN’s Declaration on the Granting of Independence to Colonial Countries and Peoples.

Session 3: The New International Economic Order

Turning to the key project of the newly independent countries, the last session revisited the New International Economic Order (NIEO). Isabel Feichtner (Goethe University Frankfurt) traced the various proposals of the newly independent states for an “international commodities law”. Feichtner illustrated how the new commodities law was aimed to replace the unequal relationship between centre and periphery through a greater share of profits and the establishment of a processing industry. Muthucumaraswamy Sornarajah (National University of Singapore) highlighted how the area of foreign investment protection served as a medium to keep the “the hegemonic structures of imperial international law” alive. Sornarajah showed that even during the very formation of the NIEO, legal constructions have been developed which “elevated” the sovereignty over natural resources from the domestic to the international level. Turning to a principle that has received very little attention in recent histories of the NIEO, Surabhi Ranganathan (Cambridge) delved into the idea of common heritage. While in the “official story” of common heritage, the Global South is enthusiastically picking up the idea of Pardo, the Maltese ambassador, Ranganathan suspects that there is another story to tell. In this story, non-state actors receive more prominence and the central dichotomies of the “official” story have to be questioned. Finally, Sundhya Pahuja (Melbourne Law School) used the role of corporations to present her highly insightful thoughts about the NIEO, which Pahuja framed as an example for the “critical instability” of international law.

The Past as Future

Why think about the history of international law? In the introduction, I referred to Orford’s argument that in law the past is present. But the three days in Berlin-Grunewald showed that there is another dimension to add: Listening to the single presentations it became clear that in terms of international economic justice, many of the decolonization era’s argumentative patterns and its protagonist’s visions not only seem to be startlingly up-to-date. But perhaps such historical research might even help us to imagine a just future – through asking what the past could have looked like if other ideas had won in the “battle for international law”.

[1] Anne Orford, The Past as Law or History? The Relevance of Imperialism for Modern International Law, IILJ Working Paper 2012/2, p. 9

[2] Anne Peters/Bardo Fassbender, Introduction: Towards a Global History of International Law, in: Peters/Fassbeder (Eds.), Oxford Handbook of the History of International Law, 2012, p. 14.

Maxim Bönnemann is a Research Fellow at the Chair for Public and Comparative Law, Humboldt University Berlin

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Citation: Maxim Bönnemann, Conference Report: The battle for international law in the decolonization era, in: TRAFO – Blog for Transregional Research, 8.5.2016 https://trafo.hypotheses.org/4098